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Walsh v. Hagee

United States District Court, District of Columbia

October 26, 2012

Rory WALSH, Plaintiff,
v.
Michael HAGEE, et al., Defendants.

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[Copyrighted Material Omitted]

Page 53

Rory M. Walsh, York, PA, pro se.

Andrea McBarnette, U.S. Attorney's Office, Washington, DC, Robert M. Gittins, Law Offices of William J. Hickey, Rockville, MD, for Defendants.

James D. Axe, York, PA, pro se.

MEMORANDUM OPINION

RICHARD W. ROBERTS, District Judge.

Pro se plaintiff Rory M. Walsh on his own behalf and as natural guardian of S.J.W., a minor, brings claims under the Constitution and several federal statutes alleging that the defendants [1] are participating in a government conspiracy to harass and assault him and his family. The defendants have each moved under

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Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(3), and/or 12(b)(6) to dismiss the complaint for lack of subject matter and/or personal jurisdiction, for improper venue, and/or for failure to state a claim. Because Walsh has made no showing that this court has personal jurisdiction over Axe, Axe's motion to dismiss will be granted. Because the court lacks subject matter jurisdiction over Walsh's claims under the Federal Tort Claims Act (" FTCA" ), 28 U.S.C. § 1346(b), the Fourth, Fifth and Sixth Amendments of the U.S. Constitution, and 18 U.S.C. § 2712, and because Walsh failed to state a claim against the defendants upon which relief can be granted under 10 U.S.C. § 1552, the Privacy Act, 5 U.S.C. § 552a, the Racketeer Influenced and Corrupt Organizations Act (" RICO" ), 18 U.S.C. §§ 1961-1968, the Crime Victims' Rights Act (" CVRA" ), 18 U.S.C. § 3771, the Victim and Witness Protection Act of 1982, 18 U.S.C. § 1514, and the Fourteenth Amendment of the U.S. Constitution, the complaint will be dismissed as to the remaining defendants.

BACKGROUND

Walsh's amended complaint makes the following factual allegations. Walsh is a retired U.S. Marine Corps captain. Walsh first came to know defendant Hagee when Walsh served as a rifle company commander under Hagee. Am. Compl. ¶ 11. Hagee has since retired from the Marine Corps. During most of the events relevant to the complaint, Hagee " work[ed] for the Director of National Intelligence, [defendant Clapper,] as a member of the ultra secret National Center for the Coordination of Counter-Intelligence Commission (NCCCIC)." Id. ¶ 24.

In 2005, Walsh filed a complaint in the federal district court in the Middle District of Pennsylvania against several federal defendants alleging, among other things, that the defendants failed to investigate Walsh's claim that a lieutenant colonel tried to poison him with arsenic. See Walsh v. United States, No. 05-CV-0818, 2006 WL 1617273 (M.D.Pa. June 9, 2006). While Walsh was attempting to file a document in that case, " Hagee sent assassins from [a counter-intelligence (" CI" ) team]" to kill Walsh. Am. Compl. ¶ 22. Hagee continued to interfere with that case by directing defendant Berger, a security officer at the federal courthouse, " to manipulate the scanners, and hold mock arrests in front of [Walsh] in the courthouse[.]" Id. ¶ 25. In collusion with Hagee, defendant presiding Judge Conner " refused to properly rule" in the Walsh v. United States case. Id.

Since Hagee joined the NCCCIC, Hagee has invaded Walsh's privacy by conducting surveillance through the ECHELON surveillance system, id. ¶ 41, through defendant Axe, Walsh's neighbor, and by monitoring Walsh's credit card usage, id. ¶ 33(b). Hagee has interfered with Walsh's ability to travel, own a car, and attend congressional hearings. Id. ¶ 33(b)-(e).

The arsenic poisoning caused Walsh to become a diabetic. Id. ¶ 19. After being diagnosed with diabetes, Walsh sought to have his military record " corrected." Id. ¶ 38-39. Hagee used ECHELON to watch Walsh as he prepared the appropriate application to amend his military record, sent FBI teams to Walsh's house to intercept his application, and stole his application from the mail. Walsh, then, had to hand-deliver the application to the Board for Correction of Naval Records (" BCNR" ). Id. ¶ 41-43. Hagee also ordered defendant Poleto to contact Walsh's attorney and try to convince the attorney to have any reference to the arsenic poisoning removed from Walsh's application. Id. ¶ 44. Hagee and Poleto contacted

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Walsh's congressional representatives and members of the military records review board thus causing the BCNR to not respond to Walsh's request to correct his military record. Id. ¶ 46.

Hagee caused Veterans Affairs (" VA" ) to " falsify a medical examination." Id. ¶ 26. Hagee also directed a doctor to make a false statement on Walsh's claim for arsenic poisoning that was submitted to the VA. Id. The false statement caused defendant Jackson, in her capacity as a health benefits manager, to deny Walsh's claim. Id. ¶ 28. Jackson and her colleague defendant Kostic also denied Walsh's claim for his injured shoulder.[2] Id. ¶ 32. Hagee also tried to make Walsh " become an insulin addict, and have him placed on artificial insulin" by directing defendant De Santi to try to persuade Walsh to take insulin. Id. ¶ 34.

Walsh filed a complaint against Hagee with Clapper but " Hagee intercepted the mailed copy [of the complaint] and destroyed it[.]" Id. ¶ 7. Clapper has had a copy of the complaint since June 20, 2011 but " has taken no action to bring defendant Hagee in line with federal laws, or preclude his use of national Counter-intelligence forces to harass the Plaintiff[ ]." Id. at 2.

Hagee continued to harass Walsh by directing defendant Special Agent Apicella to question Walsh about shootings that occurred at the Marine Corps War Memorial in Quantico, Virginia. Id. ¶ 48.

The amended complaint summarized above alleges claims under the FTCA, the Fourth, Fifth, and Sixth Amendments, 18 U.S.C. § 2712, 10 U.S.C. § 1552, the Privacy Act, RICO, the CVRA, the Victim and Witness Protection Act, and the Fourteenth Amendment.[3] Walsh seeks $50,000,000 in damages and injunctive relief. The federal defendants have moved to dismiss all of Walsh's claims under Rules 12(b)(1), 12(b)(2), 12(b)(3), and 12(b)(6). Berger moved to dismiss the complaint under Rules 12(b)(2) and 12(b)(6). Axe has moved to dismiss the complaint under Rules 12(b)(1), 12(b)(2), and 12(b)(6). Walsh opposes.

DISCUSSION

Federal Rule of Civil Procedure 12(b)(1) provides that a federal court must dismiss a case when it lacks subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). " ‘ Before a court may address the merits of a complaint, it must assure that it has jurisdiction to entertain the claims.’ " Cornish v. Dudas, 715 F.Supp.2d 56, 60 (D.D.C.2010) (quoting Marshall v. Honeywell Tech. Solutions, Inc., 675 F.Supp.2d 22, 24 (D.D.C.2009)). Thus, a court must even raise on its own any questions it perceives about its subject matter jurisdiction. Douglass v. District of Columbia, 605 F.Supp.2d 156, 168-69 (D.D.C.2009). It is the plaintiff's burden to demonstrate subject matter jurisdiction. Shuler v. United States, 531 F.3d 930, 932 (D.C.Cir.2008). If the plaintiff cannot meet its burden, the court must dismiss the action. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (citing Ex parte McCardle, 74 U.S. 506, 514, 7 Wall. 506, 19 L.Ed. 264 (1868)).

In considering a motion to dismiss for lack of subject matter jurisdiction, a court " treat[s] the complaint's factual allegations as true" and " ...


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