Opinion
CIVIL 23-cv-11-LM
06-27-2023
Ekoue Dodji Aboussa v. Keystone Management Co. and United States Federal Bureau of Investigation
REPORT AND RECOMMENDATION
ANDREA K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE
Pro se plaintiff Ekoue Dodji Aboussa has sued his landlord and the Federal Bureau of Investigation (“FBI”), claiming that the landlord, Keystone Management Co. (“Keystone”) allowed the FBI to move into a nearby apartment and harass Mr. Aboussa and his family. The defendants have moved to dismiss the complaint. Pursuant to LR 72.1, the motions have been referred to the undersigned Magistrate Judge for a report and recommendation. For the reasons that follow, the district judge should grant the defendants'' motions.
Standard of Review
When evaluating a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court asks whether the plaintiff has made allegations in her complaint that are sufficient to render her entitlement to relief plausible. See Manning v. Boston Med. Ctr. Corp., 725 F.3d 34, 43 (1st Cir. 2013). The court accepts all well-pleaded facts as true and draws all reasonable inferences in the non-moving party's favor. Hamann v. Carpenter, 937 F.3d 86, 88 (1st Cir. 2019). The court, however, disregards conclusory allegations that simply parrot the applicable legal standard. Manning, 725 F.3d at 43. Because Mr. Aboussa is proceeding pro se, the court construes his amended complaint liberally. See Erikson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal citations omitted) (“a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers”). “Pro se status, however, does not insulate a party from complying with procedural and substantive law. Even under a liberal construction, the complaint must adequately allege the elements of a claim with the requisite supporting facts.” Wood v. U.S. Bank, No. 22-cv-235-JL, 2023 WL 3867254, at *2 (D.N.H. June 7, 2023) (cleaned up).
Factual Allegations
Mr. Aboussa's amended complaint (Doc. No. 13) is disorganized and difficult to follow. He and his family have been tenants in an apartment complex in Concord, New Hampshire, for the past ten years. Keystone manages the complex. Mr. Aboussa alleges that Keystone personnel “moved” FBI personnel into the complex “to perform programming with psychotronic use of electronic tracking communication system.” Am. Compl. (Doc. No. 13) at 1. The court turns next to the defendants' respective motions to dismiss.
A. Keystone's Motion to Dismiss (Doc. No. 15)
Mr. Aboussa alleges that Keystone violated several provisions of the Fair Housing Act, 42 U.S.C. § 3601, et seq. (“FHA”), along with certain other statutory and criminal laws.
1. Fair Housing Act
As relevant here, the FHA provides that “it shall be unlawful . . . (b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling . . . because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604. To prove a violation of the FHA, the plaintiff must, at a minimum, show either that the defendants acted with discriminatory intent, or that their actions have a disparate impact based on race. Macone v. Town of Wakefield, 277 F.3d 1, 5 (1st Cir. 2002). The complaint here fails to allege sufficient facts to meet either of those requirements.
First, the complaint does not allege facts sufficient to demonstrate that any of the defendants acted with a discriminatory intent. “A plaintiff can show discriminatory intent by either direct or indirect evidence.” Pina v. Town of Plympton, 529 F.Supp.2d 151, 155 (D. Mass. 2007) (internal quotation marks omitted). Here, the complaint does not allege 3 either. To be sure, the complaint contains a litany of grievances aimed at Keystone, include renting an apartment to FBI personnel, enabling the FBI to conduct surveillance, and trying to collect rent allegedly not due. But even accepting these allegations are true, the complaint does not allege facts suggesting that Keystone acted because of Mr. Aboussa's race or national origin. He does not allege, for example, any statements suggesting racial animus or any instances in which Keystone treated individuals of other races differently. Nor does the complaint contain any factual allegations suggestive of Keystone policies that have a disparate impact on racial or ethnic minorities. Accordingly, Mr. Aboussa's FHA claim against Keystone should be dismissed.
2. Constitutional Violations
Seeking relief under 42 U.S.C. § 1983, Mr. Aboussa claims that, by renting an apartment to FBI personnel, Keystone violated his Fourth Amendment right to be free from unreasonable searches and seizures. A plaintiff claiming an infringement of his civil rights under § 1983 must establish that the defendant acted under “color of any statute, ordinance, regulation, custom, or usage, of any State or Territory of the District of Columbia,” in depriving plaintiff of a right secured by the Constitution or laws of the United States. See 42 U.S.C. § 1983.
A private actor, such as Keystone, can be considered a state actor for purposes of § 1983 only under limited circumstances, none of which are present here. See Georgia v. McCollum, 505 U.S. 42, 54 (1992) (describing circumstances under which public defender could be deemed to be a state actor for purposes of § 1983); see also, Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Sagardía De Jesus, 634 F.3d 3, 10 (1st Cir.) (same), cert. denied, 132 S.Ct. 549 (2011). The constitutional claims asserted against Keystone should, therefore, be dismissed.
3. Criminal Laws
Mr. Aboussa also alleges that Keystone violated several criminal statutes, including 18 U.S.C. § 2261A (stalking), 18 U.S.C. § 1091 (genocide), and 18 U.S.C. § 351(a) (assault of certain federal officials). But, in general, “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another”)). Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973). Mr. Aboussa also alleges that Keystone violated the Electronic Communications Privacy Act, 18 U.S.C. 2510, et. seq. (“ECPA”). While there exists a private right of action under the ECPA, see 18 U.S.C. § 2520, Mr. Aboussa's complaint is devoid of any allegations regarding Keystone other than allegedly renting space to the FBI to conduct “programming with psychotronic use of electronic tracking communication system.” This allegation, standing alone, does not give rise to any nonfrivolous claim upon which relief can be granted. Therefore Mr. Aboussa's claims that are based on criminal violations should be dismissed.
B. FBI's Motion to Dismiss (Doc. No. 18)
Mr. Aboussa claims that the FBI conducted “illegal surveillance programming with electronic tracking communications systems.” Am. Compl. (Doc. No. 13) at 9. He also alleges that he and his family are victims of “human remote mind control” and murder. Id. at 9-10. Finally, he asserts that the FBI spoke to him from a distance with psychotronic controller 24/7 telling him when and which part of his body they are going to hurt and torture . . . .” Id. Although the FBI asserts several bases for dismissal, the court grants its motion to dismiss because it lacks subject matter jurisdiction over Mr. Aboussa's claims. See Efreom v. McKee, 46 F.4th 9, 16 (1st Cir. 2022) (describing determination of subject matter jurisdiction as “threshold matter”) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998)).
“It is a bedrock rule that a party seeking to invoke the jurisdiction of a federal court must bear the burden of demonstrating the existence of such jurisdiction.” Gordo-Gonzalez v. United States, 873 F.3d 32, 35 (1st Cir. 2017) (citing Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995). “A patently insubstantial” complaint may be dismissed for want of subject-matter jurisdiction under Fed.R.Civ.P. 12(b)(1). Neitzke v. Williams, 490 U.S. 319, 327 n.6 (1989) (citing Hagans v. Lavine, 415 U.S. 528, 536-537 (1974) (federal courts lack power to entertain claims that are “so attenuated and unsubstantial as to be absolutely devoid of merit”) (citation omitted); Bell v. Hood, 327 U.S. 678, 682-683 (1946)).
The assertions in the complaint in this case fall squarely within the standard set forth in Neitzke. While this court has no reason to question the intensity and sincerity of Mr. Aboussa's concern for his and his family's safety and security, his allegations against the FBI do not give rise to any nonfrivolous claim sufficient to invoke this court's subject matter jurisdiction. His allegations of harassment stemming from “remote mind control,” are precisely the sort of allegations that courts, including this one, have dismissed as factually frivolous. See, e.g., Fisherman v. Doe, No. 22-cv-246-SE, 2023 U.S. Dist. LEXIS 23614 (D.N.H. Jan. 9, 2023) (recommending dismissal of complaint alleging “satellite based neural monitoring” to suppress evidence of his innocence of criminal charges), adopted, 2023 U.S. Dist. LEXIS 22715 (D.N.H. Feb. 10, 2023); Nduka v. Williams, 410 F.Supp.3d 719, 721-22 (E.D. Pa. 2019) (collecting cases and noting that “[f]ederal courts routinely dismiss allegations regarding broad-based conspiracies of computer hacking, surveillance, tracking, and the like, as factually frivolous . . . where these allegations are fanciful, fantastic, delusional, irrational, or wholly incredible.”); Barnes-Velez v. FCC, No. 6:18-cv-634-Orl-18GJK, 2018 WL 4178196, at *3 (M.D. Fla. May 8, 2018) (rec. dec.) (dismissing as frivolous a plaintiff's complaint alleging that various government agencies installed cameras and listening devices in her cable box), aff'd, 2018 WL 4153937 (M.D. Fla. Aug. 30, 2018); see also Denton v. Hernandez, 504 U.S. 25, 33, (1992) (recognizing that a court at the motion to dismiss stage need not accept as true a plaintiff's factual allegations that describe “fantastic or delusional scenarios”).
To allow this case to proceed any further would be a waste of limited judicial resources. See Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 364 (2nd Cir. 2000) (noting that the early dismissal of a frivolous action is necessary “to preserve scarce judicial resources,” including cases where the plaintiff has paid the filing fee).
Accordingly, the FBI's motion to dismiss should be granted.
Conclusion
For the foregoing reasons, the district judge should grant the motions to dismiss filed by Keystone (Doc. No. 15) and the FBI (Doc. No. 18). If the district judge adopts this recommendation, the undersigned recommends that the clerk's office be directed to close this case.
Any objections to this Report and Recommendation must be filed within fourteen days of receipt of this notice. See Fed.R.Civ.P. 72(b)(2). The fourteen-day period may be extended upon motion. Only those issues raised in the objection(s) to this Report and Recommendation are subject to review in the district court. See Sch. Union No. 37 v. United Nat'l Ins. Co., 617 F.3d 554, 564 (1st Cir. 2010). Any issues not preserved by such objection(s) are precluded on appeal. See id. Failure to file any objections within the specified time waives the right to appeal the district court's Order. See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016)