Ye v. Mukasey ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
NING YE, )
)
Petitioner, )
)
v. ) Civil Action No. 09-103 (ESH)
)
ERIC H. HOLDER, JR., et al. )
)
)
Defendants. )
__________________________________________)
MEMORANDUM OPINION AND ORDER
Petitioner Ning Ye, an attorney proceeding pro se, has sued Attorney General Eric H.
Holder, Jr., U.S. Marshal Richard Laskowski, Courtroom Deputy Carol Votteler, several
unknown employees of this Court and the U.S. Department of Justice (“DOJ”) (“the federal
defendants”), and Maria Amato, general counsel for the District of Columbia Department of
Corrections (“DOC”), for various torts and violations of his civil rights pursuant to 42 U.S.C. §§
1981, 1982, 1983, 1985, and 1986; 18 U.S.C. §§ 241 and 242; and 28 U.S.C. § 1443. Plaintiff
subsequently moved for default judgment against the federal defendants. The federal defendants
have opposed that motion and have also moved to dismiss the case for insufficient service
pursuant to Federal Rule of Civil Procedure 12(b)(5). Defendant Amato has moved to dismiss
the claims against her pursuant to Rule 12(b)(6). For the reasons set forth below, plaintiff’s
motion for default will be denied and Amato’s motion will be granted in part. The federal
defendants’ motion will be granted in part but plaintiff will be given twenty (20) days to serve a
copy of the summons and complaint upon the U.S. Attorney for the District of Columbia in
1
accordance with Rule 4(i)(1)(A).
BACKGROUND
According to the complaint, plaintiff previously represented criminal defendant Zhenli
Ye Gon before Judge Emmet Sullivan in the case of United States v. Gon, No. 07-CR-181
(D.D.C.). (See Compl. at 2.) See also Minute Order, Gon, No. 07-CR-181 (D.D.C. May 7,
2008) (terminating plaintiff as Gon’s counsel). Ye Gon was confined as an inmate at the District
of Columbia Jail, run by the DOC, when plaintiff visited him there on February 18, 2008. (See
Compl. 2, 4-5.) At that time, officials found chocolate candy in Ye Gon’s possession after he
had met with plaintiff; DOC officials concluded that plaintiff had impermissibly given the candy
to Ye Gon. (Id. at 5.) The Court subsequently gave plaintiff a “stern warning” about the
incident during a February 27 status conference in the Gon case. (Id.)
During a March 18 status conference in Gon, the Court considered questions surrounding
the plaintiff’s compliance with the requirements for admission to practice before this Court. (See
Compl., Ex. 9 (1st Excerpt of Mar. 18, 2008 Hr’g Tr.).) The Court stated that plaintiff was not
allowed to participate in the case until he was able to clarify his bar membership status. (See id.)
The Court instructed plaintiff that he could “participate at counsel[’s] table,” but that he was not
to “stand up” or address the Court. (See Compl., Ex. 10 (2nd Excerpt of Mar. 18, 2008 Hr’g
Tr.).) Plaintiff alleges that during a break in the proceedings, after all defense counsel had left
the courtroom, defendant Votteler took something from plaintiff’s bag, which he suspects were
two computer data storage devices. (Compl. at 6-7.) After the status conference resumed,
plaintiff began to address the Court (id. at 8), leading the Court to admonish plaintiff several
times more that he was not to move (id.), that he must “be quiet,” and that he would be removed
2
from the courtroom “[t]he next time [he] stand[s] up . . . .” (Compl., Ex. 10.) Despite those
instructions, plaintiff proceeded to reach into his bag, at which point the Court instructed the
Marshals to escort the plaintiff out of the courtroom. (See Compl. at 8-9.) In the vestibule and
area outside the courtroom, one of the Marshals allegedly knocked off plaintiff’s eyeglasses, at
which point plaintiff moved to retrieve his glasses. (Id. at 9.) According to plaintiff, the
Marshals, including defendant Laskowski, then began to beat, kick, and choke plaintiff for “20 to
30 minutes” of “torture fueled by clueless hatred,” after which they handcuffed plaintiff and
restrained him in a cell for two hours. (Id. at 9-10 (emphasis in original).) Several months later,
on October 23, a grand jury returned an indictment that charged plaintiff with assaulting,
resisting, or impeding two U.S. Marshals in the performance of their official duties during the
March 18 altercation. See Indictment, United States v. Ye, No. 08-CR-324 (D.D.C. filed Oct. 23,
2008). That same day, the DOJ issued a press release announcing the indictment and its
allegations that plaintiff “inflicted bodily injury” on one of the Marshals and physically
contacted another during the course of the altercation. (See Compl., Ex. 20.)
Plaintiff filed this action on January 16, 2009. The complaint contains ten counts: (1)
assault and battery, (2) discrimination on the basis of race or national origin, (3) false arrest and
false imprisonment, (4) malicious prosecution, (5) intentional infliction of emotional distress, (6)
trespass to chattels and conversion, (7) defamation, (8) civil fraud, (9) civil conspiracy, and (10)
negligent supervision. (Compl. at 13-19.) Defendant Amato moved to dismiss the counts
against her on April 29. [Dkt. 3.] On May 27, the Court ordered plaintiff to file proof that he
had served the federal defendants. (See Order [Dkt. 6] at 1.) On June 2, plaintiff filed a personal
affidavit and affidavits by the process servers. [Dkt. 8-10.] On June 5, plaintiff moved for an
3
entry of default judgment against the federal defendants. [Dkt. 11.] On June 15, the federal
defendants opposed the motion for default judgment and moved to dismiss the counts against
them on the grounds of insufficient service. [Dkt. 17.]
ANALYSIS
I. STANDARD OF REVIEW
A. Motion to Dismiss for Insufficient Service of Process
“Before a federal court may exercise personal jurisdiction over a defendant, the
procedural requirement of service of summons must be satisfied.” Omni Capital Int’l, Ltd. v.
Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987). “If the plaintiff does not properly effect
service on a defendant, then the defendant may move to dismiss the complaint” pursuant to
Federal Rule of Civil Procedure 12(b)(5). Hilska v. Jones, 217 F.R.D. 16, 20 (D.D.C.2003).
Upon such a motion, “‘[t]he party on whose behalf service is made has the burden of establishing
its validity when challenged; to do so, he must demonstrate that the procedure employed
satisfied the requirements of the relevant portions of [Federal] Rule [of Civil Procedure] 4 and
any other applicable provision of law.” Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987)
(quoting C. Wright & A. Miller, Federal Practice and Procedure § 1083 at 334 (1969)); accord
Cruz-Packer v. Dist. of Columbia, 539 F. Supp. 2d 181, 186 (D.D.C. 2008). Although “[p]ro se
litigants are allowed more latitude than litigants represented by counsel to correct defects in
service of process and pleadings,” Moore v. Agency for Int’l Dev., 994 F.2d 874, 876 (D.C. Cir.
1993), “this consideration does not constitute a license for a plaintiff filing pro se to ignore the
Federal Rules of Civil Procedure,” Jarrell v. Tisch, 656 F. Supp. 237, 239 (D.D.C. 1987), nor is
it of much consolation to plaintiff, since he is a practicing attorney.
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B. Motion to Dismiss for Failure to State a Claim
“In determining whether a complaint fails to state a claim, [courts] may consider only the
facts alleged in the complaint, any documents either attached to or incorporated in the complaint
and matters of which [courts] may take judicial notice.” E.E.O.C. v. St. Francis Xavier
Parochial School, 117 F.3d 621, 624 (D.C. Cir. 1997). When ruling on a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6), courts may employ a “two-pronged
approach.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). Generally, “‘a judge must accept as
true all of the factual allegations contained in the complaint.’” Atherton v. Dist. of Columbia
Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (quoting Erickson v. Pardus, 551 U.S. 89,
94 (2007)) (edits omitted). However, courts “can choose to begin [considering a motion under
Rule 12(b)(6)] by identifying pleadings that, because they are no more than conclusions, are not
entitled to the assumption of truth. While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.” Iqbal, 129 S. Ct. at 1950. Courts
need not accept as true “‘naked assertion[s]’ devoid of ‘further factual enhancement,’” id. at
1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007)), or “legal conclusions
cast in the form of factual allegations.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276
(D.C. Cir. 1994). In other words, a pleading must offer more than “‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action’ . . . .” Iqbal, 129 S. Ct. at
1949 (quoting Twombly, 550 U.S. at 555).
Next, once it has been determined that “there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.” Iqbal, 129 S. Ct. at 1950. This means that
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a complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face. A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. The plausibility
standard is not akin to a “probability requirement,” but it asks for more than a
sheer possibility that a defendant has acted unlawfully. Where a complaint pleads
facts that are merely consistent with a defendant’s liability, it stops short of the
line between possibility and plausibility of entitlement to relief.
Iqbal, 129 S. Ct. at 1949 (internal quotation marks and citations omitted).
“A pro se complaint . . . ‘must be held to less stringent standards than formal pleadings
drafted by lawyers.’” Atherton, 567 F.3d at 681 (quoting Erickson, 551 U.S. at 94). “But even a
pro se complainant must plead ‘factual matter’ that permits the court to infer ‘more than the
mere possibility of misconduct.’” Id. at 681-82 (quoting Iqbal, 129 S. Ct. at 1950). Moreover,
as already noted, plaintiff is a practicing attorney so there is no reason to afford him the latitude
ordinarily accorded to the typical pro se plaintiff.
II. AMATO’S MOTION
A. Counts VII and IX
Only Counts VII and IX specifically name Amato, alleging defamation and civil
conspiracy, respectively.
1. Defamation
The complaint alleges that on or about February 18, 2008, Amato defamed plaintiff to
employees of this Court by spreading a “rumor in [the] form of gossip through unknown [e]x
[p]arte communication channels” that plaintiff was a “‘contraband smuggler’” and a “‘security
threat.’” (Compl. at 4-5.) However, plaintiff concedes that he has no basis for believing that
Amato published those words at that time. (See Compl. at 5 (“All defamatory noise devised by
[Amato] remains in uncoded, gossip form without a drop of ink available to the accused.”
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(emphasis added)).) The allegations are therefore “‘naked assertion[s]’ devoid of ‘further factual
enhancement’” and cannot be presumed true. Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550
U.S. at 557).
Plaintiff also offers vague allegations that “through [I]nternet correspondence” with a
“private party,” Amato “libelously tarnished” him as a “‘security threat[],’” a “‘contraband
smuggler,’” a “‘liar,’” and an “‘assailant attacking U.S. Marshals’” by spreading “such
defamatory information all over, while knowing it untrue . . . .” (Compl. at 17.) Such
allegations are not definite enough, on their own, to sustain his defamation claim because they
do not identify the recipients of Amato’s alleged publication. Cf. Messina v. Fontana, 260 F.
Supp. 2d 173, 177 & n.5 (D.D.C. 2003) (finding defamation complaint sufficiently definite under
notice pleading standard where allegations identified, inter alia, the recipients and dates of the
allegedly libelous communications). The only “‘factual enhancement’” for these assertions,
Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557), can be found in Exhibit 3 to the
complaint, which purports to be email correspondence from October 2008 between Amato and
David Zapp, plaintiff’s former co-counsel in the Gon case,1 who subsequently forwarded the
emails to plaintiff. (See id., Ex. 3 (Amato-Zapp correspondence).) Zapp wrote to Amato “on
behalf of” plaintiff and noted that plaintiff had been prohibited from visiting his client at the
D.C. Jail because “he passed a piece of candy to his client, apparently unaware that such a
transfer of candy is unauthorized.” (Id. at 1.) Zapp then inquired how plaintiff might regain his
visiting privileges. (Id.) Amato responded: “It is not my decision. The corrections experts have
deemed him a security risk. He passed contraband, lied about it and then treated the episode as
1
See Notice of Attorney Appearance, United States v. Gon, No. 07-CR-181 (D.D.C. May
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a joke, referring to it as chocolate-gate. He was restrained in Court after assaulting US
Marshals. . . . The agency has determined that he cannot be allowed back in the facility.” (Id.
(emphases added).) Although Amato’s email to Zapp does not contain the precise phrases
alleged in the complaint, the Court will construe plaintiff’s defamation claim as premised upon
the actual language used in Amato’s email.2
Under D.C. law, to establish a prima facie case for libel, a plaintiff must allege: “(i) a
false and defamatory statement was written by the defendant about the plaintiff; (ii) the
defendant published it without privilege to a third party; (iii) the defendant exhibited some fault
in publishing the statement; and (iv) the statement is actionable as a matter of law or the
publication has caused the plaintiff special harm.” Messina, 260 F. Supp. 2d at 176-77; see also
Jankovic v. Int’l Crisis Group, 494 F.3d 1080, 1088 (D.C. Cir. 2007). Plaintiff has not made out
a prima facie for three of Amato’s four statements that are at issue.
First, the complaint fails to allege the falsity of Amato’s “security risk” comment. At
best, the complaint alleges merely that plaintiff was not in fact a security risk, and that Amato
knew this. (See Compl. at 17.) However, the complaint does not challenge the accuracy of
Amato’s actual statement: that corrections experts deemed plaintiff a security risk. Plaintiff
effectively concedes the fact of this determination while disputing only its accuracy. (See, e.g.,
Opp’n at 5-6 (“Government’s ‘experts believe” Plaintiff Ning Ye ‘is a security risk’ (?!) while
knowing it is true or false? . . . From when, for why, on what basis, has this Plaintiff become a
‘security risk’ in the eyes of the U.S. law enforcement apparatus, reflected in Ms. Amato’s and
1, 2008) (Dkt. 80).
2
Amato appears to do the same. (See, e.g., Amato’s Mem. in Supp. of Mot. to Dismiss
[Dkt. 3] at 4.)
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her companions’, if any, archives? Any basis? Any basis?!” [sic]).) Plaintiff therefore has not
stated a claim that Amato’s actual “security risk” comment was defamatory.
Second, plaintiff cannot allege the falsity of Amato’s comment regarding “contraband,”
because that statement is true. “Truth is an absolute defense to defamation claims.” Benic v.
Reuters America, Inc., 357 F. Supp. 2d 216, 221 (D.D.C. 2004); Olinger v. American Sav. &
Loan Ass’n, 409 F.2d 142, 144 (D.C. Cir. 1969) (“Truth, of course, is a complete defense to a
charge of libel.”). “This defense may be established by demonstrating that the statements in
question are ‘substantially true.’” Benic, 357 F. Supp. 2d at 221 (quoting Lohrenz v. Donnelly,
223 F. Supp. 2d 25, 59 (D.D.C. 2002)). “‘Substantially true’ means that the ‘gist’ of the
statement is true or that the statement is substantially true, as it would be understood by its
intended audience.” Id. (quoting Moss v. Stockard, 580 A.2d 1011, 1023 (D.C. 1990))
(emphasis added).
Plaintiff does not deny that he gave his client some candy, nor could he plausibly deny
that this happened. Exhibit 3 shows that Zapp, writing to Amato on plaintiff’s behalf, was aware
that plaintiff “passed a piece of candy to his client” without authorization. (Compl., Ex. 3 at 1.)
Notably, plaintiff has not disavowed Zapp’s statement about the candy. Instead, plaintiff argues
that candy is not “contraband” as defined in the encyclopedia or in popular parlance. (Opp’n at
2-4.) This is irrelevant. What matters is that plaintiff’s pleadings assert that DOC rules did not
authorize plaintiff to give his client any candy. (See Compl. Ex. 3 at 1 (Zapp’s statement that
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plaintiff was unaware that “such a transfer of candy is unauthorized”).)3 By giving candy to his
client, plaintiff gave a prisoner something that he was not authorized to give. Because Zapp’s
own emails make clear that he would have understood the gist of Amato’s statement to be true,
plaintiff’s claim based on the contraband comment fails.
Third, Amato’s comment that plaintiff was “restrained in Court after assaulting US
Marshals” was not defamatory from the perspective of someone in Zapp’s position. A statement
is defamatory “if it tends to injure [] plaintiff in his trade, profession, or community standing,”
Moss, 580 A.2d at 1023, by making him “‘appear odious, infamous, or ridiculous.’” Klayman v.
Segal, 783 A.2d 607, 613 (D.C. 2001) (quoting Howard Univ. v. Best, 484 A.2d 958, 989 (D.C.
1984)). “The [C]ourt must determine as a threshold matter whether a statement is capable of
being construed as defamatory.” Benic, 357 F. Supp. 2d at 221. Here, the complaint alleges that
plaintiff was restrained after an altercation with the Marshals. (See Compl. at 9-10.) Plaintiff
therefore takes issue only with the phrase “assaulting.” However, “in determining whether any
publication is defamatory, ‘the publication must be considered as a whole, in the sense it would
be understood by the readers to whom it was addressed.’” Heard v. Johnson, 810 A.2d 871,
886 (D.C. 2002) (quoting Best, 484 A.2d at 989) (emphases added); accord Benic, 357 F. Supp.
2d at 221. The word “assaulting,” as used in Amato’s letter to Zapp, “may not be isolated and
3
The Court also takes judicial notice of the fact that when plaintiff gave his client the
candy, DOC regulations prohibited attorneys who were visiting clients from giving anything,
even legal documents, to prisoners. See, e.g., American Farm Bureau v. U.S. E.P.A., 121 F.
Supp. 2d 84, 106 (D.D.C. 2000) (taking judicial notice of federal agency policies printed in
Federal Register). According to DOC Program Statement (“PS”) 4160.3D, effective March 31,
2005 through February 28, 2008, attorneys were prohibited “from giving an inmate any item,
including legal documents.” DOC PC 4160.3D at 20 ¶ 19(d)(2) (emphasis added), available at
http://doc.dc.gov/doc/frames.asp?doc=/doc/lib/doc/program_statements/4000/pm_4160.3d_
attorney-client_relationship_(final_4-11-05).pdf.
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then pronounced defamatory, or deemed capable of a defamatory meaning.” Klayman, 783 A.2d
at 614. Rather, the Court must “‘examine the statement in its totality in the context in which it
was . . . published” and “‘consider all the words used, not merely a particular phrase or
sentence.’” Id. (quoting Foley v. Lowell Sun Publ’g Co., 533 N.E.2d 196, 197 (1989)). Thus,
the Court must consider Amato’s entire letter. See Heard, 810 A.2d at 886 (rejecting plaintiff’s
“impl[ication] that the court should not consider the [publication] as a whole, but only those
statements” that plaintiff deemed defamatory). Amato and Zapp, both attorneys, were discussing
why plaintiff was not permitted to visit his and Zapp’s mutual client in the D.C. Jail. A
reasonable reader in Zapp’s position and circumstances would have understood that Amato’s
letter, as a whole, was explaining that plaintiff was deemed a security risk in light of, among
other things, his altercation with and subsequent restraint by U.S. Marshals. That reasonable
reader would also have understood the comment about “assaulting” as referring to the Marshals’
reasons for restraining plaintiff, which in turn was a reason why he was denied jail visitation
privileges. Cf. Washburn v. Lavoie, 357 F. Supp. 2d 210, 215-16 (D.D.C. 2004) (finding that
defendants’ letter which accused plaintiff of engaging in illegal conduct was not capable of
defamatory meaning, especially given that the letter’s recipients were “well aware of the running
dispute between the parties”). Accordingly, Amato’s statement in question was not defamatory.4
As for Amato’s statement that plaintiff “lied about” passing contraband, the Court can
4
In the alternative, the Court would conclude for similar reasons that the gist of Amato’s
statement about “assaulting” was substantially true as Zapp would have understood it. A
reasonable reader in Zapp’s position would have attributed the same meaning to Amato’s
comments about why plaintiff had been denied visitation privileges regardless of whether she
had written “assaulting” or “allegedly assaulting.” Cf. Masson v. New Yorker Magazine, Inc.,
501 U.S. 496, 517 (1991) (“[A] statement is not considered false unless it ‘would have a
different effect on the mind of the reader from that which the pleaded truth would have
11
find nothing in the complaint or Exhibit 3 that would suggest that this statement was not
defamatory or false as understood by someone in Zapp’s position. Cf. Moldea v. New York
Times Co., 15 F.3d 1137, 1144 (D.C. Cir. 1994) (“The bald statement ‘Jones is a liar,’ for
example, would plainly fall within the class of factual defamatory statements.”). Because Amato
fails to address this statement, her motion to dismiss the defamation claim is denied as to this
portion of Exhibit 3.
2. Civil conspiracy
Count IX’s civil conspiracy claim, presumably pursuant to 42 U.S.C. § 1985, must be
dismissed. Plaintiff alleges that Amato engaged in a “smear campaign tarnishing the Plaintiff as
‘contraband smuggler’, security threats’ to the United States [sic] . . . .” (Compl. at 19.)
“Among other things, section 1985 plaintiffs must allege the elements of civil conspiracy,
including: ‘an agreement to take part in an unlawful action or a lawful action in an unlawful
manner.’” Barr v. Clinton, 370 F.3d 1196, 1200 (D.C. Cir. 2004) (quoting Hall v. Clinton, 285
F.3d 74, 83 (D.C. Cir. 2002). Plaintiff makes only the conclusory allegation that Amato and the
other defendants were “acting apparently in an unwritten agreement, meeting of minds, to
commit [] serious civil rights offense[s] . . . .” (Compl. at 19.) Plaintiff’s “bare assertion[]”
about an unwritten agreement is a legal conclusion that, “much like the pleading of a conspiracy
in Twombly, amount[s] to nothing more than a ‘formulaic recitation of the elements’” of a civil
conspiracy claim. Iqbal, 129 S. Ct. at 1951 (quoting 550 U.S. at 555). Count IX will be
dismissed as to all defendants.
produced.’” (quoting R. Sack, Libel, Slander, and Related Problems 138 (1980)).
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B. The Remaining Counts and Claims
As an initial matter, plaintiff asserts that his claims are based in part upon 28 U.S.C. §
1443, which governs the removal of civil rights actions from state to federal court, and 18 U.S.C.
§§ 241 and 242, which are criminal statutes. Amato correctly notes that neither the venue nor
criminal statutes provide private causes of action. See, e.g., Owens v. Dist. of Columbia, No. 08-
CV-2029, 2009 WL 1916280, at *5 (D.D.C. July 6, 2009) (dismissing claims under 18 U.S.C. §§
241 and 242 and citing D.C. Circuit cases). In addition, although plaintiff invokes 42 U.S.C. §
1982, which prohibits racial discrimination in the enjoyment of the right “to inherit, purchase,
lease, sell, hold, and convey real and personal property,” the complaint contains no allegations
that would support a claim under § 1982. Any of plaintiff’s claims that are premised on any of
these statutes must be dismissed with prejudice as to all defendants.
Plaintiff also relies upon 42 U.S.C. § 1986, presumably in support of Count X’s claim of
“negligence in supervision.” A claim under § 1986 requires that plaintiff state a valid claim
under § 1985. See Thomas v. News World Commc’ns, 681 F. Supp. 55, 72 (D.D.C. 1988). As
discussed, plaintiff does not state a valid claim for relief under § 1985 and therefore cannot make
out a claim pursuant to § 1986. See id.; McManus v. Dist. of Columbia, 530 F. Supp. 2d 46,
76 (D.D.C. 2007). Any claims premised on § 1986, including Count X, will be dismissed as to
all defendants.
Finally, Counts I, II, III, IV, V, VI, and VIII do not name Amato. Nor do they describe
conduct related to Amato’s alleged participation in a smear campaign against plaintiff.
Therefore, they must be dismissed as to Amato because they do not “plead[] factual content that
allows the court to draw the reasonable inference that [Amato] is liable for the misconduct
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alleged.” Iqbal, 129 S. Ct. at 1949.
III. THE FEDERAL DEFENDANT’S MOTION
“A summons must be served with a copy of the complaint.” Fed. R. Civ. P. 4(c)(1). In
order to have properly served the federal defendants in either their official or individual
capacities, plaintiff must have also served the United States. See Fed. R. Civ. P. 4(i)(2) & (3).
Plaintiff must have served the United States by, inter alia, (1) delivering a copy of the summons
and complaint to the U.S. Attorney for the District of Columbia (or the Assistant U.S. Attorney
or the clerical employee designated by the U.S. Attorney in a writing filed with this Court’s
Clerk), or (2) sending a copy of the summons and complaint by registered or certified mail to the
civil process clerk at the U.S. Attorney’s Office for the District of Columbia (“USAO-DC”). See
Fed. R. Civ. P. 4(i)(1)(A).
The federal defendants contend that plaintiff has failed to effect proper service on the
United States by serving a copy of the summons and complaint on the U.S. Attorney. (See Fed.
Defs.’ Mot. to Dismiss [“Fed. Defs.’ Mot.”] [Dkt. 17] at 5.) They have submitted a declaration
from Gary Nails, an employee with the USAO-DC whose responsibilities include docketing the
receipt of civil summonses and complaints. (See id., Decl. of Gary Nail [“Nails Decl.”] ¶ 1.)
Based on his review of the records of all service of process received by the USAO-DC, Nail
attests that the office has not received service of a both a complaint and a summons in this
matter, nor have copies of the complaint forwarded to the USAO-DC by the Department of
Justice been accompanied by a summons. (See id. ¶¶ 4-9.)
There is no indication that plaintiff ever served the United States by delivering the
necessary documents to the U.S. Attorney for the District of Columbia. Plaintiff has filed a
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personal “affidavit of service” in which he attests that “he has caused to duly serve” the federal
defendants “by personal service . . . via private process servers.” (Pl.’s Aff. of Service [Dkt. 8]
at 1.) This is not competent proof of service because such proof must be made by affidavit of the
server. See Fed. R. Civ. P. 4(l)(1).
Plaintiff’s affidavit is accompanied by four affidavits by the individual process servers;
the only reference to the U.S. Attorney for the District of Columbia comes in an affidavit by Joel
Wishengrad which attests that on January 21, 2009, he served former Attorney General “Michael
Mukasey c/o US Attorney Office [sic]” at “3rd Street N.W. US Attorney Office [sic]”5 by
serving a “Clerk” with a summons and complaint in this matter. (See Pl.’s Aff. of Service,
Attachment 3 (1st Aff. of Joel Wishengrad, Jan. 21, 2009).) A second affidavit by Wishengrad,
submitted with plaintiff’s opposition to the federal defendants’ motion, confirms that these
documents were served to “[d]efendant Michael Mukasey” and not to the United States, nor to
the attention of the U.S. Attorney for the District of Columbia. (See Pl.’s Mem. in Supp. of
Opp’n to Fed. Defs.’ Mot. [Dkt. 21], Ex.1 (2nd Aff. of Joel Wishengrad, Jan. 21, 2009) at 1.)
Plaintiff has thus failed to prove that he ever properly served the United States.6
Plaintiff must effectuate proper service of the summons and complaint on the United
5
Notably, this address is inconsistent with the USAO-DC address where plaintiff attested
that Wishengrad served the documents. (See Pl.’s Mot. for Entry of Default Judgment [Dkt. 11]
at 4 (plaintiff’s affidavit that Wishengrad served Mukasey, care of USAO-DC, at “555 4th Street,
NW”).)
6
Even if the Court were to construe the documents served on former Attorney General
Mukasey as documents served on the United States, there is no proof that they were delivered to
the U.S. Attorney for the District of Columbia in compliance with Rule 4, because there is no
indication that the “[c]lerk” at the USAO-DC with whom Wishengrad left the documents was the
“clerical employee whom the United States attorney designate[d] in a writing filed with” this
Court’s Clerk. Fed. R. Civ. P. 4(i)(A)(i).
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States in accordance with Federal Rule of Civil Procedure 4(i)(1)(A). That is, plaintiff must
either deliver a copy of the summons and complaint to the U.S. Attorney for the District of
Columbia (or to an Assistant U.S. Attorney or clerical employee whom the U.S. Attorney has
designated in a writing filed with this Court’s Clerk) or send a copy of the summons and
complaint by registered or certified mail to the civil-process clerk at the USAO-DC.7 Plaintiff
shall file a proof of service on or before September 2, 2009; if he fails to do so, the remaining
claims and counts against the federal defendants will be dismissed.
IV. PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT
A default judgment may only be entered against the United States or its officers “only if
the claimant establishes a claim or right to relief by evidence that satisfies the court.” Fed. R.
Civ. P. 55(d). Given plaintiff’s failure to properly serve the federal defendants, he is not entitled
to the requested relief and his motion for default judgment will be denied.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that:
with respect to all defendants, plaintiff’s claims pursuant to 18 U.S.C. §§ 241 and
242; 28 U.S.C. § 1443; and 42 U.S.C. § 1982 are dismissed with prejudice, while
Counts IX and X and plaintiff’s claims pursuant to 42 U.S.C. §§ 1985 and 1986
are dismissed without prejudice; and
with respect to defendant Amato, all remaining claims and counts except Count
7
The Court’s order only requires plaintiff to take further steps in accordance with Rule
4(i)(1)(A). Although service on the United States also requires that plaintiff send a copy of the
summons and complaint “by registered or certified mail to the Attorney General of the United
States at Washington, D.C.,” Fed. R. Civ. P. 4(i)(1)(B), the federal defendants do not argue that
plaintiff failed to comply with this requirement.
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VII are dismissed without prejudice, while Count VII is dismissed with prejudice
except for plaintiff’s claim based on Amato’s alleged statement in Exhibit 3 to the
complaint that plaintiff “lied about” giving candy to his client at the D.C. Jail.
It is FURTHER ORDERED that:
Amato’s motion to dismiss [Dkt. 3] is GRANTED IN PART AND DENIED IN
PART;
the federal defendants’ motion to dismiss [Dkt. 17] is GRANTED IN PART but
plaintiff is required to serve a copy of the summons and complaint on the United
States in accordance with Federal Rule of Civil Procedure 4(i)(1)(A) by either
delivering a copy of the summons and complaint to the U.S. Attorney for the
District of Columbia (or to an Assistant U.S. Attorney or clerical employee whom
the U.S. Attorney has designated in a writing filed with this Court’s Clerk) or
sending a copy of the summons and complaint by registered or certified mail to
the civil-process clerk at the USAO-DC. Plaintiff shall file a proof of service on
or before September 2, 2009; if he fails to do so, the remaining claims against the
federal defendants will be dismissed.
plaintiff’s motion for entry of default judgment [Dkt. 11] is DENIED;
plaintiff’s motion to strike [Dkt. 5] is DENIED;
plaintiff’s motion to amend [Dkt. 23] is GRANTED; and
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Amato’s motion to strike [Dkt. 24] is GRANTED.
SO ORDERED.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
DATE: August 13, 2009
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