Assem Abulkhair v. FBI ( 2021 )

DLD-131 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 20-1695
___________
ASSEM A. ABULKHAIR,
Appellant
v.
THE FEDERAL BUREAU OF INVESTIGATION; ROBERT S. MUELLER, III, Former
Director, in His Official Capacity; JAMES B. COMEY, JR., Current Director, in His
Official Capacity; AARON T. FORD, Special Agent in Charge of the FBI’s Newark
Division, in His Official Capacity; ALL ASSISTANT AGENTS IN CHARGE, in Their
Official Capacities; ALL FBI SUPERVISORS, OFFICERS, EMPLOYEES, AGENTS,
in Their Official Capacities; ALL FBI INFORMERS AND INFORMANTS, in Their
Official Capacities; ALL FICTITIOUS PERSONS JOHN DOES ONE THROUGH
TWENTY, in Their Official Capacities as FBI Employees;
UNITED STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2:14-cv-05677)
District Judge: Honorable Esther Salas
____________________________________
Submitted on Appellees’ Motion for Summary Action
Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
March 25, 2021
Before: JORDAN, KRAUSE, and PHIPPS, Circuit Judges
(Opinion filed: April 23, 2021)
_________
OPINION*
_________
PER CURIAM
Appellant Assem Abulkhair, proceeding pro se and in forma pauperis, appeals
from the District Court’s denial of his post-judgment motion. The defendants have filed
a motion for summary affirmance. For the reasons discussed below, we grant the
defendants’ motion and will summarily affirm the District Court’s order. See 3d Cir.
L.A.R. 27.4; 3d. Cir. I.O.P. 10.6.
Abulkhair initiated this pro se civil rights action in 2014, and, in 2016, filed an
amended complaint in the District Court, raising 23 causes of action against the United
States of America, the Federal Bureau of Investigation (“FBI”), the former and current
directors of the FBI, the Special-Agent-in-Charge of the FBI’s Newark Field Office, and
“all” of the FBI’s “Assistant Agents In Charge,” “Supervisors,” “Officers,” “Employees,”
“Agents,” “Informers,” and “Informants.” The pleading revolved around Abulkhair’s
allegation that, since the terrorist attacks of September 11, 2001, the defendants have
conspired with one another to spy on him “day and night” because he is a Muslim and of
Middle Eastern descent.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
The District Court granted the defendants’ motion to dismiss, dismissing the
action on a number of grounds, including sovereign immunity, failure to exhaust
administrative remedies for claims under the Federal Tort Claims Act, defective service
of process, and failure to state a claim. The District Court granted Abulkhair leave to
amend, but instead he filed a notice of appeal and a motion to recuse, which was denied
in light of the pending appeal. We summarily affirmed both the order of dismissal and
the order denying the motion to recuse. See Abulkhair v. FBI, 739 F. App’x 82 (3d Cir.
2018) (per curiam).
Well over a year later, in March 2020, Abulkhair filed an “emergency application”
requesting that the defendants be compelled to cease and desist hostility towards him and
assassination attempts against him. He alleged that his home was being “electronically”
attacked in a way that affected his and his family’s “muscles, nerve symptom, immune
and breathing system”; that his neighbors, working in concert with the defendants, would
pass by his door and release an invisible chemical substance; that his family was followed
by 50,000 unmarked and undercover vehicles the moment they left their home; and that
every day more than 5,000 people attempted to harm his family in various ways,
including delaying their buses, releasing toxic fumes, and releasing waves of wifi from
cellphones to target them. He also requested appointed counsel. The District Court
denied the motion, noting that its order dismissing the complaint had already been
summarily affirmed; that much of the conduct Abulkhair described was not attributed to
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the named defendants; and that Abulkhair had failed to comply with the requirements of
any of the applicable Federal or Local rules governing emergency motions.
We have jurisdiction under 28 U.S.C. § 1291; see also Ohntrup v. Firearms Ctr.,
Inc., 802 F.2d 676, 678 (3d Cir. 1986) (per curiam). We review for abuse of discretion
the denial of requests for the appointment of counsel, post-judgment motions to amend a
complaint, and most other post-judgment motions. See Burtch v. Milberg Factors, Inc.,
662 F.3d 212, 220 (3d Cir. 2011); Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997);
see also Wiest v. Lynch, 710 F.3d 121, 128 (3d Cir. 2013); Ahmed v. Dragovich, 297
F.3d 201, 209 (3d Cir. 2002). We may summarily affirm if the appeal fails to present a
substantial question. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per
curiam); 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
To the extent that Abulkhair sought to amend his complaint, he was required to
move the District Court to reopen his case pursuant to Federal Rule of Civil Procedure
Rule 60(b).1 See Ahmed, 297 F.3d at 208-09. We liberally construe Abulkhair’s filing
as including motions to reopen and amend, consider them together, see id. at 209, and
conclude that the District Court did not abuse its discretion in denying relief. When the
proposed amended pleading fails to cure the defects that resulted in judgment being
1
To the extent that Abulkhair wishes to bring new claims against the named defendants
or other individuals, he should file a new action and, if he wishes to seek emergency
relief therein, he must comply with the applicable Federal and Local rules for requesting
such relief, as explained by the District Court.
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entered against the movant, the District Court does not abuse its discretion in denying
both requests. See id. Such is the case here, where, rather than addressing the flaws in
the underlying complaint, Abulkhair’s filing makes new allegations which are directed
against individuals in addition to the named defendants and would likely not survive
screening pursuant to 28 U.S.C. § 1915(e)(2)(B) or a motion to dismiss. See Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009).
Accordingly, we will summarily affirm the District Court’s judgment.
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