Voinche v. Bush

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
WOODY VOINCHE, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-1081 (EGS)
)
1
BARACK OBAMA, President, )
et al., )
)
Defendants. )
)
______________________________)

MEMORANDUM OPINION

Pending before the Court is defendants’ motion to dismiss

or, alternatively, motion to dismiss and for summary judgment.

Upon consideration of the motion, the response and reply thereto,

the applicable law, the entire record, and for the reasons set

forth below, defendants’ motion is GRANTED.

I. BACKGROUND

Plaintiff Woody Voinche, pro se, “is a private citizen who

has filed numerous lawsuits for personal information and for

information on the activities of government officials that is

unconstitutional[.]” Compl. ¶ 3; see also Defs.’ Mem. at 1 n.1

(explaining that this is plaintiff’s eighteenth lawsuit against

federal government agencies and officers). Plaintiff, who is

seeking “records that were in the possession of the White House

and Executive Office of the President and National Archives,”

Compl. ¶ 3, brings this action against former President George W.

1
Pursuant to Federal Rule of Civil Procedure 25(d),
President Obama, in his official capacity as President, is
automatically substituted as the named defendant.
Bush; President Barack Obama; the Executive Office of the

President (“EOP”); the Office of Administration of the EOP

(“OA”); the Head of the OA, in his official capacity; the

National Archives and Records Administration (“NARA”); the

Archivist of the United States (“Archivist”), in her official

capacity; United States Attorney General Eric Holder (the

“Attorney General”); and ten unknown federal and state agents

(collectively, “defendants”). Compl. ¶¶ 4-12. Plaintiff asserts

causes of action under the Presidential Records Act (“PRA”), 44

U.S.C. § 2201 et seq.; the Administrative Procedure Act (“APA”),

5 U.S.C. §§ 702, 703, 704, and 706; the Federal Records Act

(“FRA”), 44 U.S.C. § 2101 et seq., including the Disposal of

Records Act (“DRA”), 44 U.S.C. §§ 3301-3314; 18 U.S.C. § 3504

(concerning sources of evidence in criminal cases); the Omnibus

Crime Control and Safe Streets Act (“OCCSSA”), 18 U.S.C. §§ 2510-

20; the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C.

§§ 1801-62; “every Amendment to the Constitution of the United

States of America, including but not limited to the 1st, 4th,

5th, 8th, and 14th Amendments”; Misprision of a Felony, 18 U.S.C.

§ 4; the Federal Tort Claims Act(“FTCA”); the Freedom of

Information Act (“FOIA”), 5 U.S.C. § 552; the Privacy Act, 5

U.S.C. § 552a; and 42 U.S.C. §§ 1983, 1984, 1985, 1986 (“the

Civil Rights Acts”). Plaintiff also asserts a “Bivens action for

violation of Plaintiff’s rights under 1st, 4th, 5th, 8th, and

other amendments to the Constitution,” and “is challenging as

2
contrary to law the knowing failure of the defendants to recover,

restore, and preserve certain electronic records and prevent

erasure of emails, telephone records, voice mail, interagency or

intraagency records, wiretaps, or any other records concerning

the numerous emails the Plaintiff sent to the Bush or Obama

administration on the subject of the FBI lawsuits and the

surveillance of the Plaintiff and release of a toxic substance or

any other lawsuits that Plaintiff has filed concerning this

subject[.]” Compl. ¶¶ 1, 2.2

In response to plaintiff’s complaint, defendants filed a

motion to dismiss or, alternatively, motion to dismiss and for

summary judgment. Plaintiff opposes this motion. Defendants’

motion is now ripe for determination by the Court.

II. STANDARDS OF REVIEW

A. Rule 12(b)(1)

On a motion to dismiss for lack of subject matter

jurisdiction pursuant to Federal Rule of Civil Procedure

12(b)(1), the plaintiff bears the burden of establishing that the

2
Plaintiff’s suit arises, at least in part, from a
February 12, 2009 letter that plaintiff sent to President Obama,
the EOP, the OA, the Council on Environmental Quality (“CEQ”),
NARA, and the Archivist seeking “records . . . concerning any
emails [plaintiff] sent to the Whitehouse concerning the FBI
surveillance of [plaintiff], release of a toxic chemical in
[plaintiff’s] home, or any of the lawsuits [plaintiff has] filed
against the FBI making these allegations[,] or documents on the
case against [former President] George Bush and the Executive
Office of the President[,]” as well as “any records the EOP has
obtained from the FBI, CIA, NSA, or any other agency about
[plaintiff].” Compl. ¶ 15.

3
court has jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S.

555, 561 (1992). Because subject matter jurisdiction focuses on

the court’s power to hear a claim, the court must give the

plaintiff’s factual allegations closer scrutiny when resolving a

Rule 12(b)(1) motion than would be required for a Rule 12(b)(6)

motion for failure to state a claim. Macharia v. United States,

334 F.3d 61, 64, 69 (D.C. Cir. 2003). Thus, to determine whether

it has jurisdiction over a claim, the court may consider

materials outside the pleadings where necessary to resolve

disputed jurisdictional facts. Herbert v. Nat’l Acad. of

Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).

B. Rule 12(b)(6)

A motion to dismiss under Rule 12(b)(6) tests the legal

sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235,

242 (D.C. Cir. 2002). A complaint must contain “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 Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (internal quotation marks

and citations omitted). “‘[W]hen ruling on a defendant’s motion

to dismiss, a judge must accept as true all of the factual

allegations contained in the complaint[,]’” Atherton v. D.C.

Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (quoting

Erickson v. Pardus, 551 U.S. 89, 94 (2007)), and grant the

plaintiff “the benefit of all inferences that can be derived from

4
the facts alleged.” Kowal v. MCI Commc'ns Corp., 16 F.3d 1271,

1276 (D.C. Cir. 1994). A court must not, however, “accept

inferences drawn by plaintiffs if such inferences are unsupported

by the facts set out in the complaint. Nor must the court accept

legal conclusions cast in the form of factual allegations.” Id.

In addition, “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “[O]nly a

complaint that states a plausible claim for relief survives a

motion to dismiss.” Id. A complaint must therefore plead

“‘factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.’” Atherton, 567 F.3d at 681 (quoting Iqbal, 129 S. Ct.

at 1949). This, in turn, “asks for more than a sheer possibility

that a defendant has acted unlawfully”; a complaint alleging

facts that are “‘merely consistent with’ a defendant’s liability

. . . ‘stops short of the line between possibility and

plausibility of entitlement to relief.’” Iqbal, 129 S. Ct. at

1949 (quoting Twombly, 550 U.S. at 557).

C. Summary Judgment

Rule 56 permits the Court to grant summary judgment only if

the moving party has shown that there are no genuine issues of

material fact and that the moving party is entitled to judgment

as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v.

Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. District of

5
Columbia, 298 F. 3d 989, 991 (D.C. Cir. 2002). The party seeking

summary judgment bears the initial burden of demonstrating the

absence of a genuine dispute of material fact. See Celotex, 477

U.S. at 323. In determining whether a genuine issue of material

fact exists, the court must view all facts in the light most

favorable to the non-moving party. See Matsushita Elec. Indus.

Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). To

survive a motion for summary judgment, plaintiff cannot merely

rely on the unsupported allegations of the complaint, and must

present more than the “mere existence of a scintilla of evidence”

in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986).

D. Pro se litigants

The pleadings of pro se parties are “to be liberally

construed, and a pro se complaint, however inartfully pleaded,

must be held to less stringent standards than formal pleadings

drafted by lawyers.” Erickson, 551 U.S. at 94 (internal

citations and quotation marks omitted). But “although a court

will read a pro se plaintiff’s complaint liberally,” a pro se

complaint, no less than any other complaint, “must present a

claim on which the Court can grant relief.” Chandler v. Roche,

215 F. Supp. 2d 166, 168 (D.D.C. 2002) (citing Crisafi v.

Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981)). Because pro se

litigants are afforded a more lenient pleading standard, their

failure to respond to an argument is not construed as a

6
concession unless they have been advised of this rule. See Neal

v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992); Fox v. Strickland,

837 F.2d 507, 509 (D.C. Cir. 1988). This Court gave such notice

by way of an Order issued on September 24, 2009.

III. ANALYSIS

As a threshold matter, defendants argue that “[d]ismissal of

this action is appropriate because the Complaint does not contain

a ‘short and plain statement of the claim showing that the

pleader is entitled to relief’ as required by Rule 8(a)(2) of the

Federal Rules of Civil Procedure.” Defs.’ Mot. at 1. Given the

lenient pleading standards governing pro se complaints, see supra

Section II.D, the Court DENIES defendants’ request to dismiss

plaintiff’s complaint in toto for failure to comply with Rule

8(a). Instead, the Court will endeavor to address the specific

allegations contained in plaintiff’s complaint and supporting

materials. Cf. Greenhill v. Spellings, 482 F.3d 569, 572 (D.C.

Cir. 2007) (permitting courts to consider supplemental materials

filed by pro se litigants in order to clarify the precise claims

being urged). Because this case is, in essence, a “case for

records that were in the possession of the White House and

Executive Office of the President and National Archives,” Compl.

¶ 3, the Court will begin by addressing plaintiff’s FOIA claims.

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 A. Plaintiff’s FOIA Claims

On February 12, 2009, plaintiff submitted a “Freedom of

Information-Privacy Act request” to President Obama, EOP, OA,

CEQ, NARA, and the Archivist seeking “records . . . concerning

any emails [plaintiff] sent to the Whitehouse concerning the FBI

surveillance of [plaintiff], release of a toxic chemical in

[plaintiff’s] home, or any of the lawsuits [plaintiff has] filed

against the FBI making these allegations[,] or documents on the

case against [former President] George Bush and the Executive

Office of the President[,]” as well as “any records the EOP has

obtained from the FBI, CIA, NSA, or any other agency about

[plaintiff].” Compl. ¶ 15.3 Defendants seek to dismiss

plaintiff’s FOIA claims against the EOP, OA, former President

George W. Bush, and President Barack Obama for lack of subject

matter jurisdiction, and request summary judgment on plaintiff’s

FOIA claims against CEQ and NARA. For the reasons discussed

below, the Court hereby GRANTS defendants’ motion as to

plaintiff’s FOIA claims.

3
The FOIA requires that an agency, “upon any request for
records which (i) reasonably describes such records and (ii) is
made in accordance with published rules stating the time, place,
fees (if any), and procedures to be followed, shall make the
records promptly available” to the requester. 5 U.S.C.
§ 552(a)(3)(A). The agency must “determine within 20 days
(excepting Saturdays, Sundays, and legal public holidays) after
the receipt of any such request whether to comply with [it] and
shall immediately notify the [requester] of such determination
and the reasons therefor, and of the [requester’s] right . . . to
appeal to the head of the agency any adverse determination.” Id.
§ 552(a)(6)(A)(i).

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 1. FOIA Claims Against the EOP and OA

Defendants assert that plaintiff’s FOIA claims against the

EOP and OA must be dismissed because neither entity is an agency

subject to the FOIA. This Court agrees. See United States v.

Espy, 145 F.3d 1369, 1373 (D.C. Cir. 1998) (explaining that

because the EOP is an umbrella organization, “it has never been

thought that the whole Executive Office of the President could be

considered a discrete agency under FOIA”)4; Citizens for

Responsibility & Ethics in Wash. v. Office of Admin., 566 F.3d

219, 224 (D.D.C. 2009)(concluding that the OA is “not an agency

under FOIA”). Accordingly, the Court hereby GRANTS defendants’

request to dismiss plaintiff’s FOIA claims against these

agencies.

2. FOIA Claims Against Former President Bush and
President Obama

The Court also agrees that plaintiff’s FOIA claims against

former President Bush and President Obama must be dismissed

because “no FOIA claim may be asserted against individual federal

officials.” Whittle v. Moshella, 756 F. Supp. 589, 596 (D.D.C.

1991).5
4
Defendants do not, however, dispute that certain units
within the EOP – such as the CEQ – are agencies subject to the
FOIA. See infra Section III.A.3 (requesting the entry of summary
judgment as to Defendant CEQ).
5
While the records of a former president are generally
subject to FOIA five years after the president leaves office,
FOIA requests for presidential records must be submitted to NARA.
See generally Am. Historical Ass’n v. Nat’l Archives & Records
Admin., 516 F. Supp. 2d 90, 92-95 (D.D.C. 2007) (providing an

9
 3. FOIA Claim Against CEQ

With regards to plaintiff’s FOIA claim against Defendant

CEQ, defendants argue that they are entitled to summary judgment

because plaintiff failed to exhaust his administrative remedies

under the FOIA. Defs.’ Mem. at 21-22; see generally Bruzon v.

DEA, 576 F. Supp. 2d 1, 3 (D.D.C. 2008) (explaining that

“‘[e]xhaustion of administrative remedies is generally required’”

before a FOIA suit may be filed in federal court (quoting Oglesby

v. U.S. Dep’t of Army, 920 F.2d 57, 61 (D.C. Cir. 1990))). In

support of their exhaustion claim, defendants provide the

declaration of Edward Boling, Senior Counsel for Environmental

Policy and Public Information at the CEQ. See Ex. A to Defs.’

Mot., Declaration of Edward Boling (“Boling Decl.”). This

declaration indicates that CEQ received plaintiff’s FOIA request

on March 31, 2009, and immediately processed the request. Boling

Decl. ¶¶ 9-10. Mr. Boling indicates that he was notified by CEQ

staff on April 1, 2009 that “no responsive records had been

found,” and that he, in turn, “directly replied to Plaintiff with

that finding.” Boling Decl. ¶ 10. Indeed, by letter dated April

1, 2009, plaintiff was informed that “[n]o documents responsive

to your request were located,” and was further apprised that he

had “45 days of the date of this letter” to appeal the finding.

overview of the Presidential Records Act and explaining that
presidential records not otherwise restricted “shall be made
available by the Archivist to the public after five years,
generally subject to the conditions of the [FOIA]”).

10
See Attach. to Boling Decl., Letter from Edward Boling to Woody

Voinche dated April 1, 2009. No such appeal was filed. See

Boling Decl. ¶ 11. Because plaintiff does not dispute this

evidence or otherwise contest Defendant CEQ’s request for summary

judgment, the Court hereby GRANTS defendants’ motion for summary

judgment as to Defendant CEQ.

4. FOIA Claim Against NARA

Defendants further argue that Defendant NARA is also

entitled to summary judgment because “NARA complied with the

requirements of FOIA in responding to Plaintiff’s request for

information.” Defs.’ Mem. at 24 (citing 5 U.S.C. § 552(a)(3),

(b)(1)-(b)(9)). In support of their request for summary

judgment, defendants submitted the declaration of Steven Tilley,

Director of the Textual Services Division in the Access Program

Unit of the Office of Records Service at NARA. See Ex. B to

Defs.’ Mot., Declaration of Steven Tilley (“Tilley Decl.”). This

declaration indicates that plaintiff’s FOIA request was processed

by NARA on February 23-24, 2010. Tilley Decl. ¶¶ 9-10.

Plaintiff was advised by letters dated February 24, 2009,

February 26, 2009, and March 11, 2009 that no responsive records

were located. See Tilley Decl. ¶¶ 11-13. After plaintiff filed

an appeal with NARA on March 13, 2009, Deputy Archivist Adrienne

C. Thomas directly replied to plaintiff on April 21, 2009. See

Ex. E to Tilley Decl., Letter from Adrienne C. Thomas to Woody

Voinche dated April 21, 2009. In her letter, Ms. Thomas

11
explained that after “a reasonable search” for “all records

relating to FBI surveillance of you, the release of toxic

chemicals in your home, and any of the lawsuits you have against

the FBI,” no responsive records were found. See Ex. E to Tilley

Decl. The letter further explained that the “George W. Bush

Presidential records that you seek are not subject to request

under the Freedom of Information Act until January 20, 2014,” and

therefore concludes that “your request for Bush presidential

records is not ripe for appeal at this time.” Ex. E to Tilley

Decl.

In his opposition brief, plaintiff fails to dispute or

otherwise respond to defendants’ proffered evidence on this

issue. See Defs.’ Reply Br. at 8 (“Nowhere in Plaintiff’s

Opposition does he even mention his FOIA request to Defendant

NARA, Defendant NARA’s processing thereof, or Defendant NARA’s

sworn declaration attesting to the reasonableness and adequacy of

its search for records responsive to Plaintiff’s request[.]”).

Therefore, having received no objection from plaintiff to entry

of summary judgment on this issue, and having found defendants’

evidence regarding the adequacy of NARA’s search persuasive, the

Court hereby GRANTS defendants’ motion for summary judgment as to

Defendant NARA.

B. Plaintiff’s Non-FOIA Claims

In addition to his FOIA claims, plaintiff also asserts

numerous other causes of action against defendants.

12
Specifically, plaintiff alleges violations of the PRA, the APA,

the FRA, the DRA, 18 U.S.C. § 3504, the OCCSSA, FISA, “every

Amendment to the Constitution of the United States of America,

including but not limited to the 1st, 4th, 5th, 8th, and 14th

Amendments,” 18 U.S.C. § 4, the FTCA, the Civil Rights Acts, as

well as a Bivens claim (collectively, plaintiff’s “non-FOIA

claims”). In their motion, defendants provide detailed analysis

explaining why each of these causes of action must be dismissed.

While the Court will provide its own brief analysis below, the

Court hereby GRANTS defendants’ motion to dismiss plaintiff’s

non-FOIA claims substantially for the reasons articulated in

defendants’ motion and reply brief.

1. Claims Under the FTCA and FISA

Because plaintiff failed to address the arguments raised by

defendants in their motion to dismiss regarding plaintiff’s

purported failure to exhaust his administrative remedies under

either the FTCA or FISA – despite having been warned by the Court

of the necessity to do so – the Court hereby GRANTS defendants’

motion to dismiss plaintiff’s FTCA and FISA claims.

2. Claims Under the FRA, PRA, and DRA

Defendants argue that plaintiff’s claims under the FRA,6

6
The FRA is a collection of statutes that sets forth federal
agencies’ records creation, management, and disposal duties.
Citizens for Responsibility & Ethics in Wash. v. Exec. Office of
the President, 587 F. Supp. 2d 48, 52 (D.D.C. 2008) (citing 44
U.S.C. §§ 2101 et seq., 2901 et seq., 3101 et seq., 3301 et seq).
“FRA is intended to assure, among other things, ‘[a]ccurate and

13
PRA, and DRA must be dismissed because plaintiff fails to assert

any factual allegations in support of these claims. See Defs.’

Mem. at 12-13; Reply Br. at 3-4. Defendants explain that

“[p]laintiff’s complaint offers no factual basis for his belief

that the records he seeks even exist, or to the extent they may

exist, that any such records have been destroyed or are at risk

of destruction.” Defs.’ Mem. at 12. This Court agrees.

Plaintiffs only proffered statement in support of these

claims is: “The emails at issue and other records may have been

improperly deleted or destroyed by the Executive Office of the

President and should be restored from backup tapes. The

Plaintiff also challenges the failure of the Archivist and the

Head of the Office of Administration to take enforcement action

to insure adequate preservation of all federal records.” Compl.

¶ 2.7 Such vague and speculative statements are simply

insufficient to state a cause of action under the PRA, FRA, or

DRA. See generally Iqbal, 129 S. Ct. at 1950 (“To survive a
complete documentation of the policies and transactions of the
Federal Government,’ ‘[c]ontrol of the quantity and quality of
records produced by the Federal Government,’ and ‘[j]udicious
preservation and disposal of records.’” Id. (quoting Armstrong v.
Executive Office of the President, 1 F.3d 1274, 1278 (D.C. Cir.
1993)). The FRA also requires an agency to obtain the
Archivist’s approval before disposing of any federal record. Id.
At 53.
7
While plaintiff’s complaint contains a recitation of
the elements of the FRA, plaintiff does not even recite - much
less address – the elements of a claim under either the PRA or
DRA in either his complaint or opposition brief. See Defs.’ Mem.
at 13; Defs.’ Reply Br. at 3 n.3. The Court, therefore, is
simply left to guess at how plaintiff believes he has pled a
plausible claim for relief under these statutes.

14
motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is

plausible on its face. . . . [W]here the well-pleaded facts do

not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged - but it has not show[n]–

that the pleader is entitled to relief.” (internal quotation

marks omitted)); Jaegar v. United States Gov’t, 524 F. Supp. 2d

60, 64 (D.D.C. 2007) (dismissing a pro se complaint where the

allegations contained in the complaint were “far too conclusory

to satisfy the notice pleading standards of Fed. R. Civ. P.

8(a)”). Accordingly, the Court hereby GRANTS defendants’ motion

to dismiss plaintiff’s FRA, PRA, and DRA claims.

3. APA Claim

With regards to plaintiff’s APA claim, defendants argue that

“[b]ecause FOIA provides an adequate remedy for the relief

Plaintiff seeks under his APA claim, the Court lacks subject

matter jurisdiction to consider that claim.” Defs.’ Mem. at 13;

see generally Bennett v. Spear, 520 U.S. 154, 162 (1997) (“[T]he

APA by its terms independently authorizes review only when ‘there

is no other adequate remedy in a court[.]’” (quoting 5 U.S.C.

§ 704)). In response, plaintiff argues that “the APA authorizes

review of a claim that the agencies [sic] policies are arbitrary

and capricious and do not comport with the FRA.” Pl.’s Opp’n Br.

at 11; see also Pl.’s Opp’n Br. at 11 (citing Armstrong v. Bush,

924 F.2d 282, 296 n.12 (D.C. Cir. 1991) for the proposition that

15
private litigants may sue under the APA to require an agency head

and archivist to take action to prevent the unlawful destruction

or removal of records). While it is undoubtedly true that “a

private party can sue under the APA to obtain a declaration that

an agency’s recordkeeping practices are contrary to law,”

Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of

Homeland Sec., 592 F. Supp. 2d 111, 124 (D.D.C. 2009), plaintiff

has failed to allege that “‘the [agency’s] recordkeeping

guidelines and directives are arbitrary and capricious.’” Id.

(quoting Armstrong, 924 F.2d at 297)). Therefore, because

“[p]laintiff has not asserted any facts suggesting that the

records he seeks are not being preserved in accordance with the

FRA, let alone exist,” Defs.’ Reply Br. at 4, the Court hereby

GRANTS defendants’ request to dismiss plaintiff’s APA claim.

4. Criminal Code Claims

Plaintiff also invokes several sections of the federal

criminal code as a basis for his action: (i) 18 U.S.C. § 3504;

(ii) 18 U.S.C. § 4; and (iii) OCCSSA, 18 U.S.C. §§ 2510-2520.

Defendants argue that “none of these statutes provides Plaintiff

with a cause of action here,” Defs.’ Mem. at 14; this Court

agrees. With regards to § 3504, this claim must fail because

§ 3504 does not provide plaintiff with an independent cause of

action, rather it merely “establishes procedures to be followed

‘upon a claim by a party aggrieved that evidence is inadmissible

because’ of an illegal interception” in any trial, hearing, or

16
other proceeding. Gelbard v. United States, 408 U.S. 41, 54

(1972). Plaintiff’s claims under § 4 of the criminal code -

misprision of felony - must fail for the same reason. See, e.g.,

Keyter v. Bush, No. 03-2496, 2004 U.S. Dist. LEXIS 29046, at *8

(D.D.C. Aug. 4, 2004) (dismissing plaintiff’s misprision of

felony claim because the statute “do[es] not provide for a

private cause of action”). Plaintiff’s claim under OCCSSA must

also be dismissed because “[a]lthough the Omnibus Crime Control

and Safe Streets Act allows for the recovery of civil damages,

the United States is specifically exempted.” Voinche v. Exec.

Office of the President, No. 06-1272 (D.D.C. June 12, 2007)

(citing 18 U.S.C. § 2520). Accordingly, the Court hereby GRANTS

defendants’ request to dismiss these claims as well.

5. Constitutional Claims

In his complaint, plaintiff also asserts claims under

“every Amendment to the Constitution of the United States of

America, including but not limited to the 1st, 4th, 5th, 8th, and

14th Amendments.” Compl. ¶ 1. Defendants argue that “[a]lthough

Plaintiff repeatedly mentions numerous Constitutional Amendments

and protections generally, he does not do so with the requisite

specificity.” Defs.’ Mem. at 15-16 (internal citations and

quotation marks omitted). Having closely reviewed plaintiff’s

complaint, the Court finds only vague assertions of purported

constitutional violations. See, e.g., Compl. ¶ 12 (alleging that

federal and state agents “entered the Plaintiff’s home and

17
released a poisen [sic] substance in violation of the 4th, 5th,

8th and other amendments”); Compl. ¶ 23 (alleging federal or

state agents “listen[ed] in on phone conversations” in “violation

of the due process, searches and seizures, cruel and unusual,

equal protection, [and] other amendments”); Compl. ¶ 25 (“The

Plaintiff has evidence of a 25 year conspiracy by the FBI and a

number of Louisiana politicians to wiretap his phone and house,

and the use of electronic tracking devices on his vehicle and the

release of a toxic substance in his home [sic] or the FBI and

Bush administration or [sic] knows who is doing this, in

violation of the Constitution . . .”). These convoluted

statements fail to provide the “requisite specificity” needed to

survive a motion to dismiss. See Jarrell v. Tisch, 656 F. Supp.

237, 239 (D.D.C. 1987) (“[I]f plaintiff is asserting a claim for

constitutional violations he should do so with the requisite

specificity, so as to give defendants notice, plead the

involvement of each defendant and clarify what constitutional

right has been violated.”). Accordingly, plaintiff’s

constitutional claims are hereby DISMISSED.

6. Section 1983 Claim

The Court also GRANTS defendants’ motion to dismiss

plaintiff’s claim under 42 U.S.C. § 1983. Defendants correctly

recognize that § 1983 applies only to individuals acting under

color of state law. See Defs.’ Mem. at 5 (“Plaintiff’s claims

under § 1983 must be dismissed because that statute’s provisions

18
implicate actions under state law and do not apply to federal

officials acting under the color of federal law.”); see generally

42 U.S.C. § 1983 (“Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured . . .” (emphasis added)).

Plaintiff responds by arguing that his § 1983 action is

cognizable against the “Unknown State Agents the Plaintiff listed

as Defendants in this case.” Pl.’s Opp’n Br. at 12. While this

may be true, the Court nevertheless finds that plaintiff’s

complaint fails to state a claim for municipal liability. First,

as noted above, plaintiff fails to state a predicate

constitutional violation with requisite specificity. See supra

Section III.B.5. Second, and equally fatal, plaintiff’s

complaint fails to allege a custom or policy of the municipality

that caused the purported constitutional violation. See Baker v.

District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (“In

considering whether a plaintiff has stated a claim for municipal

liability . . . the court must [first] determine whether the

complaint states a claim for a predicate constitutional

violation. . . . [and] if so, then . . . determine whether the

complaint states a claim that a custom or policy of the

19
municipality caused the violation.”). Accordingly, plaintiff’s

§ 1983 claim is hereby DISMISSED.

7. Bivens Claim

Defendants also argue that plaintiff has failed to plead an

action under Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics, 403 U.S. 388 (1971). Under Bivens, a plaintiff may

bring “an action against a federal officer seeking damages for

violations of the plaintiff’s constitutional rights.” Simpkins

v. District of Columbia Gov’t, 108 F.3d 366, 368 (D.C. Cir.

1997). A Bivens suit, however, “must be brought against federal

officers in their individual capacity and ‘[t]he complaint must

at least allege that the defendant federal official was

personally involved in the illegal conduct.’” Peavey v. Holder,

657 F. Supp. 2d 180, 192 (D.D.C. 2009) (quoting Simpkins, 108

F.3d at 369). Here, plaintiff has neither sued nor served the

named defendants in their individual capacities, nor alleged any

facts suggesting that the federal officials named in his

complaint – former President George W. Bush, President Barack

Obama or Attorney General Eric Holder – were personally involved

in the alleged conduct underlying plaintiff’s purported Bivens

claim. See Compl. ¶ 12 (explaining that his “Bivens style suit”

is based on a conspiracy among defendants who “entered the

Plaintiff’s home and released a poisen [sic] substance”). Nor

did plaintiff respond to defendants’ argument that, “to the

extent [plaintiff] is alleging a Bivens claim against any

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individually named Defendant in his individual capacity, these

Defendants, as federal government officials enjoy qualified

immunity from constitutional and statutory claims.” Defs.’ Reply

Br. at 6. Accordingly, the Court agrees with defendants that

“[p]laintiff’s Bivens claims against Defendants must be dismissed

because Plaintiff has failed to state a claim for any violation

of clearly established law, and Federal Defendants are shielded

from liability for civil damages.” Defs.’ Mem. at 20; see also

supra Section III.B.5 (finding that plaintiff failed to a plead a

constitutional violation with requisite specificity).

IV. CONCLUSION

For the reasons set forth above, the Court GRANTS

defendants’ motion to dismiss and for summary judgment. An

appropriate Order accompanies this Memorandum Opinion.

Signed: Emmet G. Sullivan
United States District Judge
September 29, 2010

Notice to:
Woody Voinche
1132 North Main Street
Marksville, LA 71351

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