Newby v. Bush

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
BETTY ANN NEWBY, )
)
Plaintiff, )
)
v. ) Civ. Action No. 08-1624 (EGS)
)
BARACK H. OBAMA,1 et al., )
)
Defendants. )
)
______________________________)
MEMORANDUM OPINION
Plaintiff, proceeding pro se, filed suit against various
federal officials and public figures alleging that they engaged
in surveillance of her and conspired against her in order to deny
her constitutional rights. Pending before the Court is
defendants’ motion to dismiss the complaint for lack of subject
matter jurisdiction, which was filed on March 23, 2009.2 Upon
careful consideration of defendants’ motion to dismiss, the
applicable law, the entire record herein, and for the reasons
stated below, the Court GRANTS defendants’ motion to dismiss.3
1
Pursuant to Federal Rule of Civil Procedure 25(d), Barack
H. Obama, in his official capacity as President of the United
States, is substituted as defendant in place of former President
George W. Bush.
2
The motion to dismiss was filed on behalf of all
government employees sued in their official capacity.
3
On May 7, 2009, the Court issued an Order advising the
pro se plaintiff of her obligations under the Federal Rules of
Civil Procedure and the local rules of this Court. See Docket
Entry 5. The Court ordered plaintiff to file her opposition or
I. Background
On September 22, 2008, plaintiff Betty Ann Newby filed a
complaint against a multitude of defendants including President
George W. Bush, President George H. W. Bush, Vice President Dick
Cheney, Chief Justice John Roberts, Jr., and numerous other
members of the Executive, Legislative, and Judicial Branches of
the United States Government, as well as other individuals.
In her complaint, plaintiff alleges that defendants have
committed various violations of her constitutional rights,
including depriving her of the right to vote and destroying her
property. See generally Compl.4 The eighteen page handwritten
complaint sets forth vague legal arguments generally centered
around plaintiff’s failed attempts to participate in the
confirmation hearings of Chief Justice John Roberts, Jr., Justice
other response to defendants’ motion by June 8, 2009, and further
notified her that, if she failed to file a timely response, the
Court may treat the motions as conceded. To date, no response
has been filed. The Court’s records do not reflect that any mail
sent to plaintiff has been returned to the Clerk of Court as
undeliverable. Nor is there a notification of a change of
plaintiff’s address. The Court, therefore, treats defendants’
motion as conceded; however, because the Court concludes that it
does not have jurisdiction, it dismisses the action as to all
defendants.
4
In their motion to dismiss, defendants refer to a type-
written version of the complaint that was apparently served on
defendants along with the handwritten version that was filed in
this case. Defendants state that this version of the complaint
is attached to their motion to dismiss; however, no such “amended
complaint” is attached to the motion. Because this version of
the complaint was not filed with the Court, the Court will cite
to the original complaint filed at Docket Entry 1.
2
Samuel Alito, Jr., and several other Federal officials. See
generally Compl.
Plaintiff also asserts that she is under surveillance by
various government agencies and officials who are stalking her
and conspiring against her. See generally Compl. Specifically,
plaintiff alleges that “George W. Bush and his officials and
agents stalked her, interrupted her by having a Kinko[s] employee
sound a false alarm, and used one of its agents to shut-down the
copy machines to keep her from filing the mandamus application to
enjoin the Senate.” Compl. ¶ 18. Plaintiff also alleges that
“agents for President Bush interfered with [her] job at []
Georgetown Hospital [by] requiring her to work over 80 hours
during the week of” the confirmation hearings of several Federal
officials. Compl. ¶ 24.5 Plaintiff further asserts that “[a]n
official in the George H. W. Bush Administration illegally
classified [her] as a national security risk in 1990 as a
political favor to Phillips Petroleum Company and the Harriet
Miers’ law firm and the Johnson and Whittenburg heirs,” and that
she was surveilled through the “Home guard surveillance network.”
Compl. ¶ 9. Plaintiff requests a preliminary and permanent
injunction, declaratory relief, compensatory damages, and a
“three judge court decision.” Compl. at 16.
5
The paragraphs and pages of the handwritten complaint are
not in order. Paragraph 24 appears on pages 9 and 11.
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II. Analysis
Defendants have moved to dismiss the case for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure.6 Federal courts are courts of
limited jurisdiction and the plaintiff bears the burden of
establishing subject matter jurisdiction. See Kokkonen v.
Guardian Life Ins. Co., 511 U.S. 377 (1994). While complaints
filed by pro se litigants are held to less stringent standards
than those applied to formal pleadings drafted by lawyers, see
Haines v. Kerner, 404 U.S. 519, 520 (1972); Gray v. Poole, 275
F.3d 1113, 1115 (D.C. Cir. 2002), “even a pro se plaintiff bears
the burden of establishing that the Court has subject matter
6
Defendants also moved to dismiss under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon which
relief can be granted, and the doctrines of collateral estoppel
and res judicata based on other similar actions that have been
filed in this Court. The Court notes that plaintiff has filed
several actions in this Court with overlapping and repetitive
claims: Newby v. President George Bush, et al., Civil Action No.
05-1877 (D.D.C.) (“Newby I”), in which Judge Huvelle dismissed
plaintiff’s claims seeking to enjoin the confirmation hearings of
Chief Justice John Roberts on grounds of absolute immunity; Newby
v. George W. Bush, et al., Civil Action No. 06-160 (RCL)
(D.D.C.), in which Chief Judge Lamberth sua sponte dismissed as
frivolous plaintiff’s complaint asserting claims that she was
under surveillance; and Newby v. George W. Bush, et al., 08-983
(RMC) (D.D.C.) (“Newby III”), where plaintiff moved to
voluntarily dismiss her claims of conversion of property and
violations of her civil and privacy rights, then appealed Judge
Collyer’s Order granting plaintiff’s motion for dismissal.
Because the Court concludes that it does not have subject matter
jurisdiction over plaintiff’s claims, it need not reach the
question of whether plaintiff adequately stated a claim under
Rule 12(b)(6) or whether the doctrines of collateral estoppel and
res judicata apply.
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jurisdiction.” Price v. College Park Honda, No. 05-0624, 2006 WL
1102818, at *6 (D.D.C. Mar. 31, 2006) (citing Rosenboro v. Kim,
994 F.2d 13, 17 (D.C. Cir. 1993)). “[T]he federal courts are
without power to entertain claims that are ‘so attenuated and
unsubstantial as to be absolutely devoid of merit.’” Hagans v.
Lavine, 415 U.S. 528, 536-37 (1974) (quoting Newburyport Water
Co. v. Newburyport, 193 U.S. 561, 579 (1904)). No federal
question jurisdiction exists “when the complaint is patently
insubstantial.” Best v. Kelly, 39 F.3d 328, 330 (D.C. Cir. 1994)
(internal citations omitted); see also Neitzke v. Williams, 490
U.S. 319, 327 n.6 (1989). To be dismissed under Rule 12(b)(1) on
this ground the claims must be “flimsier than ‘doubtful or
questionable’- they must be ‘essentially fictitious.’” Best, 39
F.3d at 330 (quoting Hagans, 415 U.S. at 536-37). Claims that
are essentially fictitious include those that allege “bizarre
conspiracy theories, any fantastic government manipulations of
their will or mind [or] any sort of supernatural intervention.”
Id. at 330.
Having reviewed plaintiff’s complaint, it appears that its
claims relating to alleged government surveillance and harassment
are of the sort of “bizarre conspiracy theory” that warrant
dismissal under Rule 12(b)(1). For this reason, the Court
concludes that the complaint is frivolous and that it does not
have jurisdiction over plaintiff’s claims. Therefore,
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defendants’ motion to dismiss is GRANTED and the claims are
DISMISSED with prejudice as to all defendants. An appropriate
Order accompanies this Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Judge
February 2, 2010
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