Little v. United States Dep't of Def.
| Decision Date | 02 May 2022 |
| Docket Number | 4:21-CV-1309-JAR |
| Parties | TONY R. LITTLE, Plaintiff, v. UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on the Defendants' Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim. (Doc. 11). Plaintiff responded on March 4, 2022 (Doc 14), and Defendants have replied. (Doc. 15). For the reasons discussed below, the motion will be granted.
On November 11, 2021, Plaintiff Tony R. Little filed a complaint in this Court raising claims arising under Title VII, 42 U.S.C. §§ 1983, 1985, and 1988, 28 U.S.C §§ 1343 and 1361, the First, Fourth, Sixth, and Fourteenth Amendments to the United States Constitution (Counts I - IV), and Missouri tort law (Count V). (Doc. 1).[1] Plaintiff brings the current action against the Department of Defense (“DOD”), Diplomatic Security Service (“DSS”), Department of Homeland Security (“DHS”), [2] Federal Bureau of Investigation (“FBI”), and Central Intelligence Agency (“CIA”).
Plaintiff claims that around 1970 be began “living a double life” after the DOD changed his identity to that of “Tony R. Whittaker.” (Id. at ¶¶ 14-20). Plaintiff alleges a decades-long conspiracy by the United States government - primarily the DOD - to operate a “Program” which continuously tracked Plaintiff's whereabouts, disrupted his life, interfered with his employment, and raised false criminal charges against him. (Id.). Plaintiff insists, for example, that in 1998 Defendants set him up as the “Decoy Fall Guy” during an elaborate operation involving the royal family of Saudi Arabia, family members of a “famous Hollywood actor celebrity, ” and the theft of “very expens[ive] jewels.” (Id. at ¶¶ 48-62).
Plaintiff, then proceeding as Tony Whittaker, filed a federal case in the Central District of California over 20 years ago making similar allegations. (Doc. 11-4). The Ninth Circuit Court of Appeals affirmed both the dismissal of Plaintiff's action as frivolous and the designation of Plaintiff as a vexatious litigant. Whittaker v. Brooks Protective Servs., Inc., 168 Fed.Appx. 201 (9th Cir. 2006). The Ninth Circuit noted that Plaintiff had a “history of frivolous and burdensome filings.” Id. Plaintiff's response to Defendants' motion to dismiss attempts to rehash the history of that case. (Doc. 14 at 1-2). Defendants now move to dismiss Plaintiff's complaint for lack of jurisdiction and failure to state a claim under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Plaintiff has responded (Doc. 14), and the Court construes Plaintiff's pro se filings liberally. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
When a party challenges this Court's subject matter jurisdiction, at issue is this Court's “very power to hear the case.” Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990) (citation omitted). Dismissal under Rule 12(b)(1) is appropriate when a party successfully challenges subject matter jurisdiction on the face of the complaint or on the facts. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). In assessing its own jurisdiction, this Court has substantial authority and is “free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Little Otters of Love, LLC v. Rosenberg, 724 Fed.Appx. 498, 501 (8th Cir. 2018) (per curiam) (citation omitted).
In deciding a motion under Rule 12(b)(1), this Court “must distinguish between a facial attack - where it looks only to the face of the pleadings - and a factual attack - where it may consider matters outside the pleadings.” Croyle by and through Croyle v. United States, 908 F.3d 377, 380 (8th Cir. 2018). In either case, Plaintiff bears the burden of proving the existence of subject matter jurisdiction. Buckler v. United States, 919 F.3d 1038, 1044 (8th Cir. 2019). It appears that Defendants present a facial attack on jurisdiction considering their arguments concern purely legal issues and do not require this Court to make any factual determinations. Accordingly, the Court applies the Rule 12(b)(6) standard and accepts all allegations in the complaint as true for the purposes of assessing jurisdiction. Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 2016).[3] Fed. R. Civ. P. 12(b)(6)
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in original) (citations omitted). When ruling on a motion to dismiss under Rule 12(b)(6), the district court must “accept the allegations contained in the complaint as true and all reasonable inferences from the complaint must be drawn in favor of the nonmoving party.” Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001).
At the outset, the Court finds that Plaintiff has abandoned every claim raised in his Complaint. Courts in the Eighth Circuit have consistently acknowledged that failure to respond to arguments raised in a motion to dismiss constitutes an abandonment of that claim or concession to the opposing arguments. See Ursery v. Fed. Drug Enf't Admin., No. 4:12-CV-1911 HEA, 2014 WL 117627, at *2 (E.D. Mo. Jan. 13, 2014) (collecting cases); see also Siepel v. Bank of America, N.A., 239 F.R.D. 558, 566 (E.D. Mo. 2006) ().
Defendants' Motion to Dismiss raises substantive legal issues regarding whether this Court has jurisdiction to hear the case and Plaintiff's ability to state a plausible claim for relief. Plaintiff's response merely offers mostly irrelevant facts relating to his previous case in the Central District of California, restates allegations regarding “Dark Operations” by Defendants, and asserts minor factual errors in Defendants' motion. (Doc. 14). Because Plaintiff has offered no substantive response to the merits of Defendants' arguments, the Court finds Plaintiff has abandoned his claims in this case. See Huskey v. Colgate-Palmolive Co., 486 F.Supp.3d 1339, 1349-50 (E.D. Mo. 2020) (). The Court will proceed in the alternative, however, and evaluate the merits of Defendants' arguments.
The doctrine of sovereign immunity, which provides that courts may not entertain suits against the United States absent express consent to be sued, bars many of Plaintiff's claims. See Lane v. Pena, 518 U.S. 187, 192 (1996). Federal courts “generally lack jurisdiction to hear claims against the United States because of sovereign immunity, ” Barnes v. United States, 448 F.3d 1065, 1066 (8th Cir. 2006), and the “existence of consent [to be sued] is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). Sovereign immunity extends to federal agencies and officials when sued in their official capacities. See Hagemeier v. Block, 806 F.2d 197 202-03 (8th Cir. 1986). A waiver of sovereign immunity is strictly and narrowly construed in favor of the United States, and Plaintiff bears the burden of demonstrating the waiver. See Snider v. United States, 468 F.3d 500, 509 (8th Cir. 2006) (citations omitted).
Defendants contend that numerous claims raised by Plaintiff, including the constitutional torts, defamation under Missouri law, and 28 U.S.C. § 1343 claims, are barred by sovereign immunity. (Doc. 13 at 8-12). Plaintiff has filed suit against various federal agencies and has not named any individual defendants in their personal capacities. See Baker v. Chisom, 501 F.3d 920, 923-25 (8th Cir. 2007) (); Hagemeier, 806 F.2d at 202 (). The Court also notes that Plaintiff does not seek any injunctive relief on these claims. (Doc. 1 at 33). Compare Ex parte Young, 209 U.S. 123 (1908); Armstrong v. Child Ctr., Inc., 575 U.S. 320, 327 (2015) (). Plaintiff's response, even construed liberally, does not substantively address the issue of sovereign immunity.
Plaintiff raises claims under the First, Fourth, Sixth, and Fourteenth Amendments. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court recognized a cause of action against federal officials acting in their personal capacity for violations of constitutionally protected rights. But Bivens only applies to claims against federal agents, not agencies, and Plaintiff does not bring any claims against individuals. F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994) (). As indicated above, moreover, Plaintiff has not sued any federal official in their individual...
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