Opinion
5:23-CV-00238-M-RN
08-22-2023
Sarah Ford, Plaintiff, v. The United States Government, et al., Defendants.
ORDER & MEMORANDUM & RECOMMENDATION
ROBERT T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE
Sarah Ford seeks to bring a litany of claims against the United States, the U.S. Secret Service, and the U.S. Army Soldier Support Center (an Army office on the Fort Liberty military installation). See Proposed Compl. at 2, D.E. 1. She also asks to proceed without paying the filing fee associated with bringing a civil lawsuit. See IFP Mot., D.E. 3. The court will not require her to pay the filing fee because she lacks the resources to do so. But the undersigned recommends that the court dismiss Ford's complaint.
I. Background
This case marks Ford's third attempt to sue the federal government for alleged torts and constitutional violations. According to Ford, these wrongs trace back to a Department of Defense satellite dish that has stalked her across the Southeast. Her last two lawsuits were dismissed for failure to state a claim and lack of subject-matter jurisdiction. See Judgment, Ford v. United States, No. 5:22-CV-00156-M (E.D. N.C. Dec. 20, 2022), D.E. 14; USCA Judgment, Ford Family v. U.S. Dep't of Def., No. 5:21-CV-00357-M (4th Cir. Feb. 23, 2023), D.E. 53 (upholding district court's dismissal of Ford's claims with prejudice) (hereinafter Fourth Circuit Judgment).
Ford now seeks to sue the United States again, but her proposed complaint is difficult to decipher. Although the pleading itself is only three pages long, it instructs the reader to examine an attached document entitled “Civil Claim Amendment[.]” Proposed Compl. at 3; see also Civil Claim Amendment, D.E. 1-1 through 1-3. The Civil Claim Amendment appears to be a longer version of a proposed amended complaint from one of Ford's previous cases. Compare Civil Claim Amendment at 1 (appearing to have been filed in Case No. 5:21-CV-357); with Exhibit Civil Claim Amendment, Ford Family v. U.S. Dep't of Def., No. 5:23-CV-00357-M (E.D. N.C. Nov. 11, 2021), D.E. 26-10.
In Ford's prior case, the court denied her motion to amend as futile and dismissed her complaint with prejudice the same day. See Order Denying Mot. Amend, Ford Family v. U.S. Dep't of Def., No. 5:21-CV-00357-M (E.D. N.C. Dec. 21, 2021), D.E. 35 (hereinafter Order Denying Mot. Amend); Order Granting Mot. Dismiss, Ford Family v. U.S. Dep't of Def., No. 5:21-CV-00357-M (E.D. N.C. Dec. 21, 2021), D.E. 36. In denying Ford's motion to amend, the court found that the allegations in her amended complaint “rise to the level of the irrational or the wholly incredible.” Order Denying Mot. Amend at 3 (quoting Denton v. Hernandez, 504 U.S. 25, 33 (1992)). The Fourth Circuit upheld the dismissal on appeal. See Fourth Circuit Judgment at 1.
The Civil Claim Amendment-which largely mirrors the proposed amended complaint that this court denied as futile-is rambling and disorganized. It consistently references documents that are not on this case's docket. See, e.g., Civil Claim Amendment at 6 (citing “violation reports” that Ford claims can be found at “Doc 4-6 #2”). As in her previous cases, Ford claims that she has suffered at the hands of the federal government because a Department of Defense satellite dish constantly surveils her. See, e.g., id. at 17, 21, 25. According to Ford, the satellite dish has followed her across state lines and influences her actions. See, e.g., id. at 17, 25 She also claims that federal agents-who never identify themselves-show up at her house, refuse to leave, and perpetrate acts of violence against her. See, e.g., id. at 11. The agents also allegedly cyberstalk Ford and steal her possessions. See, e.g., id. at 17-18, 33.
Ford brings a laundry list of claims against the government. See Proposed Compl. at 2. Construing her complaint liberally, the undersigned finds that she wishes to bring claims under:
• Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for the violation of her First, Fourth, Fifth, and Fourteenth Amendment rights;
• The Interstate Stalking Act;
• The Health Insurance Portability and Accountability Act;
• The Federal Tort Claims Act, for trespass, battery, assault, sexual abuse, theft, private nuisance, false imprisonment, cyberstalking, invasion of privacy, and intentional infliction of emotional distress; and
• The “Private Property Protection Act[.]”
Ford provides no citation for this law, but the undersigned assumes that she seeks to recover under the North Carolina Property Protection Act, N.C. Gen. Stat § 99A-2.
II. IFP Motion
Ford asks the court to allow her to proceed against Defendants without paying the required filing fee or other costs normally associated with a civil lawsuit (otherwise known as proceeding “in forma pauperis” or “IFP”). The court may grant her request if she submits an affidavit describing her assets and the court finds that she cannot pay the filing fee. 28 U.S.C. § 1915. In assessing a request to proceed IFP, the court should consider whether the plaintiff can pay the costs associated with litigation “and still be able to provide himself and his dependents with the necessities of life.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotation marks omitted).
The court has reviewed Ford's application and finds that she lacks the resources to pay the costs associated with this litigation. The court thus grants Ford's motion (D.E. 3) and allows her to proceed IFP.
III. Screening Under 28 U.S.C. § 1915
Along with determining whether Ford is entitled to IFP status, the court must also analyze the viability of the claims contained in her complaint. 28 U.S.C. § 1915(e). The court reviews a complaint to eliminate claims that unnecessarily impede judicial efficiency and the administration of justice. The court must dismiss any portion of the complaint it determines is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Id. § 1915(e)(2)(B).
The court may dismiss a complaint as frivolous because of either legal or factual shortcomings. Neitzke v. Williams, 490 U.S. 319, 325 (1989). “Legally frivolous claims are based on an ‘indisputably meritless legal theory' and include ‘claims of infringement of a legal interest which clearly does not exist.'” Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (quoting Neitzke, 490 U.S. at 327). A complaint is factually frivolous when its factual allegations are “fanciful, fantastic, and delusional.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).
A complaint fails to state a claim upon which relief may be granted if it does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Supreme Court has explained that “[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.” Id.
Ford's pro se status relaxes, but does not eliminate, the requirement that her complaint contain facially plausible claims. The court must liberally construe a pro se plaintiff's allegations, but it “cannot ignore a clear failure to allege facts” that set forth a cognizable claim. Johnson v. BAC Home Loans Servicing, LP, 867 F.Supp.2d 766, 776 (E.D. N.C. 2011).
The court may also dismiss a complaint if it seeks monetary relief from a defendant who is immunized from liability for monetary damages. This immunity can take any number of forms, including-but not limited to-immunity under the Eleventh Amendment, see Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001), or common-law doctrines such as judicial, legislative, and prosecutorial immunity, see Pierson v. Ray, 386 U.S. 547 (1967).
None of Ford's claims survive screening. She fails to state a claim under Bivens, and her claim under the Interstate Stalking Act seeks a civil remedy for the violation of a criminal law. Her HIPAA claim fails for a similar reason-that statute does not create a private right of action. And because Ford has not exhausted her administrative remedies, she cannot recover under the FTCA. Finally, the court should decline to exercise supplemental jurisdiction over Ford's statutory claim under the NCPPA.
A. Bivens
Ford first alleges that several unknown federal agents violated her constitutional rights by committing acts of violence against her, refusing to leave her property, interfering with her freedom of religion, and surveilling her. A party seeking monetary relief for constitutional violations by federal actors must pursue it under the Supreme Court's decision in Bivens. In that case, the Supreme Court recognized an implied right of action against federal officials for a violation of the Fourth Amendment. Bivens, 403 U.S. at 397. But plaintiffs may not sue federal agencies or the United States itself under Bivens. See FDIC v. Meyer, 510 U.S. 471, 486 (1994) (holding that Bivens does not apply to federal agencies); Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996) (“Any remedy under Bivens is against federal officials individually, not the federal government.”) (citation omitted). This is because Bivens did not abrogate the United States' sovereign immunity. Randall, 95 F.3d at 245.
Ford has not attempted to sue the individual officers who she alleges violated her rights. Instead, she filed suit against the United States, the Secret Service, and the U.S Army Soldier Support Center. But none of these Defendants are amenable to suit under Bivens, so the court should dismiss her constitutional claims against them.
B. Interstate Stalking Act
Ford also seeks to sue under the Interstate Stalking Act. This provision makes it illegal to use means of interstate commerce to stalk others. But criminal statutes “proscribe crimes; they do not, of themselves, create civil liability.” Kebort v. Stiehl, No. 5:17-CV-418-D, 2018 WL 2927762, at *3 (E.D. N.C. May 17, 2018); see also Cent. Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 190 (1994) (refusing to infer a private right of action from a “bare criminal statute”). While a federal prosecutor could bring charges against a defendant who violated a federal criminal law, Ford-a private citizen-may not. See McMillan v. Ratner Companies, C/A No. 3:19-1698-CMC-SVH, 2019 WL 3900204, at *2 (D.S.C. July 19, 2019), adopted by 2019 WL 3890841 (D.S.C. Aug. 19, 2019). Thus, the lack of any legally cognizable interest renders this claim frivolous. The district court should dismiss it.
C. Health Insurance Portability and Accountability Act
Ford next seeks to hold Defendants liable under HIPAA. Under that statute, a person who “knowingly . . . discloses individually identifiable health information to another person” without authorization may be fined or imprisoned. 42 U.S.C. § 1320d-6. But the Fourth Circuit has held that “HIPAA does not expressly allow for a private cause of action[.]” Payne v. Taslimi, 998 F.3d 648, 660 (4th Cir. 2021). Instead, it “delegates enforcement authority to the Secretary of the Department of Health and Human Services, reflecting Congress's intent to forgo creating a private remedy.” Id. (citations omitted). Thus, the court should dismiss Ford's HIPAA claim.
D. Federal Tort Claims Act
As in her prior lawsuits, Ford seeks to bring tort claims against Defendants under the FTCA. The FTCA represents a limited congressional waiver of sovereign immunity for injury or loss caused by the negligent or wrongful act of a government employee acting within the scope of his or her employment. Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001). It permits the United States to be held liable in tort in the same respect as a private person would be liable under the law of the place where the act occurred. 28 U.S.C § 1346(b).
The court has already explained to Ford why her FTCA claims against the federal government and its agencies are deficient. See First Mem. & Recommendation at 4-6, Ford v. United States, No. 5:22-CV-00156-M (E.D. N.C. May 4, 2022), D.E. 4; Second Mem. & Recommendation at 4-5, No. 5:22-CV-00156-M (E.D. N.C. Nov. 28, 2022), D.E. 12, adopted by Order, No. 5:22-CV-00156-M (E.D. N.C. Dec. 30, 2022), D.E. 13. At bottom, Ford may not sue federal agencies under the FTCA, see Holmes v. Eddy, 341 F.2d 477 (4th Cir. 1965), cert. denied, 382 U.S. 892 (1965), and nothing in her latest proposed complaint suggests she exhausted her administrative remedies before filing suit-a prerequisite to recovering under the Act, see 28 U.S.C. § 2675(a). Thus, as before, the court should dismiss Ford's FTCA claims.
E. North Carolina Property Protection Act
Finally, Ford alleges that Defendants violated the NCPPA. Under that law, “[a]ny person who intentionally gains access to the nonpublic areas of another's premises and engages in an act that exceeds the person's authority to enter those areas is liable to the owner or operator of the premises for any damages sustained.” N.C. Gen. Stat. § 99A-2. The court should not exercise jurisdiction over this claim.
Unlike their state counterparts, federal courts have jurisdiction only over a limited set of cases and controversies. They are “constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998).
In most civil cases, a court obtains subject matter jurisdiction in one of two ways. First, under “federal question jurisdiction,” a federal court will have jurisdiction to resolve a claim if it arises “under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Second, a federal court may have authority to hear a case through what is known as diversity jurisdiction. This type of jurisdiction exists if the amount at issue exceeds $75,000 and the parties to the case are citizens of different states. 28 U.S.C. § 1332. There must also be complete diversity between the parties, meaning that the plaintiff must be a citizen of a different state than each of the defendants. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806). And if a party is not a citizen of any state, the court lacks diversity jurisdiction. See, e.g., Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828 (1989).
Because Ford's NCPPA claim arises out of North Carolina law, the court may not invoke federal question jurisdiction. 28 U.S.C. § 1331. And it cannot exercise diversity jurisdiction, either-multiple courts have found that neither the federal government nor its agencies (like the U.S. Secret Service) are citizens of any state for jurisdictional purposes. See, e.g., Richardson v. Chevy Chase Bank, No. 1:07cv660 (LMB/BRP), 2007 WL 5125729, at *2 (E.D. Va. July 16, 2007) (“[T]he federal agency defendants are not citizens of any state and their presence as defendants defeat diversity jurisdiction.”) (citation omitted); Frey v. EPA, 270 F.3d 1129, 1136-37 (7th Cir. 2001) (“[T]he EPA, which is part of the federal government, is not a ‘citizen of a state,' and thus its presence destroys complete diversity.”) (citation omitted).
So long as a district court has original jurisdiction over a dispute, it may exercise supplemental jurisdiction over any state-law claims that are “part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). A district court, however, may decline to exercise supplemental jurisdiction over a case once it has dispensed with all the claims over which it had original jurisdiction. Id. § 1367(c)(3); Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995).
The undersigned has recommended that the court dismiss all claims that created this court's original jurisdiction over Ford's lawsuit. After considering the interests of judicial economy, fairness, federalism, and comity, the undersigned further recommends that the district court decline to exercise supplemental jurisdiction over her NCPPA claim-the claim should be dismissed.
This claim is also barred by sovereign immunity. “Individuals may not sue the United States or its agencies without their consent.” Carter v. Ervin, No. 0:14-CV-00865-TLW, 2014 U.S. Dist. LEXIS 75415, 2014 WL 2468351, at *4 (D.S.C. June 2, 2014) (citing FDIC v. Meyer, 510 U.S. 471, 484-86 (1994)). This rule also applies to agents of Defendants working in their official capacities as federal employees. Superior Fibre Prod., Inc. v. U.S. Dep't of the Treasury, 156 F.Supp.3d 54, 63 (D.D.C. 2016) (“As a general rule ... federal employees acting in their official capacities are protected from suit by the doctrine of sovereign immunity, unless the United States has expressly waived that immunity.”); Boron Oil Co. v. Downie, 873 F.2d 67, 71 (4th Cir. 1989) (“An action against a federal agency or official will be treated as an action against the sovereign if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the Government from acting, or compel it to act.”) (citation and internal quotation marks omitted). Ford does not allege that the federal government has waived its sovereign immunity here. So even if the court had subject-matter jurisdiction to hear her NCPPA claim, it would fail.
IV. Conclusion
For the reasons discussed above, the court grants Ford's motion to proceed IFP (D.E. 3). But the undersigned recommends that the court dismiss her complaint (D.E. 1).
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.