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.
7
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).
8
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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