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Harris v. U.S. Dep't of Justice

March 5, 2009

RICHARD M. HARRIS, PLAINTIFF,
v.
U.S. DEP'T OF JUSTICE ET AL., DEFENDANTS.
RICHARD M. HARRIS, PLAINTIFF,
v.
UNITED STATES ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

Plaintiff Richard Harris filed a pro se complaint against several defendants, known and unknown, institutional and individual, federal, state, and private. He asserts claims for constitutional, statutory, and common law torts arising from an alleged widespread and long-running conspiracy to deter him from testifying before a grand jury and then later to retaliate against him for what some defendants believe - erroneously - was his cooperation with the government. Pending before the Court are three motions to dismiss and a motion for default judgment. For the reasons stated, the motions to dismiss will be granted, the plaintiff's motion for default judgment will be denied, and the action dismissed.*fn1

I. Factual Background

Harris is currently incarcerated, serving a criminal sentence imposed by the Commonwealth of Pennsylvania. In 1998, while he was serving a prior criminal sentence for robbery imposed by the Commonwealth of Virginia, see Compl. ¶ 36, Harris informed prison authorities he had furnished the name of a potential "hit man" to the two defendants in a pending felony prosecution in the District of Columbia Superior Court- United States v. Tommy Zurita and Farid Rashid - who planned to kill the complaining witness in the case. After failing to persuade Harris to enter a cooperation agreement, the government called him as a witness to testify about the planned "hit" before a D.C. Superior Court grand jury on December 15, 1998. Harris appeared but refused to testify, invoking his privilege against self-incrimination under the Fifth Amendment to the United States Constitution. . . . [After securing an immunity grant for his testimony], [o]n January 21, 1999 Harris again appeared before a D.C. Superior Court grand jury and again refused to testify, invoking his Fifth Amendment privilege. He did the same before a district court grand jury on March 7, 2000.

U.S. v. Harris, 314 F.3d 608, 609 (D.C. Cir. 2002). At a show cause hearing for contempt on May 4, 2000, Harris maintained that because of concern for his family's safety, he would continue to refuse to provide the sought-after grand jury testimony. Id. at 610.

Harris alleges that he was the victim of a wide-spread conspiracy, originally formed in or around May 1998 among his former friends - now defendants in this action - Tommy Zurita, Farid Rashid (the two defendants in the Superior Court felony prosecution), Derrick Kirby and Eddie Sullivan. Compl. ¶¶ 47, 48. The purpose of the conspiracy was first to "deter Harris by means of threats, intimidation, and violence, from testifying freely and truthfully before the grand juries of the D.C. Superior Court and the United States District Court for the District of Columbia . . . ." and thereafter to retaliate against him by physically harming him "for his having appeared before the above-mentioned grand juries." Id. ¶ 47. "On information and belief," the complaint alleges that "the conspiracy grew within a period of months" after May 1998 to include defendants Jack Kemp (former household employer of plaintiff's mother), Michelle Carter (the plaintiff's wife), Harry Sullivan, Jr. and Tracie Mitchell (plaintiff's former friends), Eugene Jones (plaintiff's former fellow inmate in Pennsylvania prison), Jensen Barber (plaintiff's court-appointed counsel for plaintiff's grand jury appearances), and two John Does, alleged to be CIA or DOJ officials. Id. ¶ 50. The complaint also states that Harris "refused to provide any testimony before the grand jury" because he was "seeking to protect [his wife] and the couple's three children from any possible retaliation," id. ¶ 45 (emphasis in the original).

After having refused to testify before the grand juries in 1998 and 1999, Harris was attacked and stabbed in October 2000 while housed in the D.C. Jail, an assault allegedly arranged by Carter, Kemp, Kirby, Mitchell, Rashid, Zurita, Rashid, Jones, Eddie Sullivan and John Doe 2, acting through unnamed associates confined at the D.C. Jail. Id. ¶ 68. The attack was orchestrated to "both deter Harris from testifying before the grand jury and to retaliate for having even appeared before it." Id. ¶ 66. Then, in November 2006, the alleged conspirators "attempted to lure Harris' younger brother . . . into a location where they could kidnap and kill or otherwise harm him." Id. ¶ 69. Finally, in January 2007, Harris was attacked again, this time while incarcerated at a state prison facility in Pennsylvania. This second attack is also alleged to have been "arranged" by the alleged conspirators. Id. ¶ 106 (naming the same conspirators except leaving out Zurita).

Based on these events, and the theorized conspiracy,*fn2 the complaint alleges (i) a constitutional tort for violating his due process rights, (ii) a statutory tort under 42 U.S.C. § 1985(2) for conspiracy to intimidate the plaintiff with respect to his grand jury testimony, (iii) a common law tort of intentional infliction of emotional distress, and (iv) a common law tortious invasion of privacy against Alberto Gonzales, Kemp, Barber, Kirby, Carter, Mitchell, Zurita, Rashid, Jones, Eddie Sullivan and Harry Sullivan, Jr., two John Does and, presumably (as they are not named) the U.S. Department of Justice and the CIA. It alleges a violation of the Privacy Act against two John Does and (presumably) the CIA. It alleges a legal malpractice claim based on breach of attorney-client privilege and conflict of interest against plaintiff's court-appointed counsel, Barber. It also alleges a violation of the Eighth Amendment against officials and employees of the prison system for the Commonwealth of Pennsylvania for their roles in not adequately protecting the plaintiff from the attack on his person in January 2007. It also alleges that the prison personnel violated plaintiff's First Amendment rights by interfering with his access to the prison grievance process and, in turn, the courts.

Several defendants have never been properly served in this action. More than a year after filing the complaint, the plaintiff has not yet furnished an address for service with respect to defendants Zurita, Rashid, and Jones, or on Alberto Gonzales in his individual capacity. Compl. ¶¶ 11, 18, 19, 23. Therefore, service on those four individuals has never been attempted. Service has also never been attempted on the two John Does who the plaintiff has not yet identified by name or address. Service was attempted, but not accomplished, as to Jack Kemp, Tracie Mitchell, Harry Sullivan, Jr. and Eddie Sullivan. See Case Docket, "Summons Returned Unexecuted" (Feb. 29, 2008; May 2, 2008; Aug. 19, 2008; Sept. 22, 2008).

II. Discussion

A. Barber's Motion to Dismiss

Barber, who served as court-appointed counsel to Harris in connection with Harris' grand jury subpoenas, has filed a motion to dismiss, arguing that the complaint fails to state any claims against him upon which relief may be granted. Plaintiff has filed an opposition to Barber's motion.

A court may dismiss a complaint or any portion of it for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). A court considering such a motion to dismiss must assume that all factual allegations are true, even if they are doubtful. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, - -, 127 S.Ct. 1955, 1965 (2007); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (noting that a court must construe the complaint "liberally in the plaintiffs' favor" and "grant plaintiffs the benefit of all inferences that can be derived from the facts alleged"). A court need not, however, "accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint. Nor must [a] court accept legal conclusions cast in the form of factual allegations." Kowal, 16 F.3d at 1276. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" Twombly, 127 S.Ct. at 1964-65 (internal citations and quotations omitted) (alteration in original). "Factual allegations must be enough to raise a right to relief above the speculative level, . . . on the assumption that all the allegations in the complaint are true . . . ." Id. at 1965 (citations and footnote omitted). In deciding a motion brought under Rule 12(b)(6), a court is limited to considering "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citations omitted). A court may take judicial notice of public records from other proceedings. Covad Communications Co. v. Bell Atlantic Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005) (permitting judicial notice of facts in public records of other proceedings).

The complaint alleges that "defendant Barber joined the conspiracy to deter Harris from testifying in connection with the federal investigation of the murder-for-hire plot," and that Barber "supplied the various other participants in the conspiracy with confidential and privileged attorney-client information concerning the investigation and the Government's efforts to secure Harris' cooperation and testimony." Compl. ΒΆ 65. It offers no facts to support the allegations of a conspiracy involving Barber and does not identify any information that Barber provided to the other defendants. Rather, it merely alleges ...


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