United States District Court, District of Columbia
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE.
Shapat Nabaya, proceeding pro se, has filed the
instant Bivens action, naming as defendants the
following individuals: (1) Assistant U.S. Attorneys
(“AUSAs”) Jessica Aber and Gabrielle Michalak,
U.S. District Court Judge Hannah Lauck, U.S. Magistrate Judge
David Novak, and U.S. Probation Officer Tanya L. Smith
(collectively, the “Federal Defendants”); and (2)
Federal Public Defenders Joseph Camden and Mary Maguire
(collectively, the “FPD Defendants, ” and
together with the Federal Defendants, the
“Defendants”). ECF No. 1 (“Compl.”);
ECF No. 4 (“Am. Compl.”).
who has previously filed lawsuits using the name Norman
Abbott, is a serial filer with a history of bringing
meritless cases, in this court and others, against public
officials. See, e.g., United States v.
Nabaya, No. 3:14-cv-835 (HEH), 2015 WL 300499 (E.D. Va.
Jan. 22, 2015); Nabaya v. Dudeck, 38 F.Supp.3d 86
(D.D.C. 2014); Abbott v. Trant, No. 09-cv-2337, 2009
WL 4899214 (D.D.C. Dec. 9, 2009). In January 2015, based on
Nabaya's “historically meritless” litigation
against the IRS, a federal judge in the Eastern District of
Virgnia permanently enjoined him from filing tax lawsuits in
any federal court without first seeking leave to do so.
See Nabaya, 2015 WL 300499, at *1, *3.
there are, unfortunately, some people like Nabaya who abuse
our country's legal system in this way, he has earned the
unusual distinction of being convicted for it. A few months
before filing this lawsuit, Nabaya was indicted in the
Eastern District of Virginia for his “pro se
legal crusade” against an IRS Revenue Officer known as
Wally Stark, in the course of which he filed multiple
vexatious and harassing lawsuits against Stark in state and
federal court. See Superseding Indictment,
United States v. Nabaya, No. 3:17-cr-03 (E.D. Va.
May 15, 2017) (“E.D. Va. Dkt.”), ECF No. 86-1 at
he faced criminal liability for his history of vexatious
litigation, Nabaya filed numerous frivolous motions that
represented, in the words of the judge presiding over his
case, a “reckless abuse of procedure.” United
States v. Nabaya, No. 3:17-cr-03, 2017 WL 3880660, at *1
(E.D. Va. Sept. 5, 2017), writ denied, 706 Fed.Appx.
127 (4th Cir. 2017). In October 2017, Nabaya was convicted of
Retaliating Against an Officer by False Claim, 18 U.S.C.
§ 1521, and making a False Statement in Bankruptcy, 18
U.S.C. § 152(3). See Judgment in a Criminal
Case, E.D. Va. Dkt., ECF No. 306. In February 2018, he was
sentenced to 71 months in federal prison. Id. at 2.
lawsuit arises from those criminal proceedings. The
Defendants are various personnel-judges, prosecutors, a
probation officer, and defense attorneys-who took part in
them. Before the Court are motions to dismiss by the Federal
Defendants, ECF No. 12, and by the FPD Defendants, ECF No. 6.
Although it was not timely filed, the Court will consider
Nabaya's opposition to the motions to dismiss.
See ECF No. 21 (“Opp.”). Also before the
Court are Nabaya's motions to amend his complaint. In the
first, he seeks to add Stark as a defendant. ECF No. 26
(“1st Mot. Am.”). In the second, he seeks to add
AUSA Scott Sroka, who represents the Federal Defendants in
this case, as a defendant as well. ECF No. 29 (“2d Mot.
Am.”). For the reasons set forth below, the Court will
grant the Defendants' motions to dismiss because the
Court lacks personal jurisdiction over them, and deny
Nabaya's motions to amend his complaint.
Motions to Dismiss
Bivens suits are suits against government officials
in their individual, rather than their official, capacities,
personal jurisdiction over the individual defendants is
necessary to maintain a Bivens claim.”
Deutsch v DOJ, 881 F.Supp. 49, 52 (D.D.C. 1995),
aff'd, 93 F.3d 986 (D.C. Cir. 1996). “When
personal jurisdiction is challenged under Rule 12(b)(2), the
plaintiff bears the burden of establishing a factual basis
for the Court's exercise of personal jurisdiction over
each defendant.” Chandler v. Stover, 211
F.Supp.3d 289, 296 (D.D.C. 2016) (citing Crane v. N.Y.
Zoological Soc'y, 894 F.2d 454, 456 (D.C. Cir.
1990)). The plaintiff “must make a prima facie
showing of the pertinent jurisdictional facts.”
First Chi. Int'l v. United Exch. Co., 836 F.2d
1375, 1378 (D.C. Cir. 1988). Although a pro se
plaintiffs complaint must be “liberally construed,
” he is “not freed from the requirement to plead
an adequate jurisdictional basis for [his] claims.”
McDaniel v. FEDITC LLC, 825 F.Supp.2d 157, 160
(D.D.C. 2011) (quoting Kurtz v. United States, 779
F.Supp.2d 50, 51 (D.D.C. 2011)).
courts ordinarily follow state law in determining the bounds
of their jurisdiction over persons.” Daimler AG v.
Bauman, 571 U.S. 117, 134 (2014) (citing Fed.R.Civ.P.
4(k)(1)(A)). In this Circuit, courts look to District of
Columbia law to determine whether personal jurisdiction may
be exercised. Chandler, 211 F.Supp.3d at 296 (citing
United States v. Ferrara, 54 F.3d 825, 828 (D.C.
Cir. 1995)). Under the District of Columbia's
general-jurisdiction statute, a court may exercise general
jurisdiction over a defendant “domiciled in” the
District of Columbia. D.C. Code § 13-422. Under the
District of Columbia's long-arm statute, a court may
exercise specific jurisdiction over a defendant if his
actions fall within one of seven enumerated categories, such
as “transacting any business in the District of
Columbia, ” “causing tortious injury in the
District of Columbia by an act or omission in the District of
Columbia, ” or “causing tortious injury in the
District of Columbia by an act or omission outside the
District of Columbia if [the defendant] regularly does or
solicits business, engages in any other persistent course of
conduct, or derives substantial revenue from goods used or
consumed, or services rendered, in the District of
Columbia.” D.C. Code § 13-423(a)(1), (3)-(4). In
addition, specific jurisdiction is proper only if the
plaintiff's claim “arise[s]” from the
defendant's alleged actions. Id. §
Court concludes that it does not have personal jurisdiction
over any of the Defendants, under either statute. Nabaya has
not alleged any facts showing that any Defendant lives in or
maintains his or her principal place of business in the
District of Columbia; all appear to work in Virginia.
See Compl.; Am. Compl.; Opp. Moreover, he has not
pointed to any fact that suggests that any Defendant's
alleged conduct occurred in or had any effect in the District
of Columbia. See Compl.; Am. Compl.; Opp. In fact,
all of the Defendants' alleged conduct appears to have
occurred in Virginia. Nabaya's claim is that he was
unlawfully prosecuted-but that happened in the Eastern
District of Virginia. See Compl.; Am. Compl.; Opp.
Therefore, the Court lacks personal jurisdiction over all the
Defendants, and the Complaint against them must be
Motions to Amend Complaint
Federal Rule of Civil Procedure 15(a)(2), if a party may no
longer amend his pleading as of right, then he “may
amend [his] pleading only with the opposing party's
written consent or the court's leave, ” and
“[t]he court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2). However,
“[c]ourts may deny a motion to amend a complaint as
futile . . . if the proposed claim would not survive a motion
to dismiss.” Williams v. Lew, 819 F.3d 466,
471 (D.C. Cir. 2016) (second alteration in original) (quoting
James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d
1085, 1099 (D.C. Cir. 1996)). For reasons stated below, the
Court will deny Nabaya's motions to amend his complaint
because such amendments would be futile.
first motion to amend, Nabaya seeks to add Stark as a
defendant, but does not allege any conceivable cause of
action against him. See 1st Mot. Am. at 1.
Regardless, Nabaya asserts no factual basis upon which the
Court may exercise personal jurisdiction over Stark. See
Id. There is no indication that Stark resides in or
maintains his principal place of business in the District of
Columbia, or that Stark's alleged actions are connected
or linked to the District of Columbia. Id. Because