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 ...