Opinion
Civil Action 2:23-439
09-13-2023
NICHOLAS WEIR, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.
Colville Judge
REPORT AND RECOMMENDATION
PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the Motion to Dismiss Plaintiff's Amended Complaint filed by Defendants Allegheny Health Network and Jessica Meenihan, PA (ECF No. 37) and joined by Defendants Anisa Islamova and William and Cheryl Abt be granted with respect to Counts VIII, IX, X, XIII-XXI and XXXI.
It is further recommended that the state law claims asserted against these defendants in Counts I through VII, XI, XII, and XXII through XXX be dismissed without prejudice pursuant to 28 U.S.C. § 1367(c)(3).
II. Report
Plaintiff Nicholas Weir brings this action against the United States, various federal agencies, a hospital, a physician, two physician assistants, a nurse and two neighbors in which he alleges a variety of claims under the federal and state constitutions and Pennsylvania law. He claims to have been subjected to multiple vast conspiracies organized for the purpose of “torturing and sabotaging Plaintiff's life,” which, according to him, include poisoning him, sabotaging his car and injecting him with a “bioweapon.”
Pending before the Court for resolution is a motion to dismiss filed on behalf of Allegheny Health Network (“AHN”) and Jessica Meenihan, PA, and later joined by Anisa Islamova and William and Cheryl Abt.
A. Procedural History
Plaintiff commenced action on March 14, 2023 and filed an Amended Complaint the next day (ECF No. 4). The Amended Complaint is 80 pages long and includes 34 counts against 13 named defendants as well as a number of John and Jane Does.
Plaintiff subsequently moved for and was granted leave to substitute William Abt for “John A. Doe,” Cheryl Abt for “Jane C. Doe” and Anisa Islamova, R.N. for “Jane A. Doe RN.” Defendants Jane Doe(s), Jane B. Doe, RN, John Doe and John B. Doe have not been identified by Plaintiff.
Plaintiff's claims are divided into groups: Counts I through VII allege medical malpractice claims against AHN, Dr. Camilo Caceres, Jessica Meenihan, PA, Sherry Sagath, PA, Anisa Islamova, R.N. and a nurse identified only as “Jane B. Doe.” Counts VIII through X and XIII through XX allege federal constitutional claims (also citing provisions of the Pennsylvania constitution). Count XXI alleges a claim under the Federal Tort Claims Act (FTCA). Counts XI through XII and XXII through XXXI allege state law claims relating to various torts. Finally, Counts XXXII through XXXIV assert a challenge the constitutionality of several federal statutes. In Plaintiff's “List of Causes of Action in This Case” (ECF No. 4 at 46-49), nearly all of the claims are asserted against “Defendants” without distinguishing between them.
In the body of the Amended Complaint, several of the claims (Counts XII through XIV, XXIV, XXVIII and XXXI through XXXIV) appear to be asserted against “Pitt.” The University of Pittsburgh was a defendant in a prior case commenced by Plaintiff in this district, Civ. A. No. 2:21-cv-1206, but is not named as a defendant in this case. Because the Amended Complaint refers elsewhere to these claims as being asserted against all Defendants, all will be addressed herein.
On June 12, 2023, a motion to dismiss was filed on behalf of Defendants AHN and Meenihan (ECF No. 37). On July 21, 2023, Defendant Islamova joined the motion (ECF No. 73) and on July 24, 2023, Defendants William and Cheryl Abt also joined the motion (ECF No. 77). The motion has been fully briefed (ECF Nos. 37, 85, 96, 103).
Separately, the United States, the Federal Bureau of Investigation, the Central Intelligence Agency, the Department of Defense, the Office of Government Ethics and the Food and Drug Administration (the “Federal Defendants”) filed a motion to dismiss (ECF No. 57). Plaintiff's 60-page response addresses both motions. Another motion to dismiss has been filed by Defendants Caceres and Sagath (ECF No. 97), which is still in the process being briefed. A Report and Recommendation was issued on September 1, 2023 that recommends dismissal of the Federal Defendants.
B. Relevant Factual Allegations
Plaintiff alleges that after “government agents” poisoned his cocktail at a comedy show on November 4, 2022, he went to AHN on November 19, 2022, where Dr. Camilo Caceres offered and Anisa Islamova, RN administered to him a “drug cocktail” via IV for treatment of a migraine headache. The mixture contained diphenhydramine, Ketorolac, Metoclopramide and sodium chloride. (ECF No. 4 ¶¶ 7, 11, 73.) However, Plaintiff claims that the drug cocktail also contained a “bio-weapon that is causing the sudden decline of his health.” (Id. ¶ 28.) Ever since the alleged injection of the “bio-weapon,” he claims to have experienced occasional headaches and other “unusual symptoms,” including “pain in his left middle finger that lasted about 3 minutes,” pain in certain joints of his left arm and fingers and in his right lung, and occasional twitching or shaking of his left hand. (Id. ¶ 16, 81.) He also noticed that:
the pain in his left arm has translocated incrementally to his right hand, hindbrain, upper and lower spinal cord, thigh, and feet. Also, he started to notice short-term memory loss and muscle weakness more often than usual. He also noticed that the hindbrain region and back of neck got distinguishable warm for a few hours. This had occurred in November 2022 also.(Id. ¶¶ 21, 91.)
Plaintiff also alleges that he was poisoned by items he purchased at a Giant Eagle store on November 11, 2022. (Id. ¶ 8.) Giant Eagle is not named as a defendant in this action.
Plaintiff filed a complaint with the Pennsylvania Attorney General but was told that AHN said that the substances injected into the IV were as noted on the checkout paper and were appropriate. (ECF No. 4 ¶ 4.) He contacted Pittsburgh Poison Control and the police, but they were unable to help him. (Id. ¶¶ 12-13.) He returned to AHN on “after he noticed that his entire left arm became numb” and was given a CT scan on December 2, 2022, which was normal. (Id. ¶ 19, 84.)
Plaintiff returned to the Emergency Room at AHN on February 20, 2023 and Sherry Sagath, PA and nurse “Jane B. Doe” offered him the same “migraine cocktail” he had been given on November 19, 2022, but he refused it (ECF No. 4 ¶¶ 25-26). He believes that the bioweapon “did not work as intended because it somehow primarily remained in his left arm,” but he contends that it is still active and can be induced by the inhalation of certain gases (Id. ¶ 29).
The Amended Complaint includes a number of other allegations related to Plaintiff's medical treatment, including allegations that one or more medical providers improperly performed various tests on him and refused his request to remove test results from his medical record. (Id. ¶¶ 30-37, 104). However, as discussed later in this Opinion, since the medical malpractice claims asserted in the Amended Complaint should be dismissed for lack of supplemental jurisdiction, these allegations need not be addressed further.
With respect to the Abts, who are his neighbors, Plaintiff alleges that they have been pumping toxic odorless gas into his house by means of pipes he found in his basement, even though the fire department he contacted reported that it was “not able to recognize the odorless gas or had any device that senses a wide-range of odorless gas.” He spent weeks digging up his basement and sealing holes he found with concrete. This gas caused him “various symptoms such as sleeplessness and brain fog” and he slept for months with the windows open and one or two commercial fans blowing. He contacted the District Attorney's Office and the police department and requested that they check the basement of the Abts' house but the responding officer “noted that Plaintiff should leave those neighbors . . . alone.” The Abts filed a criminal complaint against him because he dug a hole along the side of their house, but their complaint was subsequently withdrawn. (ECF No. 4 ¶¶ 54-60.) Significantly, Plaintiff alleges that this occurred after he moved to Pittsburgh from an apartment in New York where he had the same experience of being subjected to toxic odorless gas by “government agents” who moved into the basement of the adjacent house and drilled through the foundation. (Id. ¶¶ 51-54.) For nine years, he “had to relocate six times due to the toxic gas.” (Id. ¶ 47.)
Plaintiff also claims that all of the defendants, and other unnamed parties, engaged in various conspiracies against him. Among other things, he claims that his declining health, which was caused in part by his poisoning at AHN and subsequent exposure to toxic gas, was “conspiratorially coordinated by the government of agents affiliated with the government.” (ECF No. 4 ¶ 6.) See also, e.g., Id. ¶ 1 (alleging government conspiracies to coerce him to join the military by sabotaging and attacking him); ¶ 186 (“the overall conditions that the Defendants have subjected Plaintiff to as part of ongoing conspiracies to coerce him to join the military bears many attributes of confinement and involuntary servitude...”); Counts XVII through XX (alleging conspiracies).
C. Standards of Review
Under Rule 12(b)(1), a court may dismiss an action for lack of subject matter jurisdiction where the allegations are, inter alia, “wholly insubstantial.” Hagans v. Lavine, 415 U.S. 528, 536-37 (1974). The doctrine of substantiality is discussed in further detail below. Moreover: “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).
Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). “This requires a plaintiff to plead “sufficient factual matter to show that the claim is facially plausible,” thus enabling “the court to draw the reasonable inference that the defendant is liable for misconduct alleged.” Id. (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)). While the complaint “does not need detailed factual allegations ... a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
As noted by the Court of Appeals for the Third Circuit in Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011), a 12(b)(6) inquiry includes identifying the elements of a claim, disregarding any allegations that are no more than conclusions and then reviewing the well-pleaded allegations of the complaint to evaluate whether the elements of the claim are sufficiently alleged.
As Plaintiff correctly notes in his sur-reply brief, to the extent that the Abts challenge in their reply brief some of his pleaded facts, this is inappropriate at the motion to dismiss stage. As discussed herein, however, the Abts should be dismissed on other grounds.
D. Substantiality Doctrine
The Supreme Court “has repeatedly held 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'; ‘wholly insubstantial'; ‘obviously frivolous'; ‘plainly unsubstantial'; or ‘no longer open to discussion.'” Hagans v. Lavine, 415 U.S. 528, 536-37 (1974) (citations omitted). See also Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296, 307-08 (1989) (noting that a federal statute “authorizes courts to dismiss a ‘frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision.”)
In affirming the dismissal of claims brought against the FBI and DOD by a pro se litigant who alleged, among other things, that as a four-year-old, he was the victim of a government-run genetic experiment which caused his body to combine with “reptile DNA,” the Third Circuit noted that:
A federal court may sua sponte dismiss a complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) when the allegations within the complaint “are so attenuated and unsubstantial as to be absolutely devoid of merit, .. wholly insubstantial, .. obviously frivolous, .. plainly unsubstantial, ... or no longer open to discussion.” Hagans v. Lavine, 415 U.S. 528, 536-37 (1974) (internal citations and quotation marks omitted). There is no question that [plaintiff's] claims meet this standard, as they rely on fantastic scenarios lacking any arguable factual basis.DeGrazia v. F.B.I., 316 Fed.Appx. 172, 172 (3d Cir. 2009). See also Stratton v. Mecklenburg Cnty. Dep't of Soc. Servs., 521 Fed.Appx. 278, 289 (4th Cir. 2013) (dismissing claims that state courts terminated the plaintiffs' parental rights via a “centuries-old international child trafficking enterprise” as insubstantial); Best v. Kelly, 39 F.3d 328, 330 (D.C. Cir. 1994) (allegations that would be subject to the substantiality doctrine include “bizarre conspiracy theories, any fantastic government manipulations of their will or mind, any sort of supernatural intervention.”); Newby v. Obama, 681 F.Supp.2d 53, 56 (D.D.C. 2010) (dismissing as insubstantial allegations of government surveillance and harassment); O'Brien v. U.S. Dep't of Just., 927 F.Supp. 382, 38485 (D. Ariz. 1995), aff'd mem., 76 F.3d 387 (9th Cir. 1996) (dismissing as insubstantial allegations, among other things, that various government officials and other parties installed electronic and “hi-tech satellite” equipment on the plaintiff's residential telephone lines in order to “abuse, punish, persecute, victimize, orchestrate and conduct criminal, sadistic oral, lascivious, lewd attacks and rape assaults against [her].”).
While pro se complaints must be liberally construed, Higgs v. Attorney Gen. of the U.S., 655 F.3d 333, 339 (3d Cir. 2011), and regardless of the sincerity with which Plaintiff holds his beliefs, his numerous conspiracy claims are wholly fanciful, implausible and bizarre. He alleges that after his drink at a comedy club was poisoned by “government agents,” Dr. Caceres and Nurse Islamova injected a “bioweapon” into his IV at an AHN hospital, which has caused him to suffer various symptoms that can be activated by his inhalation of certain gases. He further alleges that AHN refused to reveal the contents of this bioweapon and treated him as if he merely had migraine headaches. He further alleges that his neighbors the Abts bored holes into his house and pumped in toxic odorless poisonous gas, just as he had experienced at various previous residences in New York. Moreover, all of this conduct is alleged to be part of a vast conspiracy with the government to force him to join the military. As in DeGrazia and the other cases cited above, these allegations are “wholly insubstantial” and subject to dismissal under the substantiality doctrine.
Courts often also dismiss frivolous complaints because they contravene Rule 8's basic requirement that a claim must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). See, e.g., Stephanatos v. Cohen, 236 Fed.Appx. 785, 787 (3d Cir. 2007) (150-page amended complaint was unwieldy and unintelligible).
Moreover, the Court can take judicial notice of previous lawsuits Plaintiff has filed. In Weir v. United States of America, No. 17-CV-7430 (E.D.N.Y. Feb. 28, 2018), Plaintiff's claims of a broad conspiracy by “military personnel and other federal agents” to interfere with his life, which included poisoning his food, were dismissed as “wholly incredible” and frivolous. Similarly, in Weir v. New York Funded Agencies & its Agents, 2017 WL 8777381, at *2 (S.D.N.Y. Dec. 11, 2017), the District Court dismissed Plaintiff's claims that “rogue military personnel” and government officials poisoned his food and sprayed toxic gas in this room as “fantastic” and noted that these allegations “rise to the level of the irrational, and there is no legal theory on which he can rely.” See also Weir v. Federally Funded Agencies/Entities & Its Agents, 2018 WL 9815969, at *2 (E.D.N.Y. Sept. 21, 2018) (dismissing “fantastic” claims that the defendants, inter alia, poisoned the food in his room and refrigerator, sprayed an odorless gas into his car, purposefully hit his car while he was driving in order to stage a car accident, placed toxic substances on his food at a fast food restaurant and stalked him); Weir v. City of New York, 2023 WL 3001136, at *1 (2d Cir. Apr. 19, 2023) (“Because we agree with the district court that Weir's first amended complaint-which alleged that the City used unnamed government agents to, for example, compromise Weir's cell and internet service, funnel toxic gas into his room and car, poison his food after grocery shopping, and bribe his employer to fire him-was factually frivolous, dismissal was proper and we need not reach the other grounds for the district court's decision.”).
Plaintiff repeatedly cites to allegations he asserted in these actions but fails to acknowledge that all of these cases have been dismissed on the merits.
A common theme runs through these actions. The alleged facts and claims about the conduct of various parties in other jurisdictions are strikingly similar to those alleged to have occurred here. Simply put, Plaintiff appears to believe that multiple individuals associated with the government have, over a number of years, engaged in vast conspiracies to harm him and that private individuals have conspired with government agents to cause him harm. These allegations consistently have been found to be frivolous and incredible. They are equally so here. Plaintiff's claims against the moving Defendants are irrational and rely on fantastic and unbelievable scenarios, and thus, are wholly unsubstantial and subject to dismissal. Therefore, all of the federal claims against the moving Defendants in Counts VIII through X and XIII through XXI should be dismissed with prejudice.
In addition, although Plaintiff purports to allege an FTCA claim against “all defendants” in Count XXI, the “only proper defendant in an FTCA suit is the United States itself.” Feaster v. Federal Bureau of Prisons, 366 Fed.Appx. 322, 323 (3d Cir. 2010).
E. Failure to State a Claim
Even if Plaintiff's claims could possibly survive this analysis, the moving Defendants are entitled to dismissal of all of the federal claims brought against them for other reasons. The Amended Complaint asserts that many of Plaintiff's civil rights claims against “Defendants” are brought under 42 U.S.C. § 1983, which only applies when a person has acted “under color of state law.” However, there are no state actors named as defendants in the Amended Complaint. The moving defendants are private individuals, medical providers, and a hospital. Therefore, as the moving Defendants correctly assert, they cannot be sued under § 1983 because they are not state actors. See West v. Atkins, 487 U.S. 42, 49 (1988) (“The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'”)
While Plaintiff may contend that these defendants are state actors (ECF No. 85 ¶ 6), this assertion is nothing more than a legal conclusion. He fails to allege any facts that would suggest that his neighbors or the private medical care providers he has sued are employed by the state or have authority by virtue of state law. Even if Plaintiff's allegations of a vast government conspiracy could be assumed to be true for purposes of this analysis, the Federal Defendants are likewise not state actors. See Davis v. Samuels, 962 F.3d 105, 115 (3d Cir. 2020) (“All of the defendants here, however, are alleged to be federal actors or to have acted under color of federal law, so the 1983 claim cannot stand.”) Thus, even assuming for the sake of argument that the moving Defendants had conspired with the Federal Defendants, Plaintiff has failed to state a claim under § 1983. As a result, Plaintiff's federal civil rights claims in Counts VIII through X and XIII through XXI, to the extent that they assert federal civil rights claimsagainst Defendants AHN, Meenihan, Islamova, William Abt and Cheryl Abt, must be dismissed with prejudice.
Counts XIII through XVII assert both federal civil rights claims and claims that purport to arise under the Pennsylvania Constitution.
Plaintiff also purports to raise civil rights claims in Counts XIII through XVII under the Pennsylvania constitution but “neither Pennsylvania statutory authority, nor appellate case law has authorized the award of monetary damages for a violation of the Pennsylvania Constitution.” Jones v. City of Philadelphia, 890 A.2d 1188, 1208 (Pa. Commw. 2006). As such, these claims against Defendants AHN, Meenihan, Islamova, William Abt and Cheryl Abt must be dismissed with prejudice.
In Counts XVIII, XIX and X, Plaintiff purports to allege conspiracy claims under Sections 1985(2), 1985(3) and 1986. However, Section 1985(2) relates to conspiracies to obstruct justice, intimidate parties, witnesses or jurors. It has no relevance to the alleged facts of this case. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); Rudolph v. Clifton Heights Police Dep't, 2008 WL 2669290, at *9 (E.D. Pa. July 7, 2008).
Section 1985(3) relates to conspiracies to deny individuals the equal protection of the laws. However, it requires sufficient facts from which the court could infer an agreement or understanding to violate Plaintiff's rights, which the Amended Complaint lacks. See Sanchez v. Coleman, 2014 WL 7392400, at *10 (W.D. Pa. Dec. 11, 2014) (prisoner's allegations of a conspiracy to deny him medical treatment and subject him to an unsafe environment were insufficient). Therefore, this claim should be dismissed.
“Liability under 42 U.S.C. § 1986 is predicated on knowledge of a violation of 42 U.S.C. § 1985.” Mannery v. Miller, 2007 WL 1395358, at *7 (W.D. Pa. May 9, 2007). See also Rogin v. Bensalem Twp., 616 F.2d 680, 696 (3d Cir. 1980). Because Plaintiff fails to state a claim under § 1985, he cannot state a claim under § 1986.
F. Other Bases for Jurisdiction
All of the remaining claims in Counts I through VII, XI, XII and XXII through XXX against the moving defendants are asserted under state law.As both Plaintiff and the moving Defendants are Pennsylvania citizens, there is no independent basis for the Court to assert subject matter jurisdiction over them. Pursuant to 28 U.S.C. § 1332(a)(1), “diversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978).
Plaintiff asserts a stalking claim in Count XXXI. This claim should also be dismissed because under Pennsylvania law, there is no civil claim for stalking. See Sullivan v. Borough of Hellertown, 2003 WL 21664848, at *1 (E.D. Pa. June 25, 2003). See also Simpson v. City of Coatesville, 2015 WL 7251546, at *5 (E.D. Pa. Nov. 17, 2015) (Pennsylvania criminal law against stalking and harassment did not provide for a private right of action or give rise to civil liability).
The Court would have supplemental jurisdiction over any well-pleaded Plaintiff's state law claims as they appear to arise from the same case or controversy as his federal civil rights claims. 28 U.S.C. § 1367(a). However, as provided in §1367(c), a district court may, in its discretion, decline to exercise jurisdiction if, inter alia, “the district court has dismissed all claims over which it has original jurisdiction.” § 1367(c)(3). Indeed, “where the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendent state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so.” Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966) (other citations omitted)).
No such consideration exists here. In addition to the fantastic nature of all of Plaintiff's claims, as discussed herein, retaining the sixteen state law claims asserted by Plaintiff would not promote judicial economy, convenience or fairness to the parties. In addition, Plaintiff's claims will not be time barred as long as he reasserts them in state court within 30 days of the dismissal of this action. 28 U.S.C. § 1367(d); see also Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000).
Accordingly, Plaintiff's state law claims in Counts I through VII and XXII through XXX should be dismissed without prejudice pursuant to § 1367(c)(3).
The moving Defendants also argue that the state law claims fail to allege the requisite elements of each of these claims, but the Court need not reach these arguments.
III. Conclusion
For the reasons explained herein, it is recommended that the Motion to Dismiss Plaintiff's Amended Complaint filed by Defendants Allegheny Health Network and Jessica Meenihan, PA (ECF No. 37) and joined by Defendants Anisa Islamova and William and Cheryl Abt be granted as follows:
1. All claims asserted against them in Counts VIII through X, XIII through XXI, and Count XXXI should be dismissed with prejudice.
2. The state law claims asserted in Counts I through VII, XI, XII, and XXII through XXX be dismissed without prejudice pursuant to 28 U.S.C. § 1367(c)(3).
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections by September 27, 2023. Any party opposing the objections shall file a response by October 11, 2023. Failure to file timely objections will waive the right of appeal.