Weir v. Fed. Bureau of Investigation

PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE

Colville Judge

REPORT AND RECOMMENDATION

PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE

I. Recommendation

It is respectfully recommended that the Federal Defendants' Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 57) be granted.

II. Report

Plaintiff Nicholas Weir brings this civil rights action against the United States and various federal agencies pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80 (FTCA). He also asserts claims against a number of other defendants under the federal and state constitutions and Pennsylvania law.

Pending before the Court for resolution is a motion to dismiss filed on behalf of the United States, the Federal Bureau of Investigation (FBI), the Central Intelligence Agency (CIA), the Department of Defense (DOD), the Office of Government Ethics (OGE) and the Food and Drug Administration (FDA) (the “Federal Defendants”).

A. Procedural History

Plaintiff commenced this action on March 14, 2023 and filed an Amended Complaint the next day (ECF No. 4). The 80-page Amended Complaint includes 34 counts against 13 named defendants as well as a number of John and Jane Does. In addition to tort claims under the FTCA, his federal claims are raised under 42 U.S.C. §§ 1983, 1985(3), 1985(2), 1986 and allege violations of his rights under the First, Fourth, Seventh, Thirteenth and Fourteenth Amendments.

Subsequently, Plaintiff moved for and was granted leave to substitute William Abt for “John A. Doe,” Cheryl Abt for “Jane C. Doe” and Anisa Islamova, R.N. for “Jane A. Doe RN.”

Plaintiff's claims are divided into various groups: Counts I through VII allege medical malpractice claims against Allegheny Health Network (AHN), Dr. Camilo Caceres, Jessica Meenihan, PA, Sherry Sagath, PA, Anisa Islamova, R.N. and a nurse identified as “Jane B. Doe.” Counts VIII through X and XIII through XX allege constitutional claims (also citing provisions of the Pennsylvania constitution). Count XXI alleges a claim under the FTCA. Counts XI through XII and XXII through XXX allege state law tort claims and Count XXXI asserts a claim of stalking. Finally, Counts XXXII through XXXIV raises issues regarding the constitutionality of several federal statutes. In Plaintiff's “List of Causes of Action in This Case” (ECF No. 4 at 46-49), many of the claims are asserted against “Defendants” without distinguishing between them.

In the body of the Amended Complaint, several of the claims (Counts XII-XIV, XXIV, XXVIII and XXXI-XXXIV) appear to be asserted against “Pitt.” The University of Pittsburgh was a defendant in a prior lawsuit commenced by Plaintiff in this district, Civ. A. No. 2:21-cv-1206, but is not named as a defendant in this case.

On June 30, 2023, a motion to dismiss was filed on behalf of the Federal Defendants (ECF No. 57). The motion has been fully briefed (ECF Nos. 58, 85).

Separately, Defendants AHN and Meenihan have filed a motion to dismiss (ECF No. 37), which was later joined in by Defendants Islamova and William and Cheryl Abt. Plaintiff's 60-page response addresses both motions.

B. Relevant Factual Allegations

With respect to the Federal Defendants, Plaintiff alleges that they tried to “coerce [him] into join[ing] the military by sabotaging [his] career, professional network, jobs, social networks, marriage, relationship with spouse's family, and relationship with some of his family[,] as well as attacking [him] in both private and public spaces.” (ECF No. 4 ¶ 1.) Plaintiff declares that in furtherance of a conspiracy, “government agents” poisoned him, sending him to the ER where he received more poisoning of “unknown chemicals and biological agents” that defendants have refused to identify. (Id. ¶ 6.) Plaintiff alleges that a cocktail drink he ordered at a comedy club was poisoned by the Federal Defendants. He further alleges that, when he went to the hospital, he was injected with a “bio-weapon” in his IV. (Id. ¶¶ 7, 29.)

Plaintiff also claims that the Federal Defendants: airdropped a “RIP sign” on his driveway (Id. ¶¶ 28-29); sabotaged his vehicle's performance for ten years, including at a Pepboys store and by means of a “parasitic device” controlled remotely (Id. ¶¶ 38-45); took up residence in a house in which Plaintiff was renting a room and poisoned his food (Id. ¶ 47); interfered in unidentified contractual relationships with third parties (Id. ¶ 48); and made repeated attempts to murder him by trying to hit his car, poisoning his food and funneling toxic odorless gas into his home, which forced him to move six times. (Id. ¶¶ 49-65.) Further, Plaintiff alleges, government agencies have stalked him continuously since 2013, which includes tracking his food selections so that they can be poisoned when purchased again.

According to Plaintiff, the government has systematically sabotaged all aspect of his life over the last ten years. (Id. ¶ 46.) He claims to have been subjected to “aggressive harassments, coercive and harmful actions by governmental agents including the FBI and U.S. Armed Forces to serve in U.S. military” and that these agents have engaged in conspiracies that have resulted in harm to Plaintiff. (Id. ¶ 46.) Plaintiff claims that these conspiracies against him are so widespread that he has at least four (4) other similar lawsuits pending in Federal Court. (Id. ¶ 2.)

As will be discussed herein, other lawsuits that have been brought by Plaintiff have strikingly similar allegations in many respects. Moreover, the Court takes judicial notice that many of these lawsuits have been dismissed.

C. Standards of Review

Under Rule 12(b)(1), a court may dismiss an action for lack of subject matter jurisdiction where the allegations are, inter alia, “wholly insubstantial.” Hagans v. Lavine, 415 U.S. 528, 536-37 (1974). The doctrine of substantiality is discussed in further detail below. Moreover: “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).

Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). “This requires a plaintiff to plead “sufficient factual matter to show that the claim is facially plausible,” thus enabling “the court to draw the reasonable inference that the defendant is liable for misconduct alleged.” Id. (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)). While the complaint “does not need detailed factual allegations ... a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

As noted by the Court of Appeals for the Third Circuit in Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011), a 12(b)(6) inquiry includes identifying the elements of a claim, disregarding any allegations that are no more than conclusions and then reviewing the well-pleaded allegations of the complaint to evaluate whether the elements of the claim are sufficiently alleged.

D. Lack of Subject Matter Jurisdiction

1. Substantiality Doctrine

The Federal Defendants argue that the Court lacks subject matter jurisdiction over Plaintiff's claims pursuant to the substantiality doctrine. The Supreme Court “has repeatedly held that the federal courts are without power to entertain claims otherwise within their jurisdiction if they are ‘so attenuated and unsubstantial as to be absolutely devoid of merit'; ‘wholly insubstantial'; ‘obviously frivolous'; ‘plainly unsubstantial'; or ‘no longer open to discussion.'” Hagans v. Lavine, 415 U.S. 528, 536-37 (1974) (citations omitted). See also Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296, 307-08 (1989) (noting that a federal statute “authorizes courts to dismiss a ‘frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision.”)

In affirming the dismissal of claims brought against the FBI and DOD by a pro se litigant who alleged, among other things, that as a four-year-old, he was the victim of a government-run genetic experiment which caused his body to combine with “reptile DNA,” the Third Circuit noted that:

A federal court may sua sponte dismiss a complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) when the allegations within the complaint “are so attenuated and unsubstantial as to be absolutely devoid of merit, ... wholly insubstantial, ... obviously frivolous, .. plainly unsubstantial, . or no longer open to discussion.” Hagans v. Lavine, 415 U.S. 528, 536-37 (1974) (internal citations and quotation marks omitted). There is no question that [plaintiff's] claims meet this standard, as they rely on fantastic scenarios lacking any arguable factual basis.

DeGrazia v. F.B.I., 316 Fed.Appx. 172, 172 (3d Cir. 2009). See also Stratton v. Mecklenburg Cnty. Dep't of Soc. Servs., 521 Fed.Appx. 278, 289 (4th Cir. 2013) (dismissing claims that state courts terminated the plaintiffs' parental rights via a “centuries-old international child trafficking enterprise” as insubstantial); Best v. Kelly, 39 F.3d 328, 330 (D.C. Cir. 1994) (allegations that would be subject to the substantiality doctrine include “bizarre conspiracy theories, any fantastic government manipulations of their will or mind, any sort of supernatural intervention.”); VanLoan v. Nation of Islam, 2021 WL 3630481, at*2 (E.D. Pa. Aug. 16, 2021) (allegation that for seven years, over fifty individuals had conspired to murder plaintiff for sending a text message with a racial slur is “wholly insubstantial and frivolous”), aff'd, 2022 WL 3043152 (3d Cir. Aug. 2, 2022), cert. denied, 143 S.Ct. 1749 (2023); Newby v. Obama, 681 F.Supp.2d 53, 56 (D.D.C. 2010) (dismissing as insubstantial allegations of government surveillance and harassment); O'Brien v. U.S. Dep't of Just., 927 F.Supp. 382, 384-85 (D. Ariz. 1995), aff'd mem., 76 F.3d 387 (9th Cir. 1996) (dismissing as insubstantial allegations that among other things, various government officials and other parties installed electronic and “hi-tech satellite” equipment on the plaintiff's residential telephone lines in order to “abuse, punish, persecute, victimize, orchestrate and conduct criminal, sadistic oral, lascivious, lewd attacks and rape assaults against [her].”).

Pro se complaints must be liberally construed, Higgs v. Atty. Gen, of the U.S., 655 F.3d 333, 339 (3d Cir. 2011), here, however, regardless of the sincerity with which Plaintiff holds his beliefs, his claims against the United States and its agencies are wholly fanciful, implausible and bizarre. He alleges that various government agencies poisoned him and government agents bored holes into his house and pumped in toxic odorless poisonous gas, sabotaged his car, poisoned his food on multiple occasions and stalked and surveilled him; and that all of these actions were undertaken with the express purpose of trying to coerce him to join the military. Even if liberally construed, these allegations are “wholly insubstantial” and so devoid of merit that they cannot confer subject matter jurisdiction and are subject to dismissal under the substantiality doctrine.

Courts also often dismiss frivolous complaints because they contravene the basic requirement of Rule 8 that a claim must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). See, e.g., Stephanatos v. Cohen, 236 Fed.Appx. 785, 787 (3d Cir. 2007) (150-page amended complaint was unwieldy and unintelligible). Plaintiff's 80 page Amended Complaint is not a short and plain statement of his 34 claims.

The Court also takes judicial notice of previous lawsuits filed by Plaintiff. In Weir v. United States of America, No. 17-CV-7430 (E.D.N.Y. Feb. 28, 2018), Plaintiff's claims of a broad conspiracy by “military personnel and other federal agents” to interfere with his life, which included poisoning his food, were dismissed as “wholly incredible” and frivolous. Similarly, in Weir v. New York Funded Agencies & its Agents, 2017 WL 8777381, at *2 (S.D.N.Y. Dec. 11, 2017), the District Court dismissed Plaintiff's claims that “rogue military personnel” and government officials poisoned his food and sprayed toxic gas in this room as “fantastic” and noted that these allegations “rise to the level of the irrational, and there is no legal theory on which he can rely.” See also Weir v. Federally Funded Agencies/Entities & Its Agents, 2018 WL 9815969, at *2 (E.D.N.Y. Sept. 21, 2018) (dismissing “fantastic” claims that the defendants, inter alia, poisoned the food in his room and refrigerator, sprayed an odorless gas into his car, purposefully hit his car while he was driving in order to stage a car accident, placed toxic substances on his food at a fast food restaurant and stalked him); Weir v. City of New York, 2023 WL 3001136, at *1 (2d Cir. Apr. 19, 2023) (“Because we agree with the district court that Weir's first amended complaint-which alleged that the City used unnamed government agents to, for example, compromise Weir's cell and internet service, funnel toxic gas into his room and car, poison his food after grocery shopping, and bribe his employer to fire him-was factually frivolous, dismissal was proper and we need not reach the other grounds for the district court's decision.”).

In the Amended Complaint, Plaintiff references some of his allegations in these actions but does not acknowledge that all of these cases have been dismissed as unsubstantial.

A common theme runs through these actions. The alleged facts and claims about the conduct of government agents and others outside of this jurisdiction are strikingly similar to those alleged to have occurred here. Simply put, Plaintiff appears to believe that multiple individuals associated with the government have, over a number of years, engaged in vast conspiracies to harm him. These allegations consistently have been found to be frivolous and incredible. They are equally so here. Plaintiff's claims against the Federal Defendants are irrational and rely on fantastic and unbelievable scenarios, and thus, are wholly unsubstantial and subject to dismissal. Therefore, all of this claims against the Federal Defendants should be dismissed.

E. The Claims Against the Federal Defendants are Otherwise Fatally Deficient

Even if Plaintiff's claims could possibly survive this analysis, the Federal Defendants are entitled to dismissal of all of the claims brought against them for a number of reasons.

1. Immunity

The United States and its agencies are immune from suit with respect to all of the claims asserted in the Amended Complaint against the Federal Defendants other than claims brought under the FTCA. See United States v. Bein, 214 F.3d 408, 412 (3d Cir. 2000) (citing United States v. Mitchell, 463 U.S. 206, 212 (1983)). Neither the Constitution nor 28 U.S.C. § 1331 contains such a waiver. See Clinton County Comm'rs v. U.S. E.P.A., 116 F.3d 1018, 1021 (3d Cir. 1997); Jaffee v. United States, 592 F.2d 712 (3d Cir. 1979). “Neither the United States nor its agencies have waived sovereign immunity for constitutional claims.” Mierzwa v. United States, 282 Fed.Appx. 973, 976-77 (3d Cir. 2008) (citing United States v. Testan, 424 U.S. 392, 400-02 (1976)). Further, there is no legal basis for Plaintiff to sue federal agencies under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), “which is concerned solely with deterring the unconstitutional acts of individual officers.” Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 71 (2001).

Thus, the Federal Defendants are immune from all of Plaintiff's claims other than the FTCA claims, which, as discussed below, also are subject to dismissal.

2. Failure to Exhaust FTCA Claims

The FTCA provides a limited waiver of the United States' sovereign immunity for certain state law tort claims. See 28 U.S.C. § 1346(b). The FTCA “allows plaintiffs to bring claims based on the action of Government employees when private persons engaging in analogous behavior would be liable under state law.” CNA v. United States, 535 F.3d 132, 138 (3d Cir. 2008).

However, the FTCA “precludes suit against the United States unless the claimant has first presented the claim to the relevant Federal agency and the claim has been finally denied.” Lightfoot v. United States, 564 F.3d 625, 626-27 (3d Cir. 2009). See also 28 U.S.C. § 2675(a); Accolla v. United States Gov't, 369 Fed.Appx. 408, 410 (3d Cir. 2010) (dismissing complaint as premature because it was filed prior to exhaustion being completed; subsequent completion of exhaustion does not cure the defect); Hoffenberg v. Provost, 154 Fed.Appx. 307, 310 (3d Cir. 2005) (date of the amended complaint could not serve as the date the federal suit was “instituted.”).

Plaintiff previously filed a motion (ECF No. 5) seeking to be excused from administratively exhausting his FTCA claim or a stay of his FTCA claim until he exhausts his administrative remedies. On September 1, 2023, a Report and Recommendation was issued (ECF No. 101), recommending that his motion be denied. As explained at length in this Report and Recommendation, a premature FTCA claim must be dismissed. Subsequent completion of the exhaustion requirement does not cure the defect.

Therefore, and in the alternative only if the entire Amended Complaint is not dismissed, Counts XI, XII and XXI through XXX should be dismissed for failure to exhaust administrative remedies.

In addition to Count XXI, which is identified as a FTCA claim, Plaintiff also asserts against the Federal Defendants what purport to be tort claims in Counts XI, XII and XXII through XXX. Presumably, all of these tort claims are being brought under the FTCA, and thus, are subject to the exhaustion requirement. While these claims are flawed in a number of other respects, it is unnecessary to analyze each of them in depth because Plaintiff failed to exhaust as required under the FTCA. It is also unclear if Plaintiff asserts that his stalking claim in Count XXXI is a tort claim, but regardless, it should be dismissed because under Pennsylvania law, there is no civil claim for stalking. See Sullivan v. Borough of Hellertown, 2003 WL 21664848, at *1 (E.D. Pa. June 25, 2003). See also Simpson v. City of Coatesville, 2015 WL 7251546, at *5 (E.D. Pa. Nov. 17, 2015) (Pennsylvania criminal law against stalking and harassment did not provide for a private right of action or give rise to civil liability).

3. Failure to State a Claim

Even if Plaintiff's Amended Complaint was not subject to dismissal in its entirety, the constitutional claims asserted against the Federal Defendants in Counts IX, X and XIII through XX fail to state a claim upon which relief may be granted.

The Amended Complaint asserts that many of Plaintiff's claims are brought under 42 U.S.C. § 1983, which applies when a person has acted “under color of state law.” But as the Federal Defendants assert, they cannot be sued under § 1983 because they act under federal law, not under color of state law. See Hindes v. F.D.I.C., 137 F.3d 148, 158 (3d Cir. 1998) (“federal agencies and officers are facially exempt from section 1983 liability inasmuch as in the normal course of events they act pursuant to federal law.”) See also Brown v. Philip Morris Inc., 250 F.3d 789, 800 (3d Cir. 2001). For the same reason, he cannot bring a conspiracy claim under § 1983. See Davis v. Samuels, 962 F.3d 105, 115 (3d Cir. 2020).

In fact, there are no state actors named in the Amended Complaint. The other named defendants are private actors and a hospital. While Plaintiff alleges that various individuals are state actors (ECF No. 85 ¶ 6), this is a wholly unsupported legal conclusion, not a factual allegation.

The exception to this general principle is explained in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the Supreme Court established a direct cause of action under the Fourth Amendment to the United States Constitution against federal agents who allegedly manacled the plaintiff and threatened his family while arresting him on narcotics charges. See Mack v. Yost, 968 F.3d 311, 314 (3d Cir. 2020). In Ziglar v. Abbasi, 582 U.S. 120, 135 (2017), however, the Supreme Court held that expansion of Bivens claims beyond the three specific contexts in which the Court had applied it is “disfavored.”

Plaintiff does not mention Bivens in the Amended Complaint. However, in his response to the motion to dismiss, he argues that he can present claims under Bivens. (ECF No. 85 ¶¶ 85, 14244.) He is mistaken.

These specific contexts were Bivens itself, a former congressional staffer's Fifth Amendment sex-discrimination claim, see Davis v. Passman, 442 U.S. 228 (1979), and a federal prisoner's inadequate-care claim under the Eighth Amendment, see Carlson v. Green, 446 U.S. 14 (1980).

Thus, Plaintiff cannot bring claims against the Federal Defendants under the First, Seventh, Thirteenth or Fourteenth Amendments because these are not recognized Bivens claims, see Egbert v. Boule, 142 S.Ct. 1793, 1807 (2022) (“we hold that there is no Bivens action for First Amendment retaliation”), and he alleges no claim under the Fifth Amendment. Moreover, by its own terms, the Fourteenth Amendment applies to actions taken by “the State,” not by the federal government. Nor is the Eighth Amendment relevant to this case, as it applies “only after the State has secured a formal adjudication of guilt.” City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 239 (1983). Plaintiff is not a convicted prisoner.

This leaves only Plaintiff's allegations under the Fourth Amendment, but the Supreme Court has expressly precluded expanding Bivens beyond the context in which it arose. See Egbert v. Boule, 142 S.Ct. 1793 (2022) (refusing to apply Bivens in the case of a United States Border Patrol agent who allegedly used excessive force against private individual). Simply put, Plaintiff cannot utilize Bivens to state constitutional claims against the Federal Defendants.

Plaintiff's Section 1985(2) claim (Count XIX) should be dismissed because this statute, that relates to conspiracies to obstruct justice or intimidating parties, witnesses or jurors, has no relevance to the facts of this case. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); Rudolph v. Clifton Heights Police Dep't, 2008 WL 2669290, at *9 (E.D. Pa. July 7, 2008).

A Section 1985(3) claim relates to conspiracies to deny individuals the equal protection of the laws. However, it requires sufficient facts from which the court could infer an agreement or understanding to violate a plaintiff's rights. See Sanchez v. Coleman, 2014 WL 7392400, at *10 (W.D. Pa. Dec. 11, 2014) (prisoner's allegations of a conspiracy to deny him medical treatment and subject him to an unsafe environment were insufficient). The Amended Complaint fails to plead any plausible facts that could support a conspiracy claim nor has Plaintiff sufficiently alleged that he has been denied equal protection. Therefore, Count XVIII should also be dismissed.

Finally, because Plaintiff fails to state a claim under § 1985, he necessarily cannot state a claim under § 1986. “Liability under 42 U.S.C. § 1986 is predicated on knowledge of a violation of 42 U.S.C. § 1985.” Mannery v. Miller, 2007 WL 1395358, at *7 (W.D. Pa. May 9, 2007). See also Rogin v. Bensalem Twp., 616 F.2d 680, 696 (3d Cir. 1980). Therefore, Count XX should also be dismissed.

Plaintiff provides no plausible factual basis for the largely incomprehensible claims against the United States, the FDA or the OGE that purport to relate to the Ethics in Government Act (Count XXXII), the Food, Drug and Cosmetic Act (Count XXXIII) or 28 U.S.C. § 1915(d) (Count XXXIV). Therefore, these claims should also be dismissed for failure to state a claim upon which relief could be granted.

F. Amendment Would be Futile

The Court of Appeals has held that “district courts must offer amendment-irrespective of whether it is requested-when dismissing a [pro se civil rights] case for failure to state a claim unless doing so would be inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). See also Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). Here, for the reasons stated herein, it would be futile to allow any further amendment because the Court lacks subject matter jurisdiction over Plaintiff's frivolous, incredible and unsubstantial claims.

III. Conclusion

For these reasons, it is recommended that the Federal Defendants' Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 57) be granted and all of Plaintiff's claims against them be dismissed with prejudice.

Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections by September 15, 2023. Any party opposing the objections shall file a response by September 29, 2023. Failure to file timely objections will waive the right of appeal.