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Coleman v. Unknown Central Intelligence Agents

August 28, 2006


The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge


In this action filed under 42 U.S.C. § 1983, plaintiff alleges that defendants "persecuted, demonized, incarcerated, [and] subjected to physical and mental abuse" him and other individuals who are not parties to this action because of their efforts to uncover "the true role of the Central Intelligence Agency in actions that lead [sic] to a terrorist bomb to be placed aboard Pan American flight 103, December 21, 1988." Complaint at 1. The federal defendants*fn1 have moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1), (b)(2), (b)(3), (b)(5) and (b)(6), and have opposed plaintiff's pending motions to amend the complaint. Plaintiff has opposed the motion to dismiss and has replied to defendants' opposition to his motions to amend.

Upon consideration of the parties' submissions and the entire record, the Court will grant defendants' motion to dismiss, deny plaintiff's motions to amend the complaint, and dismiss the case.


Plaintiff claims to be a journalist, author and "for a short time, a contract Agent with the U.S. Defense Intelligence Agency." Compl't at 2. He alleges that after revealing in a film and a book "a U.S. intelligence link to the cause of the [December 1988] bombing of Pan Am flight 103," he was "brutalized and abused, moved about the country 16 times while illegally held for 154 days in federal custody" and eventually incarcerated. Id. In September 1993, plaintiff was charged "with making false statements in an affidavit submitted in a civil case in New York, Pan American World Airways v. United States Et El." Compl't Attachment, Affidavit of Lester K. Coleman. In July 1999, plaintiff was charged in Kentucky with Possession Forged Instrument II. Id. Plaintiff initiated this action in October 2004 while incarcerated at the Green River Corrections Complex in Central City, Kentucky. He seeks $150 million in damages.


"Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed. R. Civ. P. 12(b)(1). In addition, on a motion to dismiss brought pursuant to Fed. R. Civ. P. 12(b)(6), "a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); accord Swierkiewicz v. Sorema, 534 U.S. 506, 514 (2002) (a court may dismiss a complaint "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations") (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). For purposes of resolving a motion to dismiss, the court must treat the plaintiff's factual allegations as true, see, e.g., Warth v. Seldin, 422 U.S. 490, 501 (1975), and must liberally construe the complaint in favor of the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421-22 (1969).


A. Sovereign Immunity

Defendants assert that the Court lacks subject matter jurisdiction over plaintiff's claims against the government agencies and the individual defendants sued in their official capacities because, inter alia, the United States has not consented to be sued for such claims. Absent a specific waiver by the government, sovereign immunity bars lawsuits for damages against the United States, its agencies and government employees acting in their official capacity. FDIC v. Meyer, 510 U.S. 471, 475 (1994); Clark v. Library of Congress, 750 F.2d 89, 102-03 (D.C. Cir. 1984). "[A] waiver of sovereign immunity must be 'unequivocally expressed' and its conditions must be 'strictly observed and exceptions thereto are not to be implied.'" Blackmon-Malloy v. U.S. Capitol Police Bd., 338 F. Supp.2d 97, 103 (D.D.C. 2004) (quoting Lehman v. Nakshian, 453 U.S. 156, 160-61 (1981)).

A claim brought under 42 U.S.C. § 1983, or the judicially created federal counterpart, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), is, by its terms, based on alleged deprivations of constitutional rights by officials acting under color of authority.*fn2 Plaintiff alleges violations of the First Amendment and the Fifth Amendment's due 4 process clause. Compl't at 2. The United States generally has not consented to be sued for constitutional torts. See FDIC, 510 U.S. at 478. Plaintiff asserts that the United States "effectively" waived its immunity when he "reached a tort settlement with co-defendant, Federal Bureau of Prisons for 154 days of illegal incarceration." Pl.'s Opp. at 7. The Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., waives the United States' immunity, but only as to certain common law torts. See 28 U.S.C. §§ 1346(b)(1), 2679(b). "[T]he United States simply has not rendered itself liable under § 1346(b) for constitutional tort claims." FDIC, 510 U.S. at 478; but see id. at 483 (holding "that [Federal Savings and Loan Insurance Corporation's] sue-and-be-sued clause waive[d] the agency's sovereign immunity for Meyer's constitutional tort claim").

Plaintiff has not cited to any authority, including BOP's enabling statute, from which a waiver of immunity may be found with respect to his constitutional claims. He therefore has not met his burden of establishing subject matter jurisdiction. Accordingly, defendants' motion to dismiss the claims against the United States and the individual defendants in their official capacity will be granted.

B. Qualified Immunity

The individually named defendants seek dismissal on the ground, among others, of qualified immunity. "[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Because "[t]he entitlement is an immunity from suit rather than a mere defense to liability," Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), the Supreme Court repeatedly has stressed the importance of resolving immunity questions at the earliest possible stage in litigation. See Malley v. Briggs, 475 U.S. 335, 341 (1986); Mitchell, 472 U.S. at 526; Davis v. Scherer, 468 U.S. 183, 195 (1984); Harlow, 457 U.S. at 818. When applying the objective qualified immunity standard, courts generally must determine first whether the plaintiff has stated a violation of a constitutional or statutory right and, if so, whether that right was so clearly established that a reasonable person would have known that his acts violated the right. Siegert v. Gilley, 500 U.S. 226, 232 (1991). The threshold inquiry is whether, "[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer' s conduct violated a constitutional right[.]" Saucier v. Katz, 533 U.S. 194, 201 (2001) (citing Siegert, 500 U.S. at 232). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Id. If a violation is sufficiently pleaded, the second inquiry is "whether the [constitutional] right was clearly ...

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