' Case 1:05-ci/-01856-RJL" Document 17 Filed 09/11/06 Page 1 of 8
`Case 1:05-cv-01856-RJL Document 17 Filed 09/11/06 Page 1 of 8
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`J uN1Tii;D ‘STATES DISTRICT COURT
`- FOR THE DISTRICT OF COLUMBIA
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`can Jackson
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`Plaintiff,
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`V.
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`) Civil Case No. 05cv1856 (RJL)
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`q
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`George W. Bush, et al.
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`Defendants.
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`MEMORANDUM OPINION
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`(September § , 2006) [#6]
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`PlaintiffCarl Jackson, proceedingpro sé, brings this suit against President George W.
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`'' ‘Bush; his deputy Chief of Staff and advisor, Karl Rove; former Attorney General of the
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`United States, John Ashcroft; “his current successor,” Alberto Gonzales; and I. Lewis Libby,
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`_ former Chief of Staff to Vice President Dick Cheney, alleging Various Violations of the
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`United States Constitution. Currently before the Court is a Motion to Dismiss by defendants
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`President Bush and Attorney General Alberto Gonzales.‘ -For the reasons set forth below,
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`the defendants’ Motion is GRANTED.
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`" -
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`3
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`A While plaintiff names President George W. Bush, Karl Rove, John Ashcroft, “his
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`‘ifcurrent successor,” and I. Lewis Libby as defendants in this case, the December 19, 2005 Motion to
`. _ I-Dismiss was filed only on behalfofdefendants President Bush and Attorney General Gonzales, who,
`=5 as successor to John Ashcroft, Was joined in his official capacity on April 24, 2006, pursuant to
`,_ Federal Rules of Civil Procedure 25(d). None of the other defendants have been personally served.
`Further, neither President Bush nor Attorney General Gonzales have been served in their individual
`capacities.
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`Case 1:05-cv-01856-RJL Document 17 Filed 09/11/06 Page 2 of 8
`Case 1:05—cv—01856—RJL Document 17 Filed 09/11/06 Page 2 of 8
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`BACKGROUND
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`On September 19, 2005, plaintiff filed the instant Complaint, later amended on
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`November 14, 2005, seeking money damages for alleged violations of his rights under the
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`First, Fourthf and Fourteenth Amendments to the United States Constitution. (Am. Compl.
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`1l 2.) Though the facts underlying his Complaint are less than clear, plaintiff appears to
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`advance a series of extraordinary allegations centering on an alleged conspiracy that all of
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`the defendants supposedly formed, in both their official and individual capacities,3 to aid
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`certain individuals seeking revenge against him.
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`(Id. W 8-9, 13.)
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`In particular, plaintiff
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`alleges that on March 12, 2003, defendants Lewis Libby, John Ashcroft, and Karl Rove
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`entered into a conspiracy under color of lawto aid “the vigilante citizens in making a
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`retaliatory strike against plaintiff based upon bad motive and bias towards plaintiff.” (Id. ‘ll
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`8.) This conspiracy allegedly led to a deliberate car crash on June 12, 2003 that killed
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`plaintiff s “loved-one,” Eleanor Roe Munzer.
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`(Id. fl 9.) The alleged role of defendants
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`Libby, Ashcroft, and Rove in the conspiracy was to remove “said vigilante fears of
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`prosecution for their unlawful acts.” (Id. 1] 8.)
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`Moreover, in plaintiff’ s second cause of action, plaintiff alleges that on January 21,
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`2004, in his State of the Union Address, “George W. Bush .
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`.
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`. signified his Presidential
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`As plaintiff seems to be alleging due process violations under the Fifth Amendment,
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`and makes no unlawful search or seizure claims that would fall under the Fourth Amendment, the
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`Court will presume that plaintiff intended to invoke the Fifth Amendment in his Amended
`Complaint. (See Am. Compl. W 1-2.)
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`Attorney General Gonzales Was joined only in his official capacity. See Supra note
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`1.
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`Case 1:05—cv—01856—RJL Document 1-7 Filed 09/11/06 Page 3 of 8
`Case 1:05-cv-01856-RJL Document 17 Filed 09/11/06 Page 3 of 8
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`.:i:_2i1i>13“rovaltoi.-th'e vigilante conduct.”
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`I l'3:) 6 Plaintiffialleniges that the approval was “under
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`the created_false illusion of being a purportedly Presidential response to a letter purportedly
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`I" Written by a 10-year old girl from Lincoln, Rhode Island.” (Id.) According to plaintiff, the
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`mother ofthe girl “has a close nexus family relationship to relative ofFlorida vigilantes with
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`_- ties within the Florida law enforcement community.” (Id.)
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`On December 19, 2.005, defendants President Bush and Attorney General Alberto
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`' Gonzales (hereinafter “defendants”) moved to dismiss plaintiff’ s Complaint in its entirety.
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`3 ‘Defendants maintain that plaintiff’ s Complaint is barred by the doctrines of sovereign
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`immunity, absolute immunity, and qualified immunity. (See generally Defs. ’ Mot Dismiss.)
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`‘For the following reasons, the Court agrees and, defendants’ Motion to Dismiss must
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`therefore be GRANTED.
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`'3' 1.
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`Standard ofReview
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`DISCUSSION
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`Defendants bring this Motion to Dismiss under Federal Rules of Civil Procedure
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`l2(b)(l) and l2(b)(6).“ In reviewing a motion to dismiss under Rule 12(b)(1) for lack of
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`_subject—rnatter jurisdiction, and Rule 12(b)(6) for failure to state a claim, the Court must
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`. "accept all well-pleaded allegations as true, construing them in the light most favorableto the
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`Defendants also bring their Motion pursuant to Federal Rule of Civil Procedure
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`l2(b)(5). Under Rule _l2(b)(_5), a claim may be dismissed due to the insufficiency of service of
`process. Fed. R. Civ. P. l2(b)(5). If dismissing the claim Without prejudice clue to insufficient
`service would lead to the refiling of a meritless claim, however, our Circuit has held that it is proper
`—- _to consider other means of dismissing the case. See Simpkins v. Dist. ofColumbia Gov ’z‘, 108 F.3d
`366, 369-70 (D.C. Cir. 1997).
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`Case 1:05-cv-01856-RJL Document 17 Filed 09/11/06 Page 4 of 8
`Case 1:O5—cv—O1856—RJL Document 17 Filed 09/11/06 Page 4 of 8
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`plaintiff. See Kalil v. Johanns, 407 F. Supp. 2d. 94, 96-97 (D.D.C. 2005); Menkes v. Dep't
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`ofHomeland Sec., 402 F. Supp. 2d 204, 207 (D.D.C. 2005). Moreover, consistent with the
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`leniency-affordedpro se plaintiffs, the Court must make a concerted effort to discern a cause
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`of action from the record presented if an action is in fact discernable. See Haines v. Kerner,
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`404 U.S. 519, 520 (1972); Gee 12. District ofColumbia, No. 04-1797, 2005 U.S. Dist. LEXIS
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`17950, at *2 (D.D.C. Aug. 22, 2005).
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`While the liberal rules of notice pleading mandate generosity in interpreting a
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`complaint, the Court must be mindful that “generosity is not fantasy.” Slade 12. Hampton Rds.
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`Reg 7 Jail, 407 F.3d 243, 253 (4th Cir. 2005). Thus, when defendants who are sued in their
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`official capacities raise the doctrine of sovereign immunity as a bar to claims brought against
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`them, a plaintiff must overcome the defense of sovereign immunity in order to establish the
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`jurisdiction necessary to survive a Rule 12(b)(1) motion to dismiss. See Trt-State Hosp.
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`Supply Corp. v. United States, 341 F.3d 571, 575 (D.C. Cir. 2003).
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`Similarly, when a plaintiff sues a government agent in his/her individual capacity and
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`the defenses of absolute and qualified. immunity are raised, that plaintiff must overcome
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`those defenses in order to survive a Rule 12(b)(6) motion to dismiss. See Olamjzi v. District
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`ofColumbia, 416 F. Supp. 2d 43, 64 (D.D.C. 2006); Gee, 2005 U.S. Dist. LEXIS 17950, at
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`*7-9. While the Court is not confined to the pleadings and may consider outside matters
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`when deciding questions of jurisdiction under Rule 12(b)(1), the Court’s review in the
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`12(b)(6) context is limited to the pleadings alone. See Kalil, 407 F. Supp. 2d at 96-97.
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`._Cas_e'1:05—cv_—01856—RJL Document 17 Filed 09/11/06 Page 5 of 8 t
`Case 1:05-cv-01856-RJL Document 17 Filed 09/11/06 Page 5 of 8
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`‘For the following reasons, plaintiffinthis case fails to overcome defendants’ Motion
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`i_
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`to Dismiss under both Rule 12(b)(1) and Rule 12(b)(6).
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`_
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`_. II.
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`The Defendants ’ Sovereign Immunity Defense
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`The doctrine of sovereign immunity bars those suits against the United States that are
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`_ not specifically waivedby statute. See United States v. Sherwood, 312 U.S. 584, 586 (1941);
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`Council on Am. Islamic Rels., Inc. v. Ballenger, 366 F. Supp. 2d 28, 32 (D.D.C. 2005).
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`' Accordingly, claims against a government agent in his/her official capacity are barred by the
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`'.. "doctrine of sovereign immunity unless the government specifically waives the immunity, or
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`f"
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`I" ‘the actions ofthe govemment agent fall within an exception to the immunity rule. See Clark
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`3 v. Library of Cong, 750 F.2d 89, 103-04 (D.C. Cir. 1984) (holding that the doctrine of
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`sovereign immunity barred a claim for money damages against the Librarian of Congress,
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`I
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`in his official capacity, because immunity had not been Waived and the exceptions to
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`. immunity did not apply).
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`Here, plaintiff sues President ‘Bush and Attorney General Gonzales in their official
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`capacities under the First, Fourth,5 and Fourteenth Amendments to the United States
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`Constitution. (Am. Compl. 11 2.) Our Circuit has found that Congress has not Waived
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`- immunity for suits seeking monetary damages that arise under the Constitution. See Clark,
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`_750 F.2d at 102-03. In fact, as noted in Clark-, possible exceptions to sovereign immunity
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`arise only when a plaintiff seeks non-monetary relief. See id. at 104. Accordingly, because
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`See supra note 2.
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`Case 1:05-cv-01856-RJL Document 17 Filed 09/11/06 Page 6 of 8
`Case 1:05—cv—01856—RJL Document 17 Filed 09/11/06 Page 6 of 8
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`plaintiff’ s Complaint seeks relief only in the form ofmonetary damages, his claims against
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`these defendants in their official capacities must be and hereby are dismissed.
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`Ill.
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`The Defendants ’ Absolute and Qualified Immunity Defenses
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`Pursuant to Bivens v. Six Unknown Named Agents ofFed. Bureau ofNarcotics, 403
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`U.S.. 3 88 (1971),6 a plaintiff is permitted to bring a suit for damages against a federal official
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`in his/her individual capacity. See Christopher v. Izlarburjy, 536 U.S. 403, 408 (2002). Such
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`a suit, however, is subject to the defense_ of absolute immunity for claims against the
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`President, and the defense of qualified immunity for claims against all other government
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`officials. See Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). Thus, plaintiff must
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`overcome these defenses in order to establish that he has stated a claim upon which relief can
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`by granted by this Court. For the following reasons, plaintiff has failed to do so here as to
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`both the President and Attorney General Gonzales.
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`A.
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`Absolute Immunity
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`As referenced above,
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`the doctrine of absolute immunity serves to bar_—
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`absolutely—suits against the President of the United States, in his individual capacity,
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`Whenever he is acting within the scope of his official authority. See Nixon v. Fitzgerald, 457
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`U.S. 731, 756 (1982) (recognizing “absolute Presidential immunity from damages liability
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`for acts within the ‘ outer perimeter’ ofhis official responsibility”); see also Clinton 12. Jones,
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`In Bivens, the Supreme Court recognized limited situations in which plaintiff could
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`bring damagesclaims against federal officials who abuse their constitutional authority. 403 U.S. 3 88
`(1971). See also Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66-67 (2001) (explaining the Bivens
`holding). Thus, though plaintiffbrings this suit under 42 U.S.C. § 1983, it is presumed that plaintiff
`intended to allege a Bivens claim against the defendant federal officials.
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`Case 1:05-cv-01856-RJL Document 17 Filed 09/11/06 Page 7 of 8
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`520 U.S. 681, 694 (1997). Since plaintiffbrings this suit against President Bush for actions
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`he allegedly took “within the scope ofhis lawful authority,” (Am. Compl. 11 4), the President
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`has absolute immunity from this lawsuit in his individual capacity.7
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`B.
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`Qualified Immunity
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`Similarly, presidential aides, Members of the Cabinet, and other federal executive
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`officials are entitled to qualified immunity when exercising their discretion in the
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`performance of their duties. Harlow, 457 US. at 807. Accordingly, only in cases where an
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`official violates “clearly established statutory or constitutional rights _of which a reasonable
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`person would have known,” can he be denied immunity.
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`Id. at 818. Here, defendants
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`Ashcroft, Rove, and Libby are shielded from liability by qualified immunityg because any
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`connection plaintiff has alleged between defendants and the supposed conspiracy in Tampa
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`Although plaintiffhas yet to properly serve President Bush in his individual capacity
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`with the Complaint and Summons in this case, see supra note 1, the Court nonetheless addresses the
`application of the doctrine of absolute immunity to plaintiff’ s Complaint should he eventually seek
`leave of Court to do so. Our Circuit has found that if dismissing a claim for insufficient service of
`process would lead to the refiling of a meritless claim, it is proper for a District Court to consider
`other means of dismissing_ that claim. See Simpkins v. Dist. ofColumbia Gov ’1.‘, 108 F.3d 366, 369-
`70 (D.C. Cir. 1997). Thus, because this Court finds that the doctrine of absolute immunity, as
`discussed above, serves to bar plaintiff’ s action against President Bush in his individual capacity,
`it would be futile for plaintiff to attempt to effect proper service on the President.
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`Because President Bush is protected from suit in his official and individual capacities
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`by the doctrines of sovereign and absolute immunity, respectively, and because Attorney General
`Gonzales was added only in his official capacity as a defendant in this case, see Fed. R. Civ. P. 25 (d),
`a qualified immunity defense primarily serves to immunize un-served defendants Ashcroft, Rove,
`and Libby. As stated above, however, defendants Ashcroft, Rove, and Libby have yet to be properly
`served in this matter and thus, have not formally moved to dismiss plaintiff’ S Complaint against
`them. See supra note 1. Nonetheless, this Court finds that the doctrine of qualified immunity, as
`discussed above, serves to bar plaintiff’ s action against defendants Ashcroft, Rove, and Libby in their
`individual capacities and need not afford plaintiff any further opportunity to properly serve these
`defendants. See supra note 7; Simpkins, 108 F.3d at 369-70.
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`case‘1:05-cv-o185'6LRJL' Document 17_ Filed 09/11/06 Page 8of8
`Case 1:05-cv-01856-RJL Document 17 Filed 09/11/06 Page 8 of 8
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`fanciful atbes't.9 Moreover, applying. Harlow, it is notireasonable that defendants would
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`have known ofthe constitutional and statutory rights plaintiff alleges they violated. Finally,
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`the mere allegation by plaintiff that these current and former government officials entered
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`into the supposed conspiracy because of “bad motive and bias towards plaintiff” (Am.
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`: .Compl. 1l 8) is not enough to survive a defense of qualified immunity. See Harlow, 457 U.S.
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`at 8 1 8.
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`CONCLUSION
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`Thus, for all of the foregoing reasons, the Court GRANTS defendants’ Motion to
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`‘Dismiss with prejudice. An appropriate Order will issue with this Memorandum Opinion.
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` RICHARD J. L if
`United States Di
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`Judge
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`In his Amended Complaint plaintiff fails to allege any discernable unconstitutional
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`-conduct by defendants. Though he does go into far more detail in both his original Complaint and
`.- in his Opposition to Defendant’s Motion to Dismiss than in his Amended Complaint, those stories
`iaredramatically different from each other and do not allege any reasonable connection between any
`of the defendants and the alleged conspiracy in Florida.
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`8