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Corsi v. Mueller

United States District Court, District of Columbia

October 31, 2019

JEROME CORSI, Plaintiff,
v.
ROBERT MUELLER, et al., Defendants.

          MEMORANDUM OPINION

          ELLEN S. HUVELLE, UNITED STATES DISTRICT JUDGE

         Plaintiff Jerome Corsi brings this action against the Department of Justice; the Federal Bureau of Investigation; the National Security Agency; the Central Intelligence Agency (collectively, “the government”); and Robert Mueller, in both his individual capacity and his official capacity as Special Counsel. Before the Court are defendants' three motions to dismiss and plaintiff's motion for leave to file a second amended complaint in order to add a First Amendment retaliation count against Mueller in his personal capacity. For the reasons stated herein, the motions to dismiss will be granted, and the motion to file a second amended complaint will be denied.

         BACKGROUND

         I. FACTS

         According to the amended complaint, Corsi is an “investigative conservative journalist and author, ” “a strong supporter of President Trump, ” and has researched Hillary Clinton's use of a private email server to conduct government business while Secretary of State. (Am. Compl. ¶¶ 15-16, 27, ECF No. 15.) The amended complaint alleges that Corsi's research and political affiliations prompted the government and Mueller, then-Special Counsel, to attempt “to coerce, extort, threaten and/or blackmail Plaintiff Corsi into testifying falsely” before the grand jury convened to investigate Russian interference in the 2016 U.S. Presidential election. (Id. ¶¶ 20- 22.) Specifically, Corsi claims that “Defendant Mueller and his prosecutorial staff” sought to force Corsi to testify before the grand jury that Corsi “acted as a liaison between Roger Stone and Wikileaks leader Julian Assange concerning the public release of emails obtained from the DNC's servers.” (Id. ¶ 23.) Corsi allegedly told Mueller that the desired testimony would be false. (Id. ¶ 22.) Corsi claims that, despite this, “Defendant Mueller . . . threatened to indict Plaintiff Corsi and effectively put him in federal prison for the rest of his life” if he did not provide the testimony Mueller wanted. (Id. ¶ 22.)

         Corsi further alleges that “Mueller and his staff have leaked grand jury information to the press concerning Plaintiff Corsi.” (Id. ¶ 25.) Corsi cites two news articles that, he alleges, “contain[] confidential information regarding the grand jury proceedings about Plaintiff Corsi that could only possibly have come from Defendant Mueller.” (Id. ¶ 26; see also Id. ¶¶ 26 n.3, 28 n.4.) Corsi also claims that the government and Mueller “have engaged in ongoing illegal, unconstitutional surveillance on Plaintiff Corsi . . . at the direction of Defendant Mueller.” (Id. ¶ 30.) To support this, he alleges that (1) the government “[n]ecessarily” discovered the identity of his stepson by “intercepting [his] text and other messages;” (2) by using a software that “prevent[s] the electronic surveillance of telephone conversations, ” he “has evidence of repeated attempts by government authorities to intercept electronically [his] telephone conversations;” and (3) he “routinely speaks with persons located overseas in regions that are surveilled under PRISM.”[1] (Id. ¶¶ 31, 33.) Finally, he claims that the government and Mueller interfered with his business relationships with his book publisher (Post Hill Press) and his book seller (Amazon), by threatening them with subpoenas or other legal action, and with Dr. David Jones, Alex Jones, and InfoWars, by falsely claiming that they were “paying him hush money to keep him quiet about their actions.” (Id. ¶¶ 60-63.)

         Despite the alleged pressure put on him by defendants, Corsi states that he testified truthfully before the grand jury. (See Id. ¶ 29; see also Pl.'s Opp'n to Mueller's Mot. at 2, ECF No. 40 (“Plaintiff Corsi chose to exercise his First Amendment (and moral) right to give a truthful account of the events of the Russian collusion investigation.”).) And although he alleges that Mueller threatened to indict him, he has never been indicted. (Hr'g Tr. at 35:4-35:5, Oct. 2, 2019, ECF No. 58 (“Tr.”).) Moreover, Mueller's investigation concluded on March 22, 2019, the grand jury has been dismissed, and Mueller has resigned as Special Counsel. (See Pl.'s Opp'n to Mueller's Mot. at 4; Mueller's Mot. to Dismiss at 2, ECF No. 27 (“Mueller's Mot.”).)

         II. PROCEDURAL HISTORY

         Corsi initiated this action on December 9, 2018, against the government and Mueller. On January 21, 2019, he filed an amended complaint, three defendants-Jeff Bezos, the Washington Post, and a Washington Post reporter. Count One alleges that Mueller and the government violated the Fourth Amendment and Section 702 of the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1881a, et. seq. (“FISA”), as amended by the USA FREEDOM Act, by conducting illegal electronic surveillance of Corsi. (Am. Compl. ¶¶ 30, 42-48.) He alleges that Mueller is personally liable for these violations under Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), and he seeks “compensatory and actual damages, punitive damages, equitable relief, reasonable attorneys' fees, pre-judgment interest, [and] post-interest and costs.” (Id. ¶¶ 47-48.) Count Two, brought only against Mueller, alleges a violation of Federal Rule of Criminal Procedure 6(e)(2). (Id. ¶¶ 49-53.) He specifically requests “preliminary injunctive relief as well as permanent injunctive relief.” (Id. ¶ 53.) Count Three charges Mueller and the government with abuse of process for their alleged attempts to coerce Corsi into falsely testifying. (Id. ¶¶ 54-58.) Count Four alleges that all defendants tortuously interfered with Corsi's business relationships with his publisher, book distributor, David and Alex Jones, and InfoWars, for which he seeks damages. (Id. ¶¶ 59-65.) Finally, Count Five asserts a defamation claim against Bezos, the Washington Post, and the Washington Post reporter, which alleges that the latter two defendants, at the direction of Bezos, made defamatory statements about Corsi “to various news and media outlets.” (Id. ¶¶ 66-72.) These statements, Corsi alleges, concerned the nature of payments he was receiving from Dr. David Jones, Alex Jones, and InfoWars. (Id. ¶ 67.) Corsi claims that, as a result, he lost the $15, 000 per month he was receiving from InfoWars and the Jonses. (Id. ¶ 69.)

         In his prayer for relief, Corsi seeks “equitable, declaratory, and injunctive relief;” and general and punitive damages in excess of $1, 600, 000, 000. (Notice of Errata, Ex. 1, ECF No. 16-1 (correcting amended complaint).) Since filing his amended complaint, Corsi has voluntarily dismissed Bezos, the Washington Post, and the Washington Post reporter. (Notice of Voluntary Dismissal, ECF No. 56.) Thus, Counts One through Four are the only remaining counts, and only the government and Mueller are named as defendants.

         The government and Mueller have moved to dismiss Corsi's amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6). (See generally Gov't's Mot. to Dismiss, ECF No. 22 (“Gov't's 1st Mot.”); Gov't's Mot. to Dismiss Counts III & IV, ECF No. 28 (“Gov't's 2d Mot.”); Mueller's Mot.) Mueller's motion includes a certification from the Attorney General's designee that certifies that Mueller was acting within the scope of his office or employment at the time Corsi's claims arose. (Mueller's Mot., Ex. A.) On May 30, 2019, Corsi moved for leave to amend his complaint a second time, seeking to add a First Amendment retaliation claim against Mueller only. (See generally Pl.'s Mot. for Leave to File 2d Am. Compl., ECF No. 41 (“Pl.'s Mot.”).) Aside from the additional count, the proposed complaint is identical to the first amended complaint.

         On October 2, 2019, the Court held a hearing, and it is now ready to rule on defendants' three motions to dismiss and plaintiff's motion for leave to file a second amended complaint.

         ANALYSIS

         I. DEFENDANTS' MOTIONS TO DISMISS

         A. Legal Standards

         1. Federal Rule of Civil Procedure 12(b)(1)

         Under Federal Rule of Civil Procedure 12(b)(1), the Court must dismiss a claim when it “lack[s] . . . subject-matter jurisdiction.” The plaintiff bears the burden of showing that jurisdiction exists. See Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008). Although the Court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party, the Court need not accept factual inferences that are unsupported by the facts alleged in the complaint, nor is the Court required to accept the plaintiff's legal conclusions. Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253-54 (D.C. Cir. 2005) (citing United States v. Gaubert, 499 U.S. 215, 327 (1991)); Primax Recoveries, Inc. v. Lee, 260 F.Supp.2d 43, 47 (D.D.C. 2003) (citing Nat'l Treasury Emps. Union v. United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996)). In determining whether the plaintiff has met his burden, the Court may consider materials outside of the pleadings. Jerome Stevens Pharm., Inc., 402 F.3d at 1253 (citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)).

         2. Federal Rule of Civil Procedure 12(b)(5)

         Under Rule 12(b)(5), which governs service of process, the plaintiff bears the burden of showing that he has properly effected service. See Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987). “[H]e must demonstrate that the procedure employed satisfied the requirements of the relevant portions of Rule 4 and any other applicable provision of law.” Id. (citations and internal quotation marks omitted). Unless proper service has been effected, the Court lacks personal jurisdiction over a defendant. Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 514 (D.C. Cir. 2002).

         3. Federal Rule of Civil Procedure 12(b)(6)

         To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. (citing Twombly, 550 U.S. at 556). This standard requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). Thus, “where 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)) (alteration in original). Moreover, while the Court takes a plaintiff's factual allegations as true, it is not required to accept his legal conclusions as such. Id. at 678 (citing Twombly, 550 U.S. at 555). In considering a motion to dismiss under this Rule, the Court may consider the allegations made within the four corners of the plaintiff's complaint, “any documents either attached to or incorporated in the complaint[, ] and matters of which [it] may take judicial notice.” See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).

         B. The Service of Process on Mueller was Insufficient

         In his motion to dismiss, Mueller argues that Corsi failed to serve him in accordance with Federal Rule of Civil Procedure 4, and, therefore, all claims against him must be dismissed. (See Mueller's Mot. at 9-10.) Because Corsi has sued Mueller in his individual capacity, Corsi was required to serve Mueller in accordance with Rule 4(e).[2] See Fed. R. Civ. P. 4(i)(3) (“To serve a United States officer or employee sued in an individual capacity . . ., a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g).”). Thus, service must have been accomplished by either: (1) “delivering” the requisite documents “to the individual personally, ” (2) leaving . . . cop[ies] . . . at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there, ” or (3) “delivering . . . cop[ies] . . . to an agent authorized by appointment or by law to receive service of process.” Fed.R.Civ.P. 4(e); D.C. Super. Ct. Civ. R. 4(e)(2). Moreover, under Rule 4(m), service must have occurred within 90 days of the filing of the original complaint. Corsi's original complaint was filed on December 9, 2018, so he was required to serve Mueller on or before March 11, 2019. Corsi never even attempted to serve Mueller before March 11, nor did he request an extension of time for service. Instead, Corsi claims that he subsequently attempted to serve Mueller twice, once on April 12, 2019, through employees at the Office of Special Counsel, [3] and again on April 17, 2019, at the Department of Justice. (Pl.'s Opp'n to Mueller's Mot. at 3-4.) Without offering any proof of service, Corsi asserts that “service was . . . effected on April 17, 2019[, ] through the Department of Justice.” (Id. at 4.)

         Corsi has failed to meet his burden of establishing that service was effected in accordance with either the timeliness or manner requirements of Rule 4. With regard to the former, Corsi made no attempt to serve Mueller within 90 days (by March 11, 2019). Instead, his first attempt, which was unsuccessful, came a month later, and his second attempt occurred 38 days after the time for service had expired. (See Id. at 3-4.) While Rule 4(m) requires the Court to extend the time for service if the plaintiff shows good cause for his failure to serve, “[a] plaintiff must employ a reasonable amount of diligence in determining . . . how to effect service before good cause . . . may be found.” Anderson v. Gates, 20 F.Supp.3d 114, 121 (D.D.C. 2013) (citation and internal quotation marks omitted). Corsi's failure to request an extension of the time for service has been considered by some courts to be indicative of a lack of good cause. See, e.g., Etheredge-Brown v. Am. Media, Inc., No. 13-cv-1982, 2015 WL 4877298, at *2 (S.D.N.Y. Aug. 14, 2015) (collecting cases); Falconer v. Gibsons Rest. Grp., No. 10 C 1013, 2011 WL 833613, at *3 (N.D. Ill. Mar. 4, 2011) (declining to afford the plaintiff an extension where he did not request one); Montcastle v. Am. Health Sys., Inc., 702 F.Supp. 1369, 1377 n.4 (E.D. Tenn. 1988) (noting that “plaintiff's counsel never requested an extension of time in which to effect service”). In a feeble attempt to show cause, Corsi claims, without any evidentiary support, that “[a]ny short delay in serving Defendant Mueller was caused by difficulties locating him due to his occupation and his being effectively in hiding.” (Pl.'s Opp'n to Mueller's Mot. at 4.) However, the first attempt at service was not made until after the 90 days had expired. Given the undisputed facts, there is no basis for finding good cause.

         Corsi has also failed to show that he served Mueller as required by Rule 4. Corsi's mere statement that Mueller was served “through the Department of Justice” is insufficient under Rule 4(e)(2), since co-workers and employees are not automatically authorized agents for purposes of service. See Ilaw v. Dep't of Justice, 309 F.R.D. 101, 105 n.3 (D.D.C. 2015) (service of process is invalid where co-workers or employees are not specifically authorized to accept service); see also Yi Tai Shao v. Roberts, No. 18-1233, 2019 WL 249855, at *8 (D.D.C. Jan. 17, 2019) (plaintiff failed to establish service of process when she served defendants' employees, even though plaintiff alleged that the employees claimed to be authorized to accept service). Thus, Corsi has failed to show that he accomplished proper service.

         Corsi asks the Court to overlook this failure because “it is clear that Defendant Mueller and his attorneys have received notice of this lawsuit, as evidenced by the filing of this instant motion.” (Pl.'s Opp'n to Mueller's Mot. at 4.) But “simply being on notice of a lawsuit cannot cure an otherwise defective service.” United States ex rel. Cody v. Computer Scis. Corp., 246 F.R.D. 22, 26 (D.D.C. 2007) (citations and internal quotation marks omitted); see also Mann v. Castiel, 681 F.3d 368, 372 (D.C. Cir. 2012) (“Service is . . . not only a means of notifying a defendant of the commencement of an action against him, but a ritual that marks the court's assertion of jurisdiction over the lawsuit.” (citation and internal quotation marks omitted)).

         Since Corsi has not served Mueller in accordance with Rule 4, his claims against Mueller in his individual capacity will be dismissed without prejudice. But because Mueller's other arguments for dismissal are meritorious and provide a basis for dismissal with prejudice, the Court will consider those as well. See Simpkins v. District of Columbia, 108 F.3d 366, 369-70 (D.C. Cir. 1997) (holding that the district court was allowed to proceed to evaluate the merits of the plaintiff's Bivens claims even though it held that service of process had not been accomplished); Dominguez v. District of Columbia, 536 F.Supp.2d 18, 22 (D.D.C. 2008) (“If dismissing the claim without prejudice due to insufficient service would lead to the refiling of a meritless claim, however, our Circuit has held that it is proper to consider other means of dismissing the case.”).

         C. Corsi's Fourth Amendment Claims

         The first count of Corsi's amended complaint alleges that both Mueller and the government conducted “illegal and unconstitutional surveillance” of Corsi in violation of the Fourth Amendment and Section 702 of FISA, 50 U.S.C. § 1881a. (Am. Compl. ¶¶ 30-33, 42- 48.) Corsi claims that the government “[n]ecessarily” identified his stepson by “intercepting [Corsi's] text and other messages, ” since his stepson does not share a name with Corsi. (Am. Compl. ¶ 31.) Corsi also alleges that “[a]uthor Jim Garrow, who resides in Toronto, Canada, and has developed a ‘DEAF' system to prevent the electronic surveillance of telephone conversations has applied DEAF to Plaintiff Corsi's cellphone and has evidence of repeated attempts by government authorities to intercept electronically Plaintiff Corsi's telephone conversations.” (Id.) To support his claim that defendants intercepted his communications with his contacts abroad in violation of FISA, he alleges that he “routinely speaks with persons located overseas in regions that are surveilled under PRISM.” (Am. Compl. ¶ 33.) Corsi claims that the defendants conducted this surveillance “to coerce, extort, threaten and/or blackmail him into submission to provide false sworn testimony to be used to attempt to indict and/or remove the current president of the United States.” (Id. ¶ 45.)

         The government argues that this Court lacks jurisdiction under Rule 12(b)(1) because Corsi lacks standing. (See Gov't's 1st Mot. at 10-14.) And Mueller argues, inter alia, that Corsi has failed to state a claim under Bivens and that Bivens should not be extended to his claim. (See Mueller's Mot. at 13-32; Reply in Supp. of Mueller's Mot. at 7-9.) All of these arguments are persuasive.

         1. Corsi Lacks Standing to Bring Count One

         As a threshold matter, the Court considers whether Corsi has alleged sufficient facts to establish standing. The party invoking federal jurisdiction has the burden of establishing standing by showing that (1) he suffered an injury in fact, (2) the injury is “fairly traceable” to the defendant's conduct, and (3) it is likely redressable by a favorable judicial decision. Spokeo, Inc. v. Robbins, 136 S.Ct. 1540, 1547 (2016) (citation omitted). To satisfy the first element, the alleged injury must be “(1) concrete, (2) particularized, and (3) actual or imminent.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 914 (D.C. Cir. 2015) (citation and internal quotation marks omitted). And, “[a]n actual or imminent injury is certainly impending and immediate- not remote, speculative, conjectural, or hypothetical.” Id. (citation and internal quotation marks omitted).

         Corsi fails to plead an actual or imminent injury. His claim regarding FISA is foreclosed by the Supreme Court's ruling in Clapper, where the plaintiffs sought an injunction to prevent the government from conducting surveillance under Section 702 of FISA. Clapper v. Amnesty Int'l USA, 568 U.S. 398, 410 (2013). They alleged that “they communicate by telephone and e- mail with people the Government ‘believes or believed to be associated with terrorist organizations,' ‘people located in geographic areas that are a special focus' of the Government's counterterrorism or diplomatic efforts, and activists who oppose governments that are supported by the United States Government.” Id. at 406. Based on these allegations, they argued that they had standing “because there is an objectively reasonable likelihood that their communications will be acquired under [Section 702] at some point in the future.” Id. at 401. But the Supreme Court disagreed, concluding that they failed to show an imminent injury because their claims “relie[d] on a highly attenuated chain of possibilities”: that (1) their foreign contacts would be targeted, (2) the government would do so under [Section 702], (3) a court would authorize such surveillance, (4) the government would successfully obtain the contacts' communications, and (5) those communications would include communications with the plaintiffs. See Id. at 410-14. Thus, the Court held that allegations of communications with foreign nationals who may be monitored under Section 702 do not suffice to establish an injury. See Id. at 414.

         In disregard of this ruling, plaintiff's counsel, Larry Klayman, has on multiple occasions attempted to bring claims of illegal surveillance identical to or even more deficient than the claims alleged by the plaintiffs in Clapper. In Klayman v. Obama, plaintiff's counsel, representing himself and other plaintiffs, alleged that the government had targeted the plaintiffs' communications using the PRISM program. 957 F.Supp.2d 1, 8 n.6 (D.D.C. 2013), vacated and remanded on other grounds, 800 F.3d 559 (D.C. Cir. 2015). The district court held that the plaintiffs lacked standing to bring this claim, noting that “plaintiffs here have not even alleged that they communicate with anyone outside the United States at all, ” making their claims “even less colorable than those of the plaintiffs in Clapper.” Id.

         Undeterred, plaintiff's counsel filed a separate complaint, again on behalf of himself and other plaintiffs and again alleging that the plaintiffs' communications were being illegally collected via the PRISM program. See Klayman v. Nat'l Sec. Agency, 280 F.Supp.3d 39, 55-56 (D.D.C. 2017). This time, the complaint alleged that plaintiff's counsel “frequents and routinely telephones and e-mails individuals and high-ranking government officials in Israel, a high-conflict area where the threat of terrorism is always present”; that he met and communicated “with persons in Israel, Spain, the United Kingdom, and several other European nations which have very large Muslim populations and where terrorist cells are located”; and that, while “participating in a radio interview about the NSA, . . . the show experienced a tech meltdown.” Id. at 56 (internal quotation marks omitted). The complaint also alleged that other plaintiffs “make telephone calls and send and receive e-mails to and from foreign countries and . . . have received threatening e-mails and texts from overseas, in particular Afghanistan.” Id. (internal quotation marks omitted). Despite plaintiff's counsel's efforts to overcome the lack of standing found in his prior litigation, the district court held that “plaintiffs' allegations remain plainly insufficient under the standard the Supreme Court articulated in Clapper.” Id. The court found plaintiffs' allegations that they communicated with individuals in foreign countries to “fall far short even of the Clapper plaintiffs' allegations.” Id. at 57. The court also held that “[plaintiff's counsel's] assertions that his foreign contacts have, in fact, been targeted by the Government under the PRISM program ‘are necessarily conjectural,' because the identities of PRISM targets are classified.” Id. (quoting Clapper, 568 U.S. at 412). The D.C. Circuit affirmed, ruling that:

Appellants here allege no more than that they communicate with various individuals in countries Appellants imagine might attract government surveillance. They provide no more specific reason to suspect their contacts are targets of the PRISM program or that their own communications will be collected. They therefore have failed to allege the kind of actual or imminent injury required by Clapper.

Klayman v. Obama, 759 Fed.Appx. 1, 4 (D.C. Cir. 2019) (per curiam).

         Most recently, in Montgomery v. Comey, plaintiff's counsel again raised the same claim of illegal surveillance through the PRISM program on behalf of himself and another plaintiff. 300 F.Supp.3d 158, 166-67 (D.D.C. 2018). Plaintiff's counsel alleged that he “made international phone calls and exchanged correspondence with individuals located in foreign nations within the past two years.” Montgomery v. Comey, 752 Fed.Appx. 3, 4 (D.C. Cir. 2019) (per curiam). The district court again relied on Clapper to dismiss the plaintiffs' PRISM surveillance claim. 300 F.Supp.3d at 167-68. The D.C. Circuit affirmed, holding that plaintiff's counsel's single allegation “without elaboration” was a “threadbare claim . . . inadequate under Clapper.” Montgomery v. Comey, 752 Fed.Appx. at 4.

         Despite the fact that his prior claims of illegal surveillance under PRISM have consistently been rejected, plaintiff's counsel persists with an even more deficient allegation here-that Corsi “routinely speaks with persons located overseas in regions that are surveilled under PRISM.” (Am. Com. ¶ 33.) This type of claim has been rejected by the Supreme Court in Clapper and in the three cases that plaintiff's counsel has brought in this Court. Accordingly, there is no basis for the Court to find standing in this case.

         Corsi's Fourth Amendment claim fares no better. His assertion that the government discovered the identity of his stepson by intercepting his electronic communications relies on nothing but speculation. (Am. Compl. ¶ 31.) As Corsi cannot show that the government actually intercepted his communications, as opposed to using other investigative methods that would not implicate his Fourth Amendment rights, he has no basis to support an inference of standing. See, e.g., Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015).

         Similarly, he claims to have evidence that the government has attempted to intercept his cellphone conversations. Corsi fails, however, to allege an injury because there is no claim that the government successfully intercepted any of his conversations. Instead, he only describes attempts. Moreover, he concedes that the software used to detect these attempts “prevent[s] the electronic surveillance of telephone conversations” and has been “applied” to his phone. (Am. Compl. ¶ 31 (emphasis added).) Corsi again asks the Court to draw purely speculative inferences, unsupported by the allegations in his complaint, to conclude that the government has violated his Fourth Amendment rights. He has, therefore, failed to show any injury that is actual or imminent.[4] Accordingly, Count One of Corsi's amended complaint will be dismissed without prejudice for lack of standing.[5]

         2. Corsi Fails to State a Bivens Claim Against Mueller

         In addition to a lack of standing, Corsi fails to state a claim against Mueller in his individual capacity, for he does not allege personal involvement on the part of Mueller. It is well established that “Bivens claims cannot rest merely on respondeat superior.” Simpkins, 108 F.3d at 369 (citation omitted); see also Iqbal, 556 U.S. at 676 (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeatsuperior.”). Instead, “a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676 (emphasis added); see also Simpkins, 108 F.3d at 369 (“The complaint must at least allege that the defendant federal official was personally involved in the illegal conduct.”). Instead of alleging any individualized conduct by Mueller, Corsi baldly asserts, without factual support, that any alleged violations took place “at the direction of Defendant Mueller.” (Am. Compl. ¶ 30; see also Id. ¶ 32 (“This illegal and unconstitutional surveillance ...


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