Roum v. Fenty ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BUONY ROUM,
Plaintiff,
v.
Civil Action 09-00381 (HHK)
ADRIAN M. FENTY, Mayor of the
District of Columbia, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Buony Roum, proceeding pro se, brings this action against the Mayor of the
District of Columbia, Adrian Fenty, the District of Columbia Chief of Police, Cathy Lanier, and
the head of the District of Columbia’s city council, Vincent Gray (collectively “defendants”) in
their official capacities. Roum’s allegations center around several alleged conspiracies against
him by defendants and various government agencies. In his complaint, Roum alleges
miscellaneous violations of Foreign Intelligence Surveillance Act, FISA 50 U.S.C.
§§§§§§§§ 1801 et seq., 1802 et seq., 1804, 1805, 1811, 1824(e)(1)(A)(ii), 1829,
1844 of 1978 as amended July 10, 2008, and violation of his civil rights, privacy,
First, Second, Third, Fourth, Eight, Fourteen [section 1] Amendments to the
Constitution of the United States, [and] Article I section 9.
Compl. ¶ 1 (alterations in original).1 Roum also brings claims arising from an alleged failure to
comply with the requirements of the Freedom of Information Act (“FOIA”) as well as claims of
false arrest, false imprisonment, assault, and malicious prosecution. Before the Court are
defendants’ motion to dismiss Roum’s complaint [#12] and Roum’s motion for summary
1
All citations herein to Roum’s complaint refer to the Amended Complaint.
judgment [#14]. Upon consideration of the motions, the opposition thereto, and the record of
this case, the Court concludes that defendants’ motion to dismiss must be granted and Roum’s
motion for summary judgment must be denied as moot.
I. FACTUAL BACKGROUND
Roum filed this action on February 26, 2009. In his complaint, Roum alleges a vast and
intricate conspiracy involving numerous federal agencies and officials, the Metropolitan Police
Department (“Police Department”), and ordinary citizens, to surveil, experiment upon, kidnap,
and poison Roum. According to the complaint, the various participants in the conspiracy have:
illegally tapped his phones; conducted daily physical searches of his residence and property;
falsely labeled him a terrorist; contaminated his bed and clothing with radioactive chemicals,
poisoned his food and toothpaste, planted radioactive nano-technology in his home, “illegally
planted microelectrodes” in his brain; inserted a “roving wiretap” in his chest; used an “Active
Denial System” to map his brain and alter his dreams; injected H5N1 viral fluid into his lungs in
an attempt to create a global pandemic; exposed him to immunosuppressive radioactive elements
to create HIV/AIDS symptoms; disseminated his private information to police departments and
foreign intelligence agencies; kidnapped him and placed him in a mental hospital where he was
exposed to psychiatric drugs similar to LSD; and denied his FOIA request for access to any files
that the Federal Bureau of Investigation (“FBI”), the Central Intelligence Agency (“CIA”), or the
Department of Justice may have about him.
Roum also asserts that he has been falsely arrested and charged with various crimes on
June 25, 2006, October 13, 2006, July 11, 2007, and December 9, 2007. All, or at least most, of
2
the resulting cases against Roum have been dismissed.2 Finally, Roum alleges that he was falsely
arrested on April 24, 2008, an arrest that Roum asserts led to his wrongful conviction on October
23, 2009.
Defendants now move to dismiss Roum’s complaint pursuant to Federal Rule of Civil
Procedure 12(b)(1) and Roum moves for summary judgment.3
II. LEGAL STANDARD
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure “tests
whether the court has subject matter jurisdiction over the action.” Bernard v. U.S. Dep’t of Def.,
362 F. Supp. 2d 272, 277 (D.D.C. 2005). Under Rule 12(b)(1), “the plaintiff bears the burden of
establishing the factual predicates of jurisdiction by a preponderance of the evidence.” Erby v.
United States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006) (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992)). “The court, in turn, has an ‘affirmative obligation to ensure that it is
acting within the scope of its jurisdictional authority.’” Abu Ali v. Gonzales, 387 F. Supp. 2d 16,
17 (D.D.C. 2005) (quoting Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp.
2d 9, 13 (D.D.C. 2001)). The court must accept all the complaint’s well-pled factual allegations
as true and draw all reasonable inferences in the plaintiff’s favor. Thompson v. Capitol Police
Bd., 120 F. Supp. 2d. 78, 81 (D.D.C. 2000). “The court is not required, however, to accept
inferences unsupported by the facts alleged, or legal conclusions that are cast as factual
allegations.” Smith v. Koplan, 362 F. Supp. 2d 266, 268 (D.D.C. 2005) (citing Scott v. England,
2
It is unclear from Roum’s complaint whether the disorderly conduct charge
resulting from his June 25, 2006 arrest was dismissed.
3
Because the Court finds that Roum’s complaint should be dismissed, Roum’s
motion for summary judgment is denied as moot.
3
264 F. Supp. 2d 5, 7 (D.D.C. 2002)). Although pleadings filed by pro se litigants are to be
liberally construed, see Haines v. Kerner, 404 U.S. 519, 520 (1972), a pro se litigant may not
ignore the Federal Rules of Civil Procedure. Jarrell v. Tisch, 656 F. Supp. 237, 239 (D.D.C.
1987).
III. ANALYSIS
A. Roum’s First, Second, Third, Fourth, and Eighth Amendment; Article 1, § 9; FISA;
USA PATRIOT Act; and Title VII Claims Must Be Dismissed Pursuant to Rule
12(b)(1) Because They Are Frivolous.
It is well settled in this Circuit 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.’” Lewis v. Bayh, 577 F. Supp. 2d 47, 54 (D.D.C. 2008) (quoting
Hagans v. Lavine, 415 U.S. 528, 536-37 (1974)). Dismissal is appropriate under Rule 12(b)(1)
when a complaint is so “patently unsubstantial” that it presents no question suitable for decision.
Id. (quoting Best v. Kelly, 39 F.3d 328, 330 (D.C. Cir. 1994). A complaint that is “patently
unsubstantial” is not merely doubtful or questionable, but is “essentially fictitious.” Best, 39 F.
3d at 330. Such claims include those that “advance bizarre conspiracy theories” or “fantastic
government manipulations of [one’s] will or mind.” Id.; see also Roum v. Bush, 461 F. Supp. 2d
40, 46 (D.D.C. 2006) (“Complaints that are comprised of ‘fanciful claims’ and ‘bizarre
conspiracy theories’ are generally subject to dismissal on that basis.”).
Here, the gravamen of Roum’s claims is that defendants have participated in a vast and
ongoing conspiracy against him involving numerous federal and local agencies and officers. He
alleges that these agencies have employed the use of various chemicals and technologies to
regularly conduct experiments and surveillance on him over a period spanning more than ten
4
years. See Compl. ¶¶ 31-52.4 These allegations are precisely the type of unrealistic assertions
that this Court must dismiss for lack of jurisdiction. See Roum, 461 F. Supp. 2d at 46 (citing
Bestor v. Lieberman, 2005 WL 681460, at *1 (D.D.C. Mar. 11, 2005)). Accordingly, any claims
related to Roum’s conspiracy allegations must be dismissed under Rule 12(b)(1).
Roum’s First, Second, Third, Fourth, and Eighth Amendment claims all arise from, and
are entwined with, his conspiracy allegations. In asserting his First Amendment claim, Roum
alleges that his phones have been tapped and his conversations monitored. Compl. ¶ 7.5 His
Second Amendment claim arises from allegations that his October 23, 2009 conviction was the
result of an ongoing Bush Administration conspiracy to prevent him from buying a handgun Id.
¶ 66. Roum’s Third Amendment claim arises from an alleged quartering of a National Security
Agency operative in his house. Id. ¶ 30. His Fourth Amendment claim arises from allegations of
various and repeated clandestine, physical searches of his home over a ten year period. Id. ¶ 10.
His Eighth Amendment claim asserts cruel and unusual punishment arising from the various
experiments and poisonings allegedly inflicted upon him. Id. ¶ 56.6
4
Roum does not clearly articulate a motive for this conduct by the agencies, but
suggests they are motivated by either a mistaken belief that he is a terrorist, or by a deliberate
effort to label him a terrorist in order to conduct experiments on him. Id. ¶ 31.
5
The First Amendment provides that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and to petition the
government for a redress of grievances.” U.S. Const. amend. I. Roum does not clearly articulate
how the alleged tapping of his phones violated his First Amendment right.
6
Roum also asserts an Article I, section 9 violation, but never states what that claim
is, and nowhere in the complaint does he allege any facts remotely cognizable under that
provision of the Constitution.
5
Roum’s allegations regarding Foreign Intelligence Surveillance Act (“FISA”) and USA
PATRIOT Act violations similarly arise out of his incredible conspiracy allegations. Roum
asserts that various federal agencies have tracked him “through his cell phones, computer radio
frequency bar codes via . . . G[PS] war satellites and CIA satellites,” and otherwise surveilled and
spied on him and tapped his phones for more than ten years, in violation of various FISA
provisions.7 See id. ¶¶ 8-30, 53-54. He also asserts that his private information was obtained and
disseminated to various police and foreign intelligence agencies in violation of FISA or the USA
PATRIOT Act. Id. ¶ 54.
Finally, Roum alleges that he has been discriminated against by the Police Department in
violation of Title VII of the Civil Rights Act of 1964. See Compl. ¶¶ 31, 70. As an initial
matter, Title VII is inapplicable to Roum’s claims because it addresses only employment-related
discrimination, see 42 U.S.C. § 2000e et seq., and Roum does not allege that any of the named
defendants was ever his employer. Additionally, to the extent Roum’s complaint can be
construed as alleging a cognizable civil rights violation because of his “national origin, skin
color, [or] religion,” see Compl. ¶ 70, the Court determines that those allegations are also
entwined within Roum’s broader conspiracy claims to label him a terrorist. The claim is just one
more item on the “laundry list of wrongful acts and conclusory allegations” that comprise
Roum’s complaint. See Richards v. Duke University, 480 F. Supp. 2d 222, 233 (D.D.C. 2007)
(stating that plaintiff’s offering of “a laundry list of wrongful acts and conclusory allegations to
7
Roum’s claims include violations of 50 U.S.C. §§ 1801, 1802, 1804, 1805, 1811,
1822, 1824, 1829, 1842, 1843, 1844.
6
support her theory of a conspiracy” was insufficient to allow the case to proceed) (internal
quotation marks omitted).
The extent and sophistication of the alleged government conspiracy strains credulity, to
say the least. As this Court has instructed Roum before, “[t]hese are precisely the type of
inherently unrealistic allegations that must be dismissed for lack of jurisdiction.” Roum, 461 F.
Supp. 2d at 47. Therefore, the Court concludes that Roum’s constitutional, FISA, USA
PATRIOT Act, and Title VII claims must be dismissed.
B. Roum’s FOIA Claims Must Be Dismissed Because He Has Not Alleged Claims
Against the Named Defendants.
Under FOIA, an individual who has submitted a proper request for records but has been
denied may file suit in district court. See 5 U.S.C. § 552(a)(4)(B); Zivotofsky rel. Ari Z. v. Sec’y
of State, 444 F.3d 614, 617 (D.C. Cir. 2006) (“Anyone whose request for specific information
[under FOIA] has been denied has standing to bring an action.”). Roum alleges that he submitted
requests for records under FOIA to the CIA, FBI, and the Department of Justice, but “[t]he CIA
and FBI failed to furnish plaintiff’s responsive records,” as did the Department of Justice.
Compl. ¶ 57. Nowhere in Roum’s complaint, however, does he allege that he requested records
from the named defendants of this action—Fenty, Gray, and Lanier—or their respective agencies,
or that the defendants denied such a request. Accordingly, to the extent that Roum’s complaint
alleges FOIA claims against defendants, those claims must be dismissed.
7
C. Roum’s Claims of False Arrests, Assault, False Imprisonment, and Malicious
Prosecution Must Be Dismissed Because They Are Time-Barred or Not Yet Ripe for
Consideration.
Roum also alleges claims of false arrest spanning a time period from June 25, 2006 to
April 24, 2008. See Compl. ¶¶ 59-66. Roum characterizes some of his claims as arising from
“false arrests,” id. ¶¶ 59-66, however, liberally construing his complaint, it appears that Roum
also attempts to assert claims of assault, false imprisonment, and wrongful conviction.
First, defendants argue that Roum’s false arrest and assorted tortious claims that occurred
between February 3, 2005 and July 11, 2007 are barred by a one-year statute of limitations. Mot.
to Dismiss at 9. Citing D.C. Code §12-301(2)-(4), Roum seems to argue that he has three years
to file his suit because his personal property was “damaged and lost” when he was arrested. Pl.’s
Mem. of P. & A. in Opp’n to Defs.’ Mot. to Dismiss at 13.
While Roum may have three years to file suit for the recovery of his personal property or
the recovery of damages for an injury to his personal property under D.C. Code §12-301(2)-(3),
Roum’s false arrest, assault, and false imprisonment claims are governed by D.C. Code § 12-
301(4), which provides a one year statute of limitations for “assault, battery, mayhem, wounding,
malicious prosecution, false arrest or false imprisonment.” D.C. Code § 12-301(4). The District
of Columbia Code provides that the statutory period begins to run “from the time the right to
maintain the action accrues.” Id. § 12-301. Roum filed suit in this Court on February 26, 2009.
Accordingly, all of Roum’s claims pertaining to false arrests, assault, or false imprisonment that
occurred prior to February 26, 2008 are time barred and must be dismissed.8
8
Additionally, to the extent Roum attempts to allege assault, battery, wounding,
false arrest and/or false imprisonment arising from his being taken to St. Elizabeth Mental
Hospital in February 2005, that claim is also time-barred pursuant to D.C. Code § 12-301(4).
8
Next, defendants argue that Roum’s remaining claims for false arrest and wrongful
conviction, which relate to his April 24, 2008 arrest and October 23, 2009 conviction, should be
dismissed because Roum fails to state a claim upon which relief can be granted. The Court
agrees. First, “[a] common-law false arrest claim is defeated by a subsequent conviction on the
charges on which the claimant was arrested.” McClam v. Barry, 697 F.2d 366, 370 (D.C. Cir.
1983), rev’d on other grounds, 742 F.2d 1498, 1509 (D.C. Cir. 1984) (citing Menard v. Mitchell,
430 F.2d 486, 491 n.26 (D.C. Cir. 1970)). Accordingly, Roum’s April 24, 2008 false arrest claim
must be dismissed because Roum alleges that he was subsequently convicted on the charges for
which he was arrested. See Compl. ¶ 66.
Furthermore, Roum’s wrongful conviction claim must also be dismissed because he has
not made the required showing that his conviction has been invalidated. Roum can only be
awarded damages for his alleged wrongful conviction if he establishes that his conviction has
been invalidated by “revers[al] on direct appeal, expunge[ment] by executive order, declar[ation
of invalidity] by a state tribunal authorized to make such determination, or . . . a federal court’s
issuance of a writ of habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); see also
Harper v. U.S. Attorney’s Office, 1998 WL 796240, at *1 (D.C. Cir. Oct. 6, 1998) (“To the
extent appellant seeks damages for constitutional violations in connection with his alleged
wrongful conviction, he is not entitled to relief without showing that his conviction has been
invalidated in another proceeding.” (citing Heck v. Humphrey, 512 U.S. 477, 486-87 (1994))).
Because Roum has not made such a showing, his wrongful conviction claim must also be
dismissed.
9
D. Roum’s Fourteenth Amendment Claim Must Be Dismissed Because He Has Not
Alleged Sufficient Facts to Support His Claim.
Roum also asserts he was denied due process in violation of the Fourteenth Amendment.
It has long been held that the Fifth Amendment applies in the District of Columbia, and not the
Fourteenth, which applies only to the States. See Bolling v. Sharpe, 347 U.S 497, 499 (1954);
see also Butera v. District of Columbia, 235 F.3d 637, 645 n. 7 (D.C. Cir. 1987) (noting that
although due process violations by state officials are generally analyzed under the Fourteenth
Amendment, the District of Columbia is subject to the Due Process Clause of the Fifth
Amendment). Because Roum is a pro se plaintiff, the Court will read Roum’s complaint to
allege a claim under the Fifth, rather than Fourteenth, Amendment. The Fifth Amendment’s Due
Process Clause protects individuals from the deprivations of “life, liberty, or property, without
due process of law.” U.S. Const. amend. V. Roum seems to rely on the Amendment’s
protection from deprivation of property without due process to assert his property loss claim
arising from his October 13, 2006 arrest. Despite a very liberal construal of the complaint in
favor of Roum, the Court must reject his claim.
Roum asserts that he lost “his real personal properties cell phone, other electronic
devices, leather briefcase bag, lawsuit files . . . , a United States Code CD ROM, Calculus Text
Book” as a result of his October 2006 arrest. Compl. ¶ 60. He offers no other detail regarding
the loss of his property, but alleges “los[s] of his real personal properties” as one of the many
harms he has suffered. Id. ¶ 68. The guarantee of due process has historically been “applied to
deliberate decisions by government officials to deprive a person of life, liberty, or property.”
Daniels v. Williams, 474 U.S. 327, 331 (1986) (emphasis in original) (explaining Due Process in
10
the Fourteenth Amendment context). The purpose of the Due Process clause is “to secure the
individual from the arbitrary exercise of the powers of government.” Id. (quoting Hurtado v.
California, 110 U.S. 516, 527 (1884)). Mere negligence or lack of due care by a state official
does not constitute a deprivation of life, liberty, or property in violation of due process. Id. at
330-31; CHS Indus., LLC v. U.S. Customs & Border Prot., 653 F. Supp. 2d 50, 56 (D.D.C.
2009).
Although Roum has alleged a significant number of violations throughout his complaint,
this Court does not read anywhere in the complaint facts that could be construed to allege
deliberate action by the police to deprive Roum of his property. Roum makes no conversion
claim and fails to offer any evidence from which the Court could deduce an allegation of
deliberate deprivation of property. Therefore, the Court concludes that Roum’s Fifth
Amendment claim must be dismissed.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that Roum’s complaint shall be dismissed
in its entirety. An appropriate order accompanies this memorandum opinion.
Henry H. Kennedy, Jr.
United States District Judge
11