UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
RODNEY LAIL, et al., )
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Plaintiffs, )
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v. ) Civil Action No. 10-0210 (PLF)
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UNITED STATES GOVERNMENT, et al., )
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Defendants. )
__________________________________________)
OPINION
Pending before the Court are nine motions to dismiss the plaintiffs’ second
amended complaint. Those motions were filed, respectively, by the following defendants or
groups of defendants: (1) Kathy Beers, Jennifer Brewton, David Caldwell, Larry Gainey,
Princess Hodges, Horry County, Mark Keel, John Morgan, Palmetto Health Care, Mike Prodon,
the South Carolina Department of Social Services, the State of South Carolina, the State of South
Carolina Law Enforcement Division, Susan Stroman, Suzanne Tillman, and John Weaver (“the
South Carolina defendants”); (2) Brenda Hughes and Unihealth Post Acute Care of Columbia
(“the Unihealth defendants”); (3) Shawn Markham and Susan Stewart; (4) Andrew Lindemann;
(5) Jay Saleeby; (6) E. Glenn Elliott; (7) Robert E. Lee; (8) the Academy Group, Inc.; and
(9) N. John Benson, David Caldwell, Phil Celestini, the Federal Bureau of Investigation, Paul
Gardner, David M. Hardy, Kerry Haynes, Noel Herold, Thomas Isabella, Jr., Michael
Kirkpatrick, Thomas Marsha, Monte Dell McKee, Matthew Perry, George Skaluba, Chris
Swecker, and the United States (“the federal defendants”).
Also pending before the Court are (1) the pro se plaintiffs’ motion for leave to
proceed in forma pauperis, for an order authorizing the United States Marshals Service to effect
service on plaintiffs’ behalf, and for appointment of counsel, (2) plaintiffs’ “motion for firewall
protection,” and (3) plaintiffs’ motion for leave to file a third amended complaint. Because at
least one of the plaintiffs appears to have substantial financial resources, the Court will deny the
motion to proceed in forma pauperis. Furthermore, because the Court lacks personal jurisdiction
over many defendants, and the second amended complaint fails to state a claim as to the other
defendants, the pending motions to dismiss will be granted. The Court will deny as futile
plaintiffs’ motion for leave to file a third amended complaint, and will deny as moot plaintiffs’
remaining motion for relief.1
1
The following documents were among those considered by the Court in resolving
the pending motions: plaintiffs’ second amended complaint (“2d Am. Compl.”); plaintiffs’
motion for leave to file a third amended complaint (“Mot. for 3d Am. Compl.”); the South
Carolina defendants’ motion to dismiss (“SC MTD”); the plaintiffs’ opposition to that motion
(“SC Opp.”); the reply in support of that motion (“SC Reply”); the Unihealth defendants’ motion
to dismiss (“Unihealth MTD”); plaintiffs’ opposition to that motion (“Unihealth Opp.”); the
reply in support of that motion (“Unihealth Reply”); Shawn Markham and Susan Stewart’s
motion to dismiss (“Markham/Stewart MTD”); plaintiffs’ opposition to that motion
(“Markham/Stewart Opp.”); the reply in support of that motion (“Markham/Stewart Reply”);
Andrew Lindeman’s motion to dismiss and related filings (“Lindeman MTD” and “Lindeman
Opp.”); Jay Saleeby’s motion to dismiss and related filings (“Saleeby MTD” and “Saleeby Opp.);
Robert E. Lee’s motion to dismiss and related filings (“Lee MTD” and “Lee Opp.”); the
Academy Group’s motion to dismiss and related filings (“Acad. MTD,” “Acad. Opp.,” and
“Acad. Reply”); E. Glenn Elliott’s motion to dismiss and related filings (“Elliott MTD” and
“Elliott Opp.”); the federal defendants’ motion to dismiss and related filings (“Fed. MTD” and
“Fed. Opp.”); the plaintiffs’ motion to proceed in forma pauperis and for other relief (“IFP
Mot.”); and the plaintiffs’ “motion for firewall protection” (“Firewall Mot.”).
2
I. BACKGROUND
A. South Carolina Litigation
Most of the claims in the plaintiffs’ second amended complaint grow out of or are
related to certain proceedings before the United States District Court for the District of South
Carolina that took place between 2002 and 2008. In 2002, seven of the individuals currently
proceeding as plaintiffs in this action — James Spencer, Rodney Lail, Irene Santacroce, Ricky
Stephens, Marguerite Stephens, Doris Holt, and Nicholas Williamson — along with an entity
called Southern Holdings, Inc., filed a civil complaint in the South Carolina district court. See
Southern Holdings v. Horry County, Civil Action No. 02-1859, Complaint at 1 (D.S.C. May 29,
2002) (“SC Compl.”). Each named individual plaintiff resided in South or North Carolina and
was in some way connected with James Spencer and/or Southern Holdings, of which Mr.
Spencer was allegedly the CEO and president. Id. ¶ 33. Irene Santacroce was the corporate
secretary of Southern Holdings, id. ¶ 4; Ricky and Marguerite Stephens held equity in the
corporation, id. ¶ 5; Nicholas Williamson sat on the corporation’s board, id. ¶ 7; Doris Holt was
Mr. Spencer’s mother, id. ¶ 6; and Rodney Lail was a friend or acquaintance of Mr. Spencer. See
id. ¶ 89.
The South Carolina complaint named twenty defendants, including the state of
South Carolina; Horry County, South Carolina; the Horry County Police Department; and
several police officers employed by Horry County or Myrtle Beach, South Carolina. SC Compl.
at 1. The plaintiffs alleged that they had been the targets of a variety of tortious actions arising
out of an attempt by two shareholders and former corporate officers of Southern Holdings, Ancil
B. Garvin, III, and David Smith, to wrest control of the company from Mr. Spencer. Id. ¶¶ 33-37.
3
More specifically, Mr. Garvin and Mr. Smith allegedy “made telephone calls and sent e-mails
and correspondence to Southern Holdings’ shareholders, business partners and customers” in
which they falsely “accus[ed]” three plaintiffs — Mr. Spencer, Mr. Williamson, and Ms.
Santacroce — “of various crimes and immoral acts.” Id. ¶ 40. Furthermore, in June of 2000, Mr.
Garvin and Mr. Smith allegedly “orchestrated the entry of an invalid and illegitimate listing for
Spencer’s arrest in the NCIC [National Crime Information Center], a national database of
outstanding felony warrants used by law enforcement agencies.” SC Compl. ¶ 43. Because of
the listing of Mr. Spencer as subject to arrest, an assistant district attorney in North Carolina —
also named as a defendant in the suit — arranged for “the extradition of Spencer from South
Carolina” to North Carolina. Id. ¶ 44. An arrest warrant was issued for Mr. Spencer in South
Carolina by James Albert Allen, Jr., a police officer in Horry County and also a named defendant
in the South Carolina case. Id. ¶ 47. Mr. Allen “maliciously and intentionally issued” the
warrant “knowing that [the North Carolina warrant upon which it was based] was invalid.” Id.
¶ 50.
On June 7, 2000, while searching for Mr. Spencer in order to effect his arrest,
various police officers allegedly visited and searched the homes of three plaintiffs without search
warrants and without probable cause. See 2d Am. Compl. ¶¶ 51-65. The same evening, the
plaintiffs claimed, the car of plaintiff Ricky Stephens was pulled over by a defendant police
officer, who “maliciously and intentionally pulled over Stephens’ vehicle for the sole purpose of
scaring, intimidating and humiliating Stephens.” Id. ¶¶ 66-74. Two named defendants “and
other unidentified individuals” were said to have “repeatedly threatened, harassed and stalked”
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some plaintiffs, “engag[ing] in numerous and continuous acts designed and intended to
intimidate and scare them.” Id. ¶ 75.
Although a court invalidated the South Carolina arrest warrant for James Spencer
in July 2000, on August 5, 2000, Horry County police officers pulled over the car occupied by
Mr. Spencer and co-plaintiff Rodney Lail and arrested Mr. Spencer. SC Compl. ¶¶ 89-93. Mr.
Spencer was handcuffed and “put in the back of [a police] car without air conditioning in
extremely hot temperatures with the windows rolled up.” Id. ¶ 99. The arresting officers
allegedly learned by contacting their dispatcher that there was no longer an outstanding warrant
for Mr. Spencer’s arrest, but they nevertheless left Mr. Spencer handcuffed in the police car
while they searched his vehicle. Id. ¶ 109. After the search, Mr. Spencer was charged “with
unlawful possession of a firearm and giving false information to a law enforcement officer.” Id.
¶ 116. He spent three days in jail before posting bond. Id. ¶ 118. The charges against Mr.
Spencer were eventually dismissed. Id. ¶ 124. According to the South Carolina complaint, there
had never been probable cause for the arrest of Mr. Spencer, for the search of his car, or for the
filing of charges against him. Id. ¶¶ 109, 117.
The South Carolina complaint alleged that the defendants were liable for civil
conspiracy, false arrest and imprisonment, malicious prosecution, abuse of process, assault and
battery, wrongful discharge, conversion, intentional infliction of emotional distress, tortious
interference with contract, libel, slander, infringement upon the plaintiffs’ civil rights in violation
of 42 U.S.C. § 1983, and violations of the Racketeer Influenced and Corrupt Organizations Act,
18 U.S.C. §§ 1961 et seq. SC Compl. ¶¶ 127-222. Once the South Carolina proceedings had
reached the discovery stage, the plaintiffs indicated that they had retained an expert who would
5
opine that three police videotapes depicting the August 6, 2000 arrest of Mr. Spencer had been
“altered or edited.” Southern Holdings v. Horry County, Civil Action No. 02-1859, Horry
County’s Supplemental Motion to Exclude Plaintiffs’ Videotape Expert at 2 (D.S.C. July 14,
2005). In response, the defendants informed the plaintiffs that an FBI expert, Noel Herold,
would testify that the tapes had not been altered. See Southern Holdings v. Horry County, Civil
Action No. 02-1859, Horry County’s Supplemental Motion to Exclude Plaintiffs’ Videotape
Expert at 2 (D.S.C. July 14, 2005).
The plaintiffs protested the proffer of Mr. Herold as an expert on numerous
grounds, arguing that (1) the FBI had refused to produce “documentation . . . concerning the FBI
protocols, procedures, standards and manuals pertaining to the examination of videotapes”;
(2) the FBI had not provided unredacted versions of Mr. Herold’s “working papers”; (3) “the FBI
refused to identify and in fact conealed the name of at least one other party involved in the
examination of the three police videotapes”; (4) the CV provided for Mr. Herold did not contain
sufficient detail regarding prior legal testimony; and (5) the defendants had “failed to provide
legitimate and standard third party documentation showing a chain of custody” for the videotapes
“to allow the Plaintiffs to review the processes’ integrity.” Southern Holdings v. Horry County,
Civil Action No. 02-1859, Plaintiffs’ Motion to Strike Noel Herold As an Expert Witness, at 2-3
(D.S.C. Mar. 26, 2007). Before the court ruled on that motion, the case progressed to trial, and a
jury was selected on May 8, 2007. The jury had not yet been sworn, however, when plaintiffs’
counsel informed the court that the parties had settled the case, and the complaint was dismissed
with prejudice. See Southern Holdings v. Horry County, Civil Action No. 02-1859, Minute
6
Entry (D.S.C. May 9, 2007); id., Order at 1 (D.S.C. Aug. 13, 2008) (summarizing the steps
leading to the dismissal of plaintiffs’ complaint).
After the dismissal of their complaint, the plaintiffs, at that point proceeding pro
se, made numerous attempts to persuade the court to reopen the case. See Southern Holdings v.
Horry County, Civil Action No. 02-1859, Order at 2-3 (D.S.C. Aug. 13, 2008) (summarizing the
plaintiffs’ attempts to “rescind the settlement agreement and vacate the May 9, 2007 Order
dismissing the case with prejudice”). Among other things, the plaintiffs argued that their
complaint should be reinstated because of “alleged fraud and concealment of evidence by the
Defendants and their lawyers.” Id. at 3. The plaintiffs claimed that after the settlement of their
case, they had discovered new evidence so important as to justify rescission of their settlement
agreement. See id. This evidence included (1) a published article by Mr. Herold; (2) a copy of
Mr. Herold’s resume that had been submitted in an unrelated civil case; (3) FBI procedural
manuals; and (4) plaintiffs’ interviews of three FBI employees, which supposedly “refuted key
issues concerning FBI evidentiary and examination procedures,” “confirmed that Herold’s
laboratory worksheet used during his analysis of the [police] videotape was missing key
information,” and “establishe[d] Herold’s perjury during his deposition.” Id. at 3-4.
The district court rejected the plaintiffs’ arguments that they were entitled to
rescission of the settlement agreement, finding that all of the evidence identified by the plaintiffs
was “merely impeaching or cumulative evidence or evidence that could have been discovered
through the exercise of due diligence” in a more timely manner. Southern Holdings v. Horry
County, Civil Action No. 02-1859, Order at 4-5 (D.S.C. Aug. 13, 2008). The court also noted
that it was “unable to say what effect the ‘newly discovered evidence’ would have had if the case
7
were tried because the case settled.” Id. at 5. Because the plaintiffs had failed to make the
showing necessary for the reopening of their case, and because their arguments had been
untimely, the court denied their motion to vacate the order dismissing the complaint. See id. at 9.
On appeal, the district court’s decision was affirmed by the Fourth Circuit. See Lail v. Horry
County, 363 Fed. Appx. 223, 226 (4th Cir. Jan 22, 2010).
B. Allegations of the Second Amended Complaint
In addition to the seven plaintiffs who participated in the South Carolina
litigation, the second amended complaint currently before this Court names as plaintiffs Bruce
Benson, Dan Green, and Virginia Williamson. See 2d Am. Compl. ¶¶ 1, 2, 10. Roughly thirty
paragraphs of the complaint, which contains 329 paragraphs and spans 131 pages, recount largely
the same allegations that were made in the South Carolina litigation: the alleged effort to take
control of Southern Holdings, the alleged harassment of various plaintiffs connected to Southern
Holdings, the allegedly unlawful arrest of Mr. Spencer on August 6, 2000. See id. ¶¶ 57-89.
Numerous additional paragraphs allege that various law enforcement agencies and employees at
the state and federal levels conspired to hide evidence of the civil rights violations at issue in the
South Carolina lawsuit. See id. ¶¶ 90-144. Specifically, according to the second amended
complaint, defendant John Weaver, in his capacity as counsel for Horry County, South Carolina,
“wrongly hid public documents that evidence the civil rights violations,” and defendant John
Morgan, chief of the Horry County Police, “assisted and/or directed the hiding and/or destruction
of incriminating evidence.” Id. ¶¶ 90-91.
8
The plaintiffs further allege that the FBI assisted Horry County officials in
covering up evidence of the claimed civil rights violations because the FBI wanted to avoid
“public awareness of the ease of civilian access to commit criminal acts using the FBI-NCIC
system.” 2d Am. Compl. ¶ 92. This claim is presumably a reference to plaintiffs’ allegation that
either two former corporate officers of Southern Holdings, see SC Compl. ¶ 43, or an assistant
district attorney in North Carolina, see 2d Am. Compl. ¶ 70, engineered the inclusion of James
Spencer’s name and a warrant for his arrest in the National Criminal Information Center
database. The FBI would want to conceal such “civilian” tampering with the database, the
plaintiffs say, because “[t]he FBI is actively looking to expand its databases on United States
Citizens and seeking large amounts of funding from Congress for such expansion. Publicity of
misuse of such databases would be counterproductive to the FBI’s agenda for expansion.” Id.
¶ 92.
Not only the FBI, but also the South Carolina Law Enforcement Division
(“SLED”) is alleged to have participated in a cover-up of the civil rights violations alleged by the
plaintiffs. See 2d Am. Compl. ¶ 93. SLED’s “motivation” for assisting in such a cover- up was
allegedly “financial . . . in that the South Carolina Insurance Reserve Fund was the South
Carolina state agency that would have been financially responsible for the damages associated
with civil rights violations.” Id. In furtherance of this claimed cover-up, the plaintiffs say, the
FBI refused to investigate the matter when plaintiff Nicholas Williamson reported to defendant
Phil Celestini, a special agent with the FBI, “the criminal misuse of the FBI-NCIC to facilitate
the civil rights violations . . . and the extortion of Plaintiff James Spencer and the civil rights
violations under color of law suffered by [Nicholas] Williamson and [co-plaintiff] Virginia
9
Williamson.” Id. ¶ 94. The FBI continued not to investigate plaintiffs’ claims even after various
plaintiffs complained about the alleged civil rights violations to the FBI on multiple occasions.
See id. ¶¶ 99, 103-06, 135-36, 138. Furthermore, plaintiffs allege, one FBI special agent shared
evidence given to him by the plaintiffs, including police videotapes of Mr. Spencer’s August
2000 arrest, with SLED. Id. ¶ 106.
Plaintiffs further allege that during the South Carolina litigation, “[t]he FBI
intentionally falsified ‘certified’ NCIC reports,” removing “the incriminating inquiries that
evidenced civil rights crimes . . . by the local law enforcement officers.” 2d Am. Compl. ¶ 117.
“These fabricated FBI ‘certified’ reports were submitted by FBI personnel in Washington to
United States Senator Lindsey Graham, thus committing fraud on an unwitting United States
Senator.” Id. ¶ 118. According to the plaintiffs, the FBI also “joined in a conspiracy . . . to
cover-up the illegal editing of the police videotapes” during the South Carolina litigation. Id.
¶ 121. The FBI allegedly effected the cover-up in question by “fabricat[ing]” the CV of Noel
Herold and the “SLED Chain of Custody concerning the suspect police videotapes.” Id. ¶ 124.
After making the allegations concerning the South Carolina litigation that are
described above, the focus of the second amended complaint shifts abruptly. According to the
plaintiffs, in the first half of 2009, Mr. Spencer and his elderly mother, plaintiff Doris Holt,
began filing administrative claims against the defendants under the Federal Tort Claims Act and
its counterpart in South Carolina statutory law. See 2d Am. Compl. ¶ 145. According to the
second amended complaint, employees of the state of South Carolina reacted to the filing of
those claims by arranging for Ms. Holt to be removed from her home and placed in protective
custody. See id. ¶ 152. More specifically, plaintiffs claim that defendant Susan Stroman, an
10
employee of the South Carolina Department of Social Services (“DSS”), filed a complaint in
family court in which she made “contrived and baseless claims” that Mr. Spencer had abused his
mother and threatened Ms. Stroman with guns. Id. ¶¶ 154-158. Based on that complaint, the
family court issued an order removing Ms. Holt from Mr. Spencer’s custody and placing her in
the care of the state of South Carolina on July 29, 2009. Id. ¶ 158. When Mr. Spencer
subsequently spoke to Ms. Stroman, she told him that she had “photographic evidence showing
where [he] had beat[en] his mother in the face.” Id. ¶ 164. These photos, however, according to
plaintiffs, were “fabricate[d]” by Ms. Stroman and an employee of defendant Palmetto Senior
Care, the eldercare facility where Ms. Holt spent her days. Id. ¶ 161. Ms. Stroman and the
Palmetto employee, defendant Jennifer Brewton, placed “makeup on 92-year-old Doris Holt” to
create the look of “facial injuries” and “then took photographs.” Id.
A South Carolina family court held several hearings regarding Ms. Holt’s case in
the summer and fall of 2009. See 2d Am. Compl. ¶¶ 170, 186, 189. Although “it was put on the
Court record” at a hearing held on September 5, 2009, that Mr. Spencer “had not physically
abused his mother,” the family court still refused to release Ms. Holt from protective custody and
has not reinstated Mr. Spencer’s authority to exercise power of attorney on his mother’s behalf.
Id. ¶¶ 187-90. Ms. Holt allegedly remains “at UniHealth acute care facility[,] where she was
placed by DSS,” and where, according to the second amended complaint, she “was denied her
care benefits under her comprehensive policy with Palmetto Senior Care . . . and suffered cruel
and unwarranted treatment.” Id. ¶ 194.
Based on the allegations summarized above, the plaintiffs contend that they are
entitled to relief under the Federal Tort Claims Act (“FTCA”), Bivens v. Six Unknown Named
11
Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), 42 U.S.C. § 1983, the Racketeer
Influenced and Corrupt Organizations Act, the South Carolina Tort Claims Act, and South
Carolina common law. See 2d Am. Compl. ¶¶ 218-305. They claim damages as follows: James
Spencer, $80 million, id. ¶¶ 312-13; Rodney Lail, $12 million, id. ¶ 316; Irene Santacroce, $15
million, id. ¶ 322; Ricky Stephens, $7 million, id. ¶ 323; Marguerite Stephens, $2 million, id.
¶ 324; Doris Holt, $35 million, id. ¶ 325; Nicholas Williamson, $25 million, id. ¶ 326; Virginia
Williamson, $10 million, id. ¶ 327; Bruce Benson, $20 million, id. ¶ 328; and Dan Green, $25
million. Id. ¶ 329.
C. Miscellaneous Matters
On February 22, 2011, Mr. Spencer, who apparently has filed all documents
submitted on behalf of the plaintiffs in this matter, filed a document entitled “Emergency Motion
for Court Orders to Perform Autopsy and Preserve Records.” See Docket No. 86. In that motion
he represented that his mother, plaintiff Doris Holt, had passed away on February 19, 2011,
“while in the custody of Defendant South Carolina Department of Social Services.” Id. at 1. He
asserted that her death “was due to dehydration and starvation while being held captive against
her will at the facility of Defendant UniHealth in Orangeburg, South Carolina,” id., and requested
that the Court order, among other things, that a “complete autopsy” be “performed at the Medical
University of South Carolina in Charleston, South Carolina due to the suspicious nature of the
death.” Id. at 5. Because this Court was not convinced that it had jurisdiction to enter such an
order, it denied Mr. Spencer’s motion on February 24, 2011.
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On March 22, 2011, the plaintiffs moved for leave to file a third amended
complaint. Although the plaintiffs have failed to enumerate in their motion the specific
differences between the proposed third amended complaint, which is 121 pages long, and the
operative second amended complaint, which is 131 pages long, they state that the differences
consist of the “delet[ion of] the Rackeeteer Influenced and Corruption [sic] Organizations Act
. . . cause of action against the Defendants and [the] adjust[ment of] the complaint to reflect the
death of Plaintiff Doris Holt.” Mot. for 3d Am. Compl. at 7.
II. MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT
The Court will “freely give leave [to amend a complaint] when justice so
requires,” FED . R. CIV . P. 15(a)(2), and “[i]t is common ground that Rule 15 embodies a
generally favorable policy toward amendments.” Howard v. Gutierrez, 237 F.R.D. 310, 312
(D.D.C. 2006) (quoting Davis v. Liberty Mutual Insurace Co., 871 F.2d 1134, 1136-37 (D.C. Cir.
1989)). Where amendment would be futile, however, the Court may in its discretion deny such a
motion. See Vreven v. AARP, 604 F. Supp. 2d 9, 13 (D.D.C. 2009) (quoting Foman v. Davis,
371 U.S. 178, 182 (1962)). The third amended complaint that the plaintiffs propose to file
differs only slightly from the operative second amended complaint and remedies none of the
deficiencies identified by the Court in the remainder of this Opinion. As a result, the Court will
deny as futile the plaintiffs’ motion for leave to amend their complaint a third time.
III. FEDERAL DEFENDANTS’ MOTION TO DISMISS
The various defendants who are employees or agencies of the United States
government — the United States, the FBI, and the numerous FBI officials and special agents who
13
are alleged to have manufactured or altered evidence related to the South Carolina litigation or to
have refused to investigate plaintiffs’ civil rights claims — have moved to dismiss the claims
against them pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
See Fed. MTD at 5-6. Because the Court concludes that plaintiffs have failed to state a claim for
relief against any of the federal defendants, the motion to dismiss all claims against those
defendants will be granted.
A. Standard of Review
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows dismissal of a
complaint if a plaintiff fails “to state a claim upon which relief can be granted.” FED . R. CIV . P.
12(b)(6). “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of
the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests[.]’” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 554 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see
also Erickson v. Pardus, 551 U.S. 89 (2007). Although “detailed factual allegations” are not
necessary to withstand a Rule 12(b)(6) motion to dismiss, Bell Atlantic Corp. v. Twombly, 550
U.S. at 555, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(citation omitted).
On a motion to dismiss under Rule 12(b)(6), the Court “must accept as true all of
the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. at 94; see also
Bell Atlantic Corp. v. Twombly, 550 U.S. at 555. The complaint “is construed liberally in the
[plaintiff’s] favor, and [the Court should] grant [the plaintiff] the benefit of all inferences that can
14
be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.
Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those
inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff’s
legal conclusions. See Kowal v. MCI Communications Corp., 16 F.3d at 1276; Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
The Court generally may not rely on facts “outside” the complaint in deciding a
motion for dismissal pursuant to Rule 12(b)(6), but it may consider, among other things, “matters
of public record.” 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE &
PROCEDURE § 1357 (3d ed. 2004). To provide context for the pro se plaintiffs’ claims, the Court
has reviewed the record of the South Carolina litigation, to the extent that it is publicly available.
B. Damages and Constitutional Claims
Plaintiffs assert that the various federal defendants are liable for (1) violations of
the Federal Tort Claims Act (“FTCA”), 2d Am. Compl. ¶ 220; (2) constitutional violations,
pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S.
388 (1971), 2d Am. Compl. ¶ 250; (3) 42 U.S.C. §§ 1983, 1981, & 1985, id. ¶¶ 257-258; (4) the
Racketeer Influenced and Corrupt Organizations Act (“RICO”), id. ¶ 262; (5) intentional
infliction of emotional distress, id. ¶¶ 277-280; and (6) civil conspiracy. Id. ¶ 283. The
complaint fails to state a claim for relief against the federal defendants on any of those grounds.
Certain flaws inherent in plaintiffs’ second amended complaint are fatal to
multiple theories of the federal defendants’ liability. First, the Court notes that while the
complaint alleges a wide array of facts concerning events allegedly occurring over roughly a ten-
year period, the alleged actions that may be plausibly attributed to any of the federal defendants
15
are relatively few. Because the plaintiffs’ factual allegations fail to permit any reasonable
inference that any federal defendant was connected either to the civil rights violations alleged in
the South Carolina litigation or the placement of Doris Holt in state custody, those occurrences
may not serve as the basis for any claims against the federal defendants. Cf. 2d Am. Compl.
¶ 260 (suggesting that FBI employees “cause[d] the constitutionally impermissible, retaliatory
removal of Plaintiff Doris Holt from her home).
Second, the plaintiffs have failed to state a plausible claim that they were injured
by the actions of the federal defendants that are alleged in the second amended complaint. In
general terms, the actions alleged in the complaint to which a federal defendant may possibly be
linked are those claiming that (1) the FBI refused to investigate the plaintiffs’ civil rights
complaints, see 2d Am. Compl. ¶¶ 99, 103-06, 135-36, 138; (2) one or more FBI employees tried
to conceal the fact that police videotapes to be used as evidence during the South Carolina
litigation had been altered, id. ¶ 121; (3) one or more FBI employees falsified documents related
to the NCIC and/or the background of Noel Herold, id. ¶¶ 117, 124; and (4) FBI employees
refused to provide various agency manuals on internal procedure to the plaintiffs. Id. ¶ 235. The
plaintiffs do not make any specific factual allegations concerning injuries allegedly attributable to
those acts. Where the plaintiffs do allege specific injuries, those injuries bear no plausible
connection to the alleged actions of the federal defendants. See, e.g., id. ¶ 316 (“As a result of
Defendants[’] negligent and/or malicious conduct, Plaintiff Rodney Lail has a claim for back pay,
lost wages, and benefits dating back to his termination from the Myrtle Beach Police Department
on November 1, 2000.”); id. ¶ 315 (“As a result of Defendants[’] negligent and/or malicious
conduct, Plaintiff Spencer has chronic PTSD and serious depression and lives in fear for his
16
life.”). Plaintiffs’ other allegations of injury are purely conclusory, in some cases merely
parroting statutory language. See, e.g., id. ¶ 242 (federal defendants “caused personal injury to
one or more Plaintiffs”); id. ¶ 262 (“Defendants are two or more persons or entities that have
conspired and formed one or more interacting entrprises, through a pattern of racketeering
activity — causing injury to business or property of Plaintiffs” (echoing the language of
18 U.S.C. § 1964, which provides a private right of action for persons “injured in [their] business
or property” by certain activities)).
The manner in which the alleged actions of the federal defendants might have
injured any of the plaintiffs is in no way evident from the second amended complaint. Plaintiffs
identify no injury that would have been averted if the FBI had investigated their civil rights
claims. They do not claim that the outcome of the South Carolina litigation would have been
different if not for the alleged actions of the federal defendants. In the absence of any allegation
of any form of injury that might logically flow from the conduct complained of, purely
conclusory allegations of damages fail to rise to the level of plausibility. See Ashcroft v. Iqbal,
129 S. Ct. at 1949 (“[t]hreadbare recitals of [one of] the elements of a cause of action” are not
sufficient to withstand a motion to dismiss). Consequently, plaintiffs have failed to state a claim
for relief based on any theory of liability that is viable only if damages are properly pled; their
claims against the federal defendants based on the FTCA, RICO, and the South Carolina torts of
civil conspiracy and intentional infliction of emotional distress therefore must be dismissed. See
28 U.S.C. § 1346(b) (waiving the sovereign immunity of the United States as to claims for
damages based on “injury or loss of property, or personal injury or death caused by the negligent
or wrongful act or omission of any employee of the Government while acting within the scope of
17
his office or employment”); 18 U.S.C. § 1964 (providing a cause of action under RICO for
persons “injured in [their] business or property” by specified activities); Argoe v. Three Rivers
Behavioral Center, 697 S.E.2d 551, 555 (S.C. 2010) (to prevail on a claim for intentional
infliction of emotional distress, plaintiffs must show that they experienced “emotional distress
[that] was ‘severe’ such that ‘no reasonable man could be expected to endure it’”); Hackworth v.
Greywood at Hammett, LLC, 682 S.E.2d 871, 874 (S.C. Ct. App. 2009) (tort of civil conspiracy
includes as an element a requirement of “special damage”).
Plaintiffs have also failed to state any claim predicated upon an alleged violation
of their constitutional rights by any of the federal defendants. The second amended complaint
alleges that the federal defendants “deprive[d] Plaintiffs of the Constitutional rights of due
process, and rights to equal protection of the law, in acts of obstruction of justice and
commission of fraud upon the court, and deprived the Plaintiffs of the right to a jury trial under
the 7th Amendment and other applicable Amendments of the United States Constitution
including the 1st, 5th, and 14th Amendments.” 2d Am. Compl. ¶ 253. None of the actions
alleged in the complaint and attributable to the federal defendants constituted a violation of any
of the constitutional amendments identified by the plaintiffs. For the same reason that the
complaint fails to allege any injury caused to the plaintiffs by the federal defendants, it also fails
to allege a deprivation of life, liberty, or property — an essential element of a due process claim.
See Zinermon v. Burch, 494 U.S. 113, 125 (1990). Furthermore, the plaintiffs were in no way
deprived of a jury trial, in violation of the Seventh Amendment or otherwise; the record of the
South Carolina litigation shows that the plaintiffs, who were represented by counsel, voluntarily
waived that right by entering into a settlement agreement. Finally, there is no apparent factual
18
foundation in the complaint for plaintiffs’ claims that the federal defendants violated either their
First Amendment rights or the Equal Protection Clause. As a result, plaintiffs’ claims against the
federal defendants under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics,
403 U.S. 388 (1971), and 42 U.S.C. §§ 1981, 1983, and 1985 will be dismissed, leaving no
remaining valid claims against the federal defendants.2 Because the liability of non-federal
defendant the Academy Group is predicated upon its employment of Noel Herold, a federal
defendant, see 2d Am. Compl. ¶¶ 286-87, all claims against the Academy Group will also be
dismissed.
IV. REMAINING DEFENDANTS’ MOTIONS TO DISMISS
All remaining defendants — Kathy Beers, Jennifer Brewton, David Caldwell,
Larry Gainey, Princess Hodges, Horry County, Mark Keel, John Morgan, Palmetto Health Care,
Mike Prodon, the South Carolina Department of Social Services, the State of South Carolina, the
State of South Carolina Law Enforcement Division, Susan Stroman, Suzanne Tillman, John
Weaver, Brenda Hughes, Unihealth Post Acute Care of Columbia, Shawn Markham, Susan
Stewart, Andrew Lindemann, Jay Saleeby, E. Glenn Elliott, and Robert E. Lee (for ease of
reference, “the nonresident defendants”) — contend that they are not subject to personal
jurisdiction in the District of Columbia and therefore that the plaintiffs’ claims against them
2
Of course, claims against federal employees may rarely, if ever, be brought under
42 U.S.C. § 1983, see Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1104 (D.C. Cir. 2005), and
may not be brought against federal employees acting in their official capacity under Section 1981
or 1985. See Roum v. Bush, 461 F. Supp. 2d 40, 46 (D.D.C. 2006). Indeed, all of plaintiffs’
legal theories are flawed in numerous fundamental ways. In the interest of brevity, the Court has
chosen to highlight only so many of those flaws as are sufficient to warrant dismissal of
plaintiffs’ claims.
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should be dismissed under Rule 12(b)(2) of the Federal Rules of Civil Procedure. It is the
plaintiffs’ burden to make a prima facie showing that this Court has personal jurisdiction over a
defendant. See First Chicago Int’l v. United Exch. Co., 836 F.2d 1375, 1378-79 (D.C. Cir.
1988); Davis v. Grant Park Nursing Home LP, 639 F. Supp. 2d 60, 65 (D.D.C. 2009).
“Plaintiff[s] must allege specific facts on which personal jurisdiction can be based; [they] cannot
rely on conclusory allegations.” Moore v. Motz, 437 F. Supp. 2d 88, 91 (D.D.C. 2006) (citations
omitted).
The plaintiffs’ only effort to connect most of the nonresident defendants in any
way to the District of Columbia is their claim that those defendants were part of a vast conspiracy
encompassing the federal defendants, and that the federal defendants took actions in the District
of Columbia. See SC Opp. at 9; Markham/Stewart Opp. at 2-8; Elliott Opp. at 3-5; Saleeby Opp.
at 4-5; Lee Opp. at 3-5; Lindemann Opp. at 6; Unihealth Opp. at 9-11. As the Court already has
explained, however, the plaintiffs have stated no valid claims, for civil conspiracy or otherwise,
against the federal defendants, and their alleged actions therefore cannot serve as the basis for the
exercise of personal jurisdiction over the nonresident defendants, none of whom are claimed to
have taken any specific action in or directed toward the District of Columbia.
With respect to the State of South Carolina, Palmetto Senior Care, and Unihealth,
the plaintiffs suggest that personal jurisdiction is proper in the District of Columbia because
those defendants receive funding from and are regulated by the federal government. See SC
Opp. at 12; Unihealth Opp. at 9-11. This argument fails because, under the “government
contacts” doctrine, “‘a defendant’s relationships with federal agencies do not enter the calculus of
minimum contacts with the District of Columbia for jurisdictional purposes.’” Ficken v. Rice,
594 F. Supp. 2d 71, 75 (D.D.C. 2009) (quoting Chrysler Corp. v. General Motors Corp., 589 F.
20
Supp. 1182, 1196 (D.D.C. 1984)); see Bechtel & Cole v. Graceland Broadcasting, Inc., 18 F.3d
953 (table), 1994 WL 85047, at *1-2 (D.C. Cir. 1994) (“The government contacts doctrine bars
courts in the District of Columbia from exercising personal jurisdiction based solely on the
defendant’s contacts with a federal instrumentality.”); Jung v. Ass’n of Am. Med. Colleges, 300
F. Supp. 2d 119, 139 (D.D.C. 2004) (“‘The District of Columbia’s unique character as the home
of the federal government requires this exception in order to maintain unobstructed access to the
instrumentalities of the federal government.’” (citation omitted)). The plaintiffs therefore have
failed to establish that any nonresident defendant is subject to the exercise of personal
jurisdiction by this Court. As a result, all claims against those defendants must be dismissed.
V. REMAINING MATTERS
For the reasons outlined above, all claims against the defendants specifically
named in the plaintiffs’ second amended complaint will be dismissed, leaving as defendants in
this case only “[u]nknown John Does.” 2d Am. Compl. ¶ 51. The record does not reflect that
any individual initially identified as a John Doe has been served with process. On June 21, 2010,
the Court ordered the plaintiffs to effect service on all defendants by July 2, 2010, or to show
cause in writing why claims against defendants who had not been served should not be
dismissed. The plaintiffs responded by filing a motion to proceed in forma pauperis so that they
could request that the United States Marshals Service effect service on their behalf. See IFP
Mot. at 3-4. Then, in July 2010, the plaintiffs filed numerous affidavits attesting that service had
been made on the named defendants. They made no attempt to describe any efforts to identify
the individuals named as “John Does” or to propose a plan for identifying them. Consequently,
the Court finds that the plaintiffs have not shown good cause for their failure to serve the John
21
Doe defendants, and those defendants will be dismissed pursuant Rule 4(m) of the Federal Rules
of Civil Procedure. See Fed. R. Civ. P. 4(m).
As for the plaintiffs’ motion for leave to proceed in forma pauperis, the Court
finds that the plaintiffs have failed to demonstrate that they qualify for such relief. According to
plaintiffs’ own affidavits, one plaintiff, Nicholas Williamson, is a tenured professor at the
University of North Carolina at Greensboro who earns a salary of $116,602 per year and owns
two houses. See Williamson Affid. (attached to IFP Mot. as unnumbered exhibit). The Court is
unconvinced that, as a group, the plaintiffs are unable to pay filing fees, and notes further that the
plaintiffs did in fact pay the required fee upon filing the complaint in this case. Because the
plaintiffs do not qualify to proceed in forma pauperis, and because their claims are dismissed,
their requests for use of the Marshals Service to serve process and for appointment of pro bono
counsel will also be denied.
VI. CONCLUSION
For the foregoing reasons, all pending motions to dismiss the plaintiffs’ second
amended complaint will be granted, and the complaint will be dismissed. The plaintiffs’ motion
to proceed in forma pauperis and for related relief will be denied, as will their motion for leave
to file a third amended complaint. Plaintiffs’ motion for “firewall protection” will be denied as
moot. An Order consistent with this Opinion shall issue this same day.
SO ORDERED.
/s/_______________________________
PAUL L. FRIEDMAN
United States District Judge
DATE: March 24, 2011
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Lail v. United States Government
Combined Opinion