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Paolone v. Mueller

August 9, 2006

MICHAEL LOUIS PAOLONE, PLAINTIFF,
v.
ROBERT MUELLER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff, proceeding pro se, brings this action pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971),against Robert Mueller, Director, Federal Bureau of Investigation ("FBI"), Timothy Healy, a Special Agent of the FBI, and unknown agents of the FBI's Office of Professional Responsibility ("OPR"). Defendants move for dismissal of the complaint for lack of subject matter jurisdiction, insufficiency of process, and failure to state a claim upon which relief can be granted. In the alternative, defendants move to transfer the case to the District of Utah. Because defendants have not been properly served and are entitled to immunity from plaintiff's claims, the case will be dismissed.

I. BACKGROUND

Plaintiff is an inmate at the Central Utah Correctional Facility in Gunnison, Utah.

He was convicted by a jury verdict in the Second Judicial District Court of Davis County, Utah. Complaint ("Compl.") ¶ 8.Plaintiff alleges that during jury selection defendant Healy appeared in the courtroom for the purpose of excusing his wife from jury duty. Id. ¶ 15. The judge excused Special Agent Healy's wife and instead placed Healy in the jury pool. Id. Plaintiff alleges that this action was manipulated by Healy and the trial judge without disclosure to plaintiff. Id. Special Agent Healy was ultimately selected as the jury foreperson. Id. ¶ 9.

Plaintiff claims that at the time of his trial, the FBI field offices in Salt Lake City, Utah and Cleveland, Ohio had investigations pending against him. Id. ¶¶ 16, 17. In July 2003, plaintiff was informed by the FBI's Provo, Utah office that Healy's participation in the trial was under investigation, and that plaintiff was requested to appear at FBI Headquarters ("FBIHQ") in Washington, DC for an interview. Id. ¶ 10.*fn1 In response to plaintiff's inquiry, FBIHQ acknowledged that the OPR was investigating the circumstances that led to Healy's placement on the jury. Id. ¶ 12. Following its investigation, the OPR concluded that plaintiff's allegations were without merit because Healy was never part of an investigation of plaintiff, Healy's employment as an FBI agent was disclosed in open court, and plaintiff's counsel made a conscious tactical decision not to challenge Healy's presence on the jury. Id. ¶ 14 & Attachment 1.

According to plaintiff, he then sent a letter to FBIHQ requesting the OPR file on the investigation for the purpose of pursuing an ineffective assistance of counsel claim. Id. ¶ 20. Plaintiff's request was denied. Id. He alleges that employees of the OPR and FBI Director Mueller were fully aware of Healy's conduct, but did not disclose that information to plaintiff. Id. ¶ 18. As a result of defendants' conduct, plaintiff claims that he was deprived of his constitutional right to a fair trial. Id. ¶¶ 25-28.

II. STANDARD OF REVIEW

Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, defendants move to dismiss for lack of subject matter jurisdiction and because plaintiff has failed to state a claim upon which relief can be granted. A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C.Cir. 2003) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)).

A court should not dismiss a complaint for failure to state a claim unless the defendant can show beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Warren v. Dist. of Columbia, 353 F.3d 36, 37 (D.C.Cir. 2004); Kingman Park, 348 F.3d at 1040. Thus, in resolving a Rule 12(b)(1) or 12(b)(6) motion, the court must treat the complaint's factual allegations as true and draw all reasonable inferences therefrom in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 67 (D.C.Cir. 2003), cert. denied, 540 U.S. 1149 (2004); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003), cert. denied, 540 U.S. 1218 (2004); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Warren, 353 F.3d at 39; Browning, 292 F.3d at 242. In addition, the plaintiff has the burden of proving subject matter jurisdiction by a preponderance of the evidence. Felter v. Norton, 412 F. Supp. 2d 118, 122 (D.D.C. 2006) (citation and quotation omitted).

III. DISCUSSION

Insufficiency of Process

Plaintiff filed this action on November 29, 2005. Because he is proceeding in forma pauperis, service of process was performed by the United States Marshal. See 28 U.S.C. § 1915(d). The United States Attorney for the District of Columbia and the Attorney General of the United States were properly served a copy of the summons and complaint. The summons for defendant Mueller was served on the Assistant General Counsel at FBIHQ. Service on defendant Healy was unsuccessful due to an insufficient address.

The complaint does not include the personal addresses of the defendants. Pursuant to LCvR 5.1(e), the Court ordered plaintiff to file the addresses to enable the United States Marshal to effect service. Plaintiff was advised that failure to do so could result in dismissal of the case. In response to the order, plaintiff stated that the only address for defendants that he knew of was FBIHQ in Washington, D.C. Having been unable to obtain defendants' residential addresses for the purpose of effecting service, ...


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