Risenhoover v. Sebelius

UNITED sTArEs DISTRICT CoURr L E D FoR THE DiSTRICT oF coLUMBiA NOv _ 3 ,. ,.,1 FClerk, U.S. Drstr)`cr & 5 ) .,aurts far the Distr)'m @FQZWJEY Paul l\/Iaas Risenhoover, ) umb"" ) Plaintiff, ) ) a , v. ) Civil Action No. 14 ,L§j¢_j , ) Kathleen Sebelius et al., ) ) Defendants. ) ) MEMORANDUM OPINION This matter is before the Court on its initial review of plaintiff s pro se complaint and application to proceed informal pauperi_s‘. The application will be granted and the case will be dismissed pursuant to 28 U.S.C. § 191 S(e)(Z)(B). Under that statute, the Court is required to dismiss a case "at any time" it determines that the complaint fails to state a claim upon which relief can be granted Plaintiff, a resident of Taiwan, seems to claim in a mostly incomprehensible complaint that the General Counsel ofthe U.S. Department of Health and Human Services denied his administrative tort claim "averring [that] a HHS Cl\/Il\/IS employee posted malicious comments on a website, derogatory to my petition . . . ." Compl. at l. Plaintiff claims that the alleged act violated the Federal Tort Claims Act ("FTCA"), the Privacy Act, 5 U.S.C. § 552a, and his `“civil and constitutional rights." ]d. at l-2, Plaintiff does not state any facts to support a claim under either the Privacy Act or the Constitution. See Be//Allanlic Corp. v. Tivombl_v_ 550 U.S, 544, 555 (20()7) (a plaintiffs "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . .") (citations omitted). Plaintiff seeks, among other extraneous relief, an "award [of] damages in compensation for derogation whereof by DEA/HHS and Doe(s) in re comments to e-prescriptions rulemaking at regulations.gov."' Compl. at 6. To the extent that he is seeking monetary damages from the United States for the alleged "malicious comments," the FTCA, under which the United States has consented to be sued for certain torts, does not apply to "[a]ny claim arising out of . . . . libel, slander, misrepresentation [or] deceit." 28 U.S.C. § 268()(h). Therefore, plaintiff has failed to state a claim upon which relief can be granted. A separate Order of dismissal accompanies this l\/lemorandum Opinion. ,/ Date: October jj , 2011 l Among the extraneous relief sought is a request to file electronically. A pro se party must make such a request by "a written motion entitled ‘Motion for CM/ECF Password.’ describing the party’s access to the internet and confirming the capacity to file documents and receive the filings of other parties electronically on a regular basis." LCvR 5.4(b)(2). 2