United States District Court, District of Columbia
MICHAEL S. BENT, Plaintiff,
UNNAMED CAPITOL POLICE ONE, et al., Defendants.
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
Michael S. Bent recently petitioned the United States Supreme
Court for a Writ of Certiorari in separate matters. He
brought this lawsuit, pro se, to recover purported
damages stemming from the method by which the Supreme Court
encourages delivery of petitions to the Clerk's Office.
Before the Court is Defendants'  Motion to Dismiss,
which seeks dismissal of this case under Federal Rule of
Civil Procedure 12(b)(1), 12(b)(6), and other grounds. Upon
consideration of the pleadings,  the relevant legal
authorities, and the record as a whole, the Court shall
GRANT Defendants' Motion to Dismiss, and
this case shall be DISMISSED for lack of
subject-matter jurisdiction or, alternatively, for failure to
state a claim.
Plaintiff's operative complaint is entitled “Second
Amended Complaint, ” it is in fact the first Amended
Complaint and shall be referred to as such. See 2d
[sic] Am. Compl., ECF No. 14 (“Am. Compl.”).
Court shall rely on the allegations in the Amended Complaint
for the few facts pertinent to this decision. See
Id. ¶¶ 8-25. When Plaintiff attempted to
hand-deliver a series of petitions directly to the Clerk of
the Supreme Court, he was directed to give them instead to
police officers outside. E.g., id. ¶
8. He “complied under duress” with the
officers' instructions to place the associated documents
into designated plastic bags. E.g., id.
¶¶ 8, 9. Plaintiff deems this process to represent
a “confiscation.” Id. ¶ 14. He
fears that his petitions were tampered with at some point
between the time that he deposited them and the time that the
Supreme Court considered them. See, e.g.,
id. ¶ 18 (expressing concern that a certain
petition's booklets, as reviewed by the Supreme Court,
“are reasonably presumed to be substitutes carefully
prepared to subvert [Plaintiff] Bent's petition”).
Only if Plaintiff were allowed to deliver his petitions
directly to the Clerk- which he reads the Supreme Court rules
to require-could he rest assured that the Supreme Court
reviewed the unaltered originals. See, e.g.,
id. ¶ 27 (arguing that Supreme Court rules
require “litigants . . . to provide case documents to
the Supreme Court Clerk who is thereafter accountable to
assure case documents are filed and not removed from the
suit seeks damages from the Chief of Police and from his
officers who allegedly were involved in Plaintiff's
delivery of his petitions. In his Amended Complaint,
Plaintiff describes the Defendants as “Capitol Police
Officer McCullough, Officer Giovanni, Officer N-8, Officer
Brown and Chief of Police Jeffery Smith.” Id.
¶ 3. Defendants, in turn, understand themselves to
consist of “Chief of Police Jeffrey Smith; Officer
James McCullough; Officer Steven Gigante; Officer Tyler
Brown; and possibly Officer Regis Garris III, ” all of
whom are allegedly officers of the Supreme Court of the
United States Police. Mot. to Dismiss, ECF No. 16, at 1 n.1.
Plaintiff does not object to Defendants' correction that
the officers at issue are Supreme Court police, rather than
Capitol Police assigned to the Supreme Court. See
Am. Compl. ¶ 3; Am. Certification, ECF No. 16-1, at 1
n.1; Pl.'s Opp'n at 7. With the exception of Chief of
Police Smith, who is sued in his official capacity, all of
the other officers are named in both their official and
individual capacities. Am. Compl. ¶ 3.
identifies two claims in his “Claims” section,
where he alleges violations of a Fourth Amendment
“right to be secure in his papers” and a Fifth
Amendment due process right. Id. ¶¶ 4,
33-40. The jurisdictional portion of Plaintiff's Amended
Complaint cites several additional putative grounds for a
federal question, namely 40 U.S.C. § 6121 et
seq.; the Federal Tort Claims Act (“FTCA”),
28 U.S.C. § 2674; and Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388,
392 (1971). Am. Compl. ¶ 4 & n.2; see also
Id. ¶ 6 (alleging that damages can be awarded
pursuant to the FTCA, 28 U.S.C. § 2674).
have moved to dismiss Plaintiff's operative complaint
under Federal Rule of Civil Procedure 12(b)(1), (2), (4),
(5), and (6). Briefing having concluded, their motion is ripe
Federal Rule of Civil Procedure 12(b)(1)
must dismiss a case pursuant to Federal Rule 12(b)(1) when it
lacks subject-matter jurisdiction. In determining whether
there is jurisdiction, “the court may consider the
complaint supplemented by undisputed facts evidenced in the
record, or the complaint supplemented by undisputed facts
plus the court's resolution of disputed facts.”
Coal. for Underground Expansion v. Mineta, 333 F.3d
193, 198 (D.C. Cir. 2003) (quoting Herbert v. Nat'l
Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992))
(internal quotation marks omitted). “At the motion to
dismiss stage, counseled complaints, as well as pro
se complaints, are to be construed with sufficient
liberality to afford all possible inferences favorable to the
pleader on allegations of fact.” Settles v. U.S.
Parole Comm'n, 429 F.3d 1098, 1106 (D.C. Cir. 2005).
In spite of the favorable inferences that a plaintiff
receives on a motion to dismiss, still that
“[p]laintiff bears the burden of proving subject matter
jurisdiction by a preponderance of the evidence.”
Am. Farm Bureau v. EPA, 121 F.Supp.2d 84, 90 (D.D.C.
2000). “Although a court must accept as true all
factual allegations contained in the complaint when reviewing
a motion to dismiss pursuant to Rule 12(b)(1), [a]
plaintiff['s] factual allegations in the complaint . . .
will bear closer scrutiny in resolving a 12(b)(1) motion than
in resolving a 12(b)(6) motion for failure to state a
claim.” Wright v. Foreign Serv. Grievance Bd.,
503 F.Supp.2d 163, 170 (D.D.C. 2007) (internal citations and
quotation marks omitted).
Federal Rule of Civil Procedure 12(b)(6)
Federal Rules of Civil Procedure require that a complaint
contain “‘a short and plain statement of the
claim showing that the pleader is entitled to relief,' in
order to ‘give the defendant fair notice of what the .
. . claim is and the grounds upon which it rests.'”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));
accord Erickson v. Pardus, 551 U.S. 89, 93 (2007).
Although “detailed factual allegations” are not
necessary to withstand a Rule 12(b)(6) motion to dismiss, to
provide the “grounds” of “entitle[ment] to
relief, ” a plaintiff must furnish “more than
labels and conclusions” or “a formulaic
recitation of the elements of a cause of action.”
Twombly, 550 U.S. at 555 (citing, e.g., Papasan
v. Allain, 478 U.S. 265, 286 (1986)). Instead, a
complaint must contain sufficient factual matter, accepted as
true, to “state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 556, 570;
Erickson, 551 U.S. at 93. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). The complaint must
establish “more than a sheer possibility that a
defendant has acted unlawfully.” Id. (citing
Twombly, 550 U.S. at 556). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged- but it has not ‘show[n]'-‘that the
pleader is entitled to relief.'” Id. at
679 (quoting Fed.R.Civ.P. 8(a)(2)).