Opinion
3:23-CV-0558-M-BH
09-27-2023
NAKISHA JACKSON, Plaintiff, v. CHRISTOPHER WRAY, et al., Defendants.
Referred to U.S. Magistrate Judge
By Special Order 3-251, this pro se case has been automatically referred for full case management.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE
Before the Court for recommendation are Defendant Charter Communications, Inc.'s Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) , filed May 9, 2023 (doc. 9), and Defendant Apple Inc.'s Motion to Dismiss, filed May 12, 2023 (doc. 13). Based on the relevant filings and applicable law, the motions should be GRANTED.
I. BACKGROUND
NaKisha Jackson (Plaintiff) sues Apple, Inc. and Charter Communications, Inc. (Defendants), as well as the Director of the Federal Bureau of Investigation (Director) and several unknown federal agents (Agents) for violation of her constitutional rights by their alleged involvement in a scheme, orchestrated by Director, to stalk and spy on her and to access her various electronic devices and associated accounts without her permission. (See generally doc. 3.)
Plaintiff's form complaint, filed on March 14, 2023, alleges that beginning sometime before February 7, 2023, Director “[d]enied First amendment-right to free speech and government redress of grievances[,]” violated the Fourth Amendment by “illegally order[ing Plaintiff's] phone cloned, tapped and [her] global entry card confiscated[,]” and violated the Fourteenth Amendment by “order[ing] illegal stalking with no probable cause or jurisdiction internationally or domestically.” (doc. 3 at 4.) Director, “[p]retending to have federal authority, ... enlisted the assistance of Apple to clone [her] phone and hack/clone/breach passwords of [her] phone and the phones of [her] contacts.” (Id.) One of Defendants rerouted her cable and internet services to addresses that she did not authorize to receive such services. (Id.) Defendants altered messages that she sent, blocked and recorded phone calls and faxes that she transmitted, and sent sensitive information to various individuals to allow them to stalk her. (Id.)
Plaintiff claims that she notified Defendants that Director and Agents were acting outside of their legal authority by enlisting Defendants in their scheme to spy on her, and that Director and Agents “were now rogue in their government roles.” (Id.) At some point, “illegal computers” were connected to her Apple user account without her authorization, and she has reported these illegal computers to the Department of Justice. (Id.) As a result, on February 7, 2023, Plaintiff changed her Apple account password and deleted all unknown devices from her account. (Id.) On March 7, 2023, she discovered that the cloned version of her phone had been added to her Apple account. (Id.) She knew this device was added without her permission because it did not receive the verification codes that are sent to users' devices to allow users to log in and make changes to their account; her phone, which she added to her Apple account herself, did receive these verification codes. (Id.) In an attempt to safeguard her account information, Plaintiff changed the name and date of birth listed on her account, but she did not change the email address associated with it. (Id.) Similar issues have allegedly occurred at least twice before. (Id.)
Plaintiff seeks a damages of thirty billion dollars. (Id. at 5.)
On September 11, 2023, it was recommended that Plaintiff's claims against Director and Agents be dismissed without prejudice for failure to serve them in compliance with Fed.R.Civ.P. 4(m). (doc 29.) On September 25, 2023, that recommendation was adopted, and Plaintiff's claims against the government defendants were dismissed. (doc. 30.
II. MOTION TO DISMISS
Defendants move to dismiss Plaintiff's complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. (doc. 10 at 1; doc. 14 at 1.)
The arguments made in the two motions are similar, and the grounds on which dismissal is recommended are raised by both Defendants in their respective motions. (Compare doc. 10 with doc. 14.)
A. Legal Standard
Rule 12(b)(6) allows motions to dismiss for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Under the 12(b)(6) standard, a court cannot look beyond the face of the pleadings. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); see also Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229 (2000). It is well-established that “pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers.” Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir. 1981). Nonetheless, regardless of whether the plaintiff is proceeding pro se or is represented by counsel, pleadings must show specific, well-pleaded facts, not mere conclusory allegations to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). The court must accept those well-pleaded facts as true and view them in the light most favorable to the plaintiff. Baker, 75 F.3d at 196.
“[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the alleged] facts is improbable, and ‘that a recovery is very remote and unlikely.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citation omitted). Nevertheless, a plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555; accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasizing that “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions”). The alleged facts must “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In short, a complaint fails to state a claim upon which relief may be granted when it fails to plead “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.
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, 556 U.S. at 678 (citations omitted). When plaintiffs “have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Twombly, 550 U.S. at 570; accord Iqbal, 556 U.S. at 678.
B. Bivens
Plaintiff sues Defendants for allegedly aiding Director and Agents in violating her First, Fourth, and Fourteenth Amendment rights. (doc. 3 at 4.) Her claims arise under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the Supreme Court held that the violation of a person's constitutional rights by a federal official may give rise to an action for monetary damages in federal court. Id. at 394.
The Supreme Court has reiterated that “Bivens was the product of an ‘ancien regime' that freely implied rights of action.” Oliva v. Nivar, 973 F.3d 438, 442 (5th Cir. 2020) (quoting Ziglar v. Abbasi, 582 U.S. 120, 131 (2017)). Bivens claims are now generally relegated to the only three circumstances in which the Supreme Court allowed a private right of action against federal officers for constitutional violations: (1) “manacling the plaintiff in front of his family in his home and stripsearching him in violation of the Fourth Amendment,” see Bivens, 403 U.S. at 389-90; (2) “discrimination on the basis of sex by a congressman against a staff person in violation of the Fifth Amendment,” see Davis v. Passman, 442 U.S. 228 (1979); and (3) “failure to provide medical attention to an asthmatic prisoner in federal custody in violation of the Eighth Amendment,” see Carlson v. Green,446 U.S. 14 (1980). Oliva, 973 F.3d at 442; see also Butler v. S. Porter, 999 F.3d 287, 293 (5th Cir. 2021) (finding that a First Amendment retaliation claim arose in a new context and emphasizing that “in recent decades, the Supreme Court has ‘consistently refused to extend Bivens to any new context'”) (emphasis in original) (citation omitted) (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001))).
To decide whether Bivens allows a cause of action, courts must consider: (1) whether a case involves a “new context” that is distinct from these cases, and (2) whether any “special factors” preclude extending Bivens to this “new context.” Maria S. as Next Friend for E.H.F. v. Garza, 912 F.3d 778, 784 (5th Cir. 2019) (citation omitted). The Supreme Court has recently emphasized that its “understanding of a ‘new context' is broad.” Hernandez v. Mesa, 589 U.S. -, 140 S.Ct. 735, 743, 206 L.Ed.2d 29 (2020). Virtually anything other than the circumstances presented in Bivens, Davis, or Carlson is a “new context” precluding the existence of a Bivens remedy if special factors counsel against extension. Oliva, 973 F.3d at 442 (citing Abbasi, 582 U.S. at 149). The Supreme Court has also made clear that extending Bivens to new contexts is now a “‘disfavored' judicial activity.” Abbasi, 582 U.S. at 135 (citation omitted).
1. Conspiracy
Plaintiff generally contends that “[Director] enlisted [Defendants] to clone [her] phone and hack/clone/breach passwords of [her] phone” and otherwise ordered them to engage in the conduct that violated her constitutional rights. (doc. 3 at 4.) Her allegations may be liberally construed as a claim that Defendants conspired with federal actors to violate her constitutional rights.
As discussed, the Supreme Court has cautioned against expanding Bivens to new contexts beyond the three circumstances in which it has previously recognized a private right of action for the violation of constitutional rights by federal officials. Abbasi, 582 U.S. at 149. After Abbasi, a number of courts have concluded that a conspiracy claim presents a new context to which Bivens does not apply. See, e.g., Brunson v. Nichols, No. 1:14-CV-2467, 2018 WL 7286410, at *4 (W.D. La. Dec. 7, 2018), adopted by 2019 WL 545479 (W.D. La. Feb. 11, 2019); Robinson v. Sauls, 521 F.Supp.3d 1282, 1301 (N.D.Ga. 2021); Hari v. Smith, No. 20-CV-1455 (ECT/TNL), 2022 WL 1122940, at *17 (D. Minn. Jan. 31, 2022), adopted by 2022 WL 612100 (D. Minn. Mar. 2, 2022); Alegre v. United States, No. 3:16-CV-2442-AJB-KSC, 2019 WL 3322382, at *5 (S.D. Cal. July 24, 2019); Fulks v. Watson, No. 2:19-CV-0501-JPH-MJD, 2021 WL 1225922, at *5 (S.D. Ind. Mar. 31, 2021); Cargill v. United States, No. 2:21-CV-1186-KOB-GMB, 2022 WL 17171940, at *3 (N.D. Ala. Oct. 21, 2022), adopted by 2022 WL 17169616 (N.D. Ala. Nov. 21, 2022). Other courts have affirmed pre-Abbasi jurisprudence recognizing a conspiracy claim arising under Bivens. See, e.g., Jacobs v. Alam, 2018 WL 488954, at *3 (E.D. Mich. Jan. 19, 2018), aff'd by 915 F.3d 1028, 1039 (6th Cir. 2019) (endorsing continued recognition of a conspiracy claim under Bivens in the search and seizure context based on the Supreme Court's cautioning “against expanding the reach of Bivens, not calling into question its existing scope” (emphasis in original)).
This issue need not be resolved in this case, however, because even assuming arguendo that conspiracy is a cognizable claim under Bivens, Plaintiff has failed to state a plausible conspiracy claim. See id.; Robinson, 521 F.Supp.3d at 1301; Skinner v. Lee, No. 5:19-01116 DMG (ADS), 2021 WL 6617390, at *7 (C.D. Cal. May 20, 2021). To state a claim for conspiracy under Bivens, a plaintiff “must establish the existence of a conspiracy” as well as a violation of a constitutional right in furtherance of the conspiracy. Thompson v. Johnson, 348 Fed.Appx. 919, 922 (5th Cir. 2009) (citing Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995)). “To establish a cause of action based on conspiracy a plaintiff must show that the defendants agreed to commit an illegal act.” Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982).
Here, beyond her conclusory statements, Plaintiff does not allege any facts to show the existence of a conspiracy among any of the defendants. See Thompson, 348 Fed.Appx. at 922; Cardenas v. Young, 655 Fed.Appx. 183, 186-87 (5th Cir. 2016) (per curiam) (citing McAfee v. 5th Cir. Judges, 884 F.2d 221, 222 (5th Cir. 1989) (noting that the plaintiff did not allege that the defendants expressly made an agreement to violate his constitutional rights, and finding conclusory allegations insufficient to state a viable conspiracy claim under Bivens)); Richie v. Wharton Cnty. Sheriff Dep't Star Team, 513 Fed.Appx. 382, 385 (5th Cir. 2013) (per curiam) (citing Rodriguez v. Neeley, 169 F.3d 220, 222 (5th Cir. 1999) (noting the failure to allege facts suggesting an agreement to commit illegal acts)). Because Plaintiff has failed to sufficiently plead facts to support a Bivens conspiracy claim, it should be dismissed.
To the extent Plaintiff's conspiracy claim may be construed as arising under 42 U.S.C. § 1985(3), it fails as a result of the same pleading deficiencies that render her conspiracy claim under Bivens unsuccessful. See Etemad v. Underwood Perkins L. Off., No. 3:14-CV-0669-B, 2014 WL 1724745, at *1-2 (N.D. Tex. May 1, 2014).
2. Private Entities
Plaintiff's complaint may also be liberally construed as asserting a Bivens claim against the Defendants directly. (doc. 3 at 4.)
The Supreme Court has held that the scope of Bivens cannot be augmented to include claims brought against private entities acting under color of federal law. Malesko, 534 U.S. at 71. In Malesko, it noted that it has “consistently refused to extend Bivens liability to any new context or new category of defendants.” Id. at 68. Additionally, “[t]he purpose of Bivens is to deter individual federal officers from committing constitutional violations.” Id. at 70 (emphasis added). “[I]nferring a constitutional tort remedy against a private entity ... is therefore foreclosed.” Id. at 71. In other words, “there is no implied private right of action, pursuant to Bivens, for damages against private entities . that engage in alleged constitutional deprivations while acting under color of federal law.” Marsaw v. Thompson, 133 Fed.Appx. 946, 948 (5th Cir. 2005) (citing Malesko, 534 U.S. at 71).
Here, Defendants are both private corporations. (See doc. 3 at 4.) Even if Plaintiff adequately alleged the other elements of a Bivens claim, the Supreme Court has held that no Bivens action may be brought against private corporations. See Malesko, 534 U.S. at 71. Bivens does not apply, and any direct Bivens claims against Defendants should be dismissed.
C. Alternative Theories of Recovery
Defendants also move to dismiss Plaintiff's complaint on the ground that she has failed to allege any facts that would support any other claim for relief outside of her Bivens claims. (doc. 10 at 8; doc. 14 at 5.)
A pro se plaintiff's pleadings must be liberally construed, and ambiguity must be viewed in the pro se plaintiff's favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, “[e]ven a liberally construed pro se civil rights complaint . must set forth facts giving rise to a claim on which relief may be granted.” Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993). Courts are not, however, “at liberty to create a cause of action where there is none.” Cledera v. United States, 834 Fed.Appx. 969, 972 (5th Cir. 2021) (per curiam) (citing Hughes v. Rowe, 449 U.S. 5, 9-10 (1980)).
Here, Plaintiff's complaint does not expressly allege any cause of action, aside from her Bivens claims, against Defendants. Only a handful of factual allegations contained in the complaint pertain to them. (See doc. 3 at 4.) The bulk of Plaintiff's allegations are bare legal conclusions with no factual content to support them. (Id.) Moreover, Plaintiff's claims against Defendants based on an alleged conspiracy with Director and Agents to physically stalk her and access her devices and digital accounts without authorization are “fanciful, fantastic, or delusional.” Starrett v. Lockeed Martin Corp., No. 3:17-CV-0988-D-BT, 2018 WL 1399177, at *3 (N.D. Tex. Mar. 9, 2018), adopted by 2018 WL 1383398 (N.D. Tex. Mar. 19, 2018); see Neitzke v. Williams, 490 U.S. 319, 325, 327-28 (1989) (a claim is frivolous if it lacks either an arguable basis in law because it is “based on an indisputably meritless legal theory” or an arguable basis in fact because it describes “fantastic or delusional scenarios”); see also Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (a claim is “factually frivolous only if the facts alleged are clearly baseless, a category encompassing allegations that are fanciful, fantastic, and delusional”). Plaintiff has not presented sufficient factual content to state a plausible claim for relief on any basis other than Bivens.
III. OPPORTUNITY TO AMEND
Notwithstanding their failure to plead sufficient facts, the Fifth Circuit is inclined to give pro se plaintiffs several opportunities to state a claim upon which relief can be granted. See Scott v. Byrnes, No. 3:07-CV-1975-D, 2008 WL 398314, at *1 (N.D. Tex. Feb. 13, 2008); Sims v. Tester, No. 3:00-CV-0863-D, 2001 WL 627600, at *2 (N.D. Tex. Feb. 13, 2001). Courts therefore typically allow pro se plaintiffs to amend their complaints when the action is to be dismissed pursuant to a court order. See Robinette v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 3:96-CV-2923-D, 2004 WL 789870, at *2 (N.D. Tex. Apr. 12, 2004); Sims, 2001 WL 627600, at *2. A pro se plaintiff may also obtain leave to amend her complaint in response to a recommended dismissal. See Swanson v. Aegis Commc'ns Grp., Inc., No. 3:09-CV-0041-D, 2010 WL 26459, at *1 (N.D. Tex. Jan. 5, 2010); Scott, 2008 WL 398314, at *1. Additionally, a court may appropriately dismiss an action with prejudice without giving an opportunity to amend if it finds that the plaintiff has alleged his or her best case. Jones v. Greninger, 188 F.3d 322, 327 (5th Cir. 1999). Likewise, an opportunity to replead is “unnecessary where the facts alleged are ‘fantastic or delusional scenarios' or where the legal theory upon which a complaint relies is ‘indisputably meritless.'” Gregory v. McKennon, 430 Fed.Appx. 306, at *1 (5th Cir. 2011) (quoting Eason v. Thaler, 14 F.3d 8, 9 n.5 (5th Cir. 1994)).
Here, Plaintiff has alleged no facts to support a conspiracy claim or a plausible claim for relief based on any other cause of action. Plaintiff's direct Bivens claim against Defendants is “indisputably meritless” because they are private entities to which Bivens does not apply. Gregory, 430 F. App'x, at *1. Moreover, the facts that Plaintiff does provide are clearly fantastical and fanciful and do not support any reasonable inference that Defendants violated the law. Plaintiff appears to have alleged her best case against them, and no further opportunity to amend her claims against them is warranted.
IV. RECOMMENDATION
Defendants' motions to dismiss should be GRANTED and Plaintiff's claims against them should be DISMISSED with prejudice.
SO RECOMMENDED.