Free Memorandum - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona RICHARD G. PATRICK Assistant U.S. Attorney Arizona State Bar No. 5148 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Charles August Schlund, III, an individual CIV-03-01590-PHX-VAM Plaintiff, v. George W. Bush, President of the United States, a Sovereign Nation, George W. Bush, an individual; Does 1-10, individuals; Does 11-20, entities, Defendants. By his first amended complaint, plaintiff seeks monetary damage relief against George Walker Bush, President of the United States of America. In a bizarre pleading, plaintiff premises relief under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, et. seq., the RICO statutes, 18 U.S.C. §§ 1961, et. seq., the Convention Against Torture (Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 1465 U.N.T.S. 112 [entered into force June 26, 1987]), certain civil rights statutes (42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986 and 1988), the Religious Freedom Restoration Act of 1993 (42 U.S.C. § 2000bb and/or Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d, et. seq.). At the outset, the Court should strike the first amended complaint in its entirety under Rule 12(f) as a "mere waste of time" that does not deserve to be "seriously treated." Barnet v. National Bank, 98 U.S. 555, 558 (1878). Although the striking of entire complaints in pro se matters is rare, precedent exists where, as here, the pleading is replete with scurrilous, offensive and objectional allegations. Skolnick v. Hallett, 350 F.2d 861 (7th Cir. 1965); Carone v. Whalen, 121 F.R.D. 231 (M.D. Penn. 231). As aptly noted by the district court in Doran v. McGinnis, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT BUSH'S MOTION TO DISMISS

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1 158 F.R.D. 383, 388 (E.D. Mich. 1994), "[c]ourts need not entertain claims founded upon beliefs 2 (alleged implantation in his brain of a telepathic mind control device) which are so obviously 3 bizarre and illusory." The Court should treat plaintiff's first amended complaint as a "wilful 4 imposition on the dignity of the court" and, under Rule 12(f), strike it. Chew Wing Luk v. 5 Dulles, 268 F.2d 824, 827 (9th Cir. 1959). 6 7 8 first amended complaint, they are numerous and require little scholarly discussion. First, there 9 are obvious statute of limitations issues. With respect to plaintiff's FTCA claims, the limitations 10 period is provided by 28 U.S.C. § 2401(b) (claim presentment within two years after claim 11 12 limitations for a civil rights action against federal actors is the forum state's personal injury 13 statute of limitations that applies to analogous state law causes of action. Kreines v. United 14 15 16 applied the two-year limitations period set forth in A.R.S. § 12-542 to Bivens actions. DeLuna 17 18 1994). As to plaintiff's RICO claims, a four-year statute of limitations applies. See, Pincay v. 19 20 by the 28 U.S.C. § 1658(a) four-year statute of limitations, Jama v. U.S. I.N.S., 343 F. Supp. 2d 21 338, 365 (D. N.J. 2004), and his 42 U.S.C. § 2000d claims are (for Arizona) governed by a two 22 23 Although dismissals under Rule 12(b)(6) are disfavored, they are nonetheless appropriate 24 where the pleader makes allegations which show on the face of the complaint an insuperable bar 25 26 Here, plaintiff's first amended complaint fails to allege that he filed an administrative claim and that the 28 U.S.C. § 2675 six month time period has expired. Gillespie v. Civiletti, 27 629 F.2d 637, 640 (9th Cir. 1980). Failure to comply with the provisions of 28 U.S.C. § 2675(a) McNeil v. United States, 508 U.S. 106 (1993); 28 is an absolute bar to suit in the District Court. Cir. 2000); Cadwalder v. United States, 45 F.3d Brady v. United States, 211 F.3d 499, 502 (9th 297, 300 (9th Cir. 1995); Bryant v. United States, 147 F. Supp. 2d 953, 961 (D. Ariz. 2000).
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THE STATUTES OF LIMITATIONS BAR RELIEF FOR MUCH OF WHAT PLAINTIFF COMPLAINS OF IN THE FIRST AMENDED COMPLAINT. To the extent the Court needs to reach applicable defenses to and deficiencies with the

accrues).1 Dyniewicz v. United States, 742 F.2d 484 (9th Cir. 1984). The applicable statute of

States, 959 F.2d 834, 836 (9th Cir. 1992); Johnson v. Horne, 875 F.2d 1415, 1424 (9th Cir. 1989); See, Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996). In Arizona, courts have traditionally

v. Farris, 841 F.2d 312, 313 (9th Cir. 1988); Girdler v. Dale, 859 F. Supp. 1279, 1281 (D. Ariz.

Andrews, 238 F.3d 1106, 1108 (9th Cir. 2001). Finally, plaintiff's RFRA claims are governed

year limitations period. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 974 (9th Cir. 2004).

1 to relief. Corsican Productions v. Pitchess, 338 F.2d 441, 442-43 (9th Cir. 1964). Thus, while 2 a statute of limitations defense is usually raised in a responsive pleading, the defense may be 3 raised in a rule 12(b)(6) motion if the running of the statute is apparent from the face of the 4 complaint.2 Ladesma v. Jack Stewart Produce, Inc., 816 F.2d 482, 484 n.1 (9th Cir. 1987). 5 6 The plaintiff does not plead a viable claim against the President as a supervisory official 7 simply by alleging that unnamed federal employees acted improperly. The Supreme Court early 8 rejected the notion that a supervisor could be liable for a subordinate's misconduct under the 9 doctrine of respondeat superior. See, Robertson v. Sichel, 127 U.S. 507, 515 (1887); See also, 10 Rizzo v. Goode, 423 U.S. 362, 371 (1976). Caselaw within the Ninth Circuit follows that same 11 governing principle. Bibeau v. Pacific Northwest Research Foundation, Inc., 188 F.3d 1105 12 13 Hentz v. Eastern Oregon Correctional Institution, 1999 WL 562698 (D. Or. 1999). To state a 14 claim against a supervisory official, a plaintiff must establish a causal connection between the 15 act of the supervisory official and the alleged constitutional violation. See, Bergquist v. County 16 17 18 participation, his exercise of control or direction, or his failure to supervise," dismissal is 19 20 1981). Plaintiff's vague and conclusory allegations of the President's official participation in 21 the asserted constitutional violations by unnamed federal employees are insufficient to withstand 22 23 24 Movants do not assert that the entirety of plaintiff's first amended complaint is time25 barred. Nevertheless, many of the events cited by plaintiff in his first amended complaint, to the extent relief is premised thereon, are well beyond the applicable limitations periods. To the 26 extent plaintiff's first amended complaint lacks clarity on the issue, that fault is his to bear. 27 The United States and its agencies, of course, are not suable under a Bivens theory. FDIC v. Meyer, 510 U.S. 471 (1994); Pereira v. United States Postal Service, 964 F.2d 873, 876 28 (continued...) 2
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THE PRESIDENT IS NOT LIABLE UNDER RESPONDEAT SUPERIOR PRINCIPLES.

1113-14 (9th Cir. 1999); Kalka v. Megathlin, 10 F. Supp. 2d 1117, 1120-21 (D. Ariz. 1998);

of Cochise, 806 F.2d 1364, 1369-70 (9th Cir. 1986); McKay v. Hammock, 730 F.2d 1367, 1374 (10th Cir. 1984) (unless plaintiff pleads an "affirmative link" between the supervisor's "personal

appropriate); Arnold v. International Business Machines Corp., 637 F.2d 1350, 1355 (9th Cir.

a motion to dismiss.3 Richard v. Harper, 864 F.2d 85, 88 (9th Cir. 1988).

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PLAINTIFF'S RICO CLAIMS ARE NOT PROPERLY PLEAD NOR COGNIZABLE AGAINST THE FEDERAL DEFENDANTS. The Court should dismiss plaintiff's RICO claims for failure to state a claim upon which

3 relief can be granted and/or for failing to satisfy the specificity requirement under 4 Fed. R. Civ. P. 9(b). Plaintiff's first amended complaint contains only general and conclusory 5 allegations with regard to the predicate acts allegedly committed by the President and the 6 unnamed federal agencies/employees. See Lancaster Cmty. Hosp. v. Antelope Valley Hosp. 7 8 9 1995) (conclusory allegations of racketeering are insufficient to state a RICO claim). 10 Furthermore, RICO claims as pled against the President and unnamed federal entities/employees 11 are not cognizable. Donahue v. F.B.I., 204 F. Supp. 2d 169 (D. Mass. 2002); Penta v. Dep't of 12 the Treasury, 78 A.F.T.R. 2d 96-6389 (1996 WL 693679) (D. Ariz. 1996); Steinman v. I.R.S., 13 78 A.F.T.R. 2d 96-5380 (1996 WL 51233) (D. Ariz. 1996). 14 15 16 PLAINTIFF'S CLAIMS UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 SHOULD BE DISMISSED. Plaintiff seeks damages against the President, federal defendants in their individual Dist., 940 F.2d 397, 405 (9th Cir. 1991) (requirements of Rule 9(b) must be followed in RICO actions alleging predicate acts of fraud); Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1530 (9th Cir.

17 capacity and/or federal entities for alleged violations of Title VI of the Civil Rights Act of 1964, 18 42 U.S.C. §§ 2000d, et. seq. and the regulations thereunder at 42 C.F.R. §§ 101, et. seq. This 19 claim fails. Title VI does not apply to programs conducted directly by federal agencies. Wise 20 v. Glickman, 257 F. Supp. 2d 123, 132 (D. D.C. 2003). Furthermore, Title VI relief is awardable 21 against entities, not individuals. Powers v. CSX Transp., Inc., 105 F. Supp. 2d 1295, 1311 (S.D. 22 Ala. 2000) ("The Court's research has located not a single case holding that an individual may 23 be sued in his individual capacity under Title VI.") Thus, plaintiff's damage claims based upon 24 Title VI and the regulations thereunder against the individual federal defendants fail to state a 25 (...continued) (9 Cir. 1992); Daly-Murphy v Winston, 837 F.2d 348, 356 (9th Cir. 1987). Additionally, Section 27 1983 "precludes liability in federal government actors." Morse v. North Coast Opportunities, Inc., 118 F.3d 1338, 1343 (9th Cir. 1997). 28 3 26
th 3

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1 claim upon which relief can be granted. Sims v. Unified Government of Wyandotte County, 120 2 F. Supp. 2d 938, 954 (D. Kan. 2000); Farmer v. Ramsay, 41 F. Supp. 2d 587,591-92 (D. Md. 3 1999). 4 5 Plaintiff seeks damages from the President and federal defendants in their individual 6 capacity under the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. §§ 2000bb, et. 7 8 of general applicability that is/are asserted to substantially burden his free exercise of religion. 9 42 U.S.C. §§ 2000bb(a)(2); 2000bb-1(a); 2000bb-3(a); Guam v. Guerrero, 290 F.3d 1210, 1222 10 11 346 F. Supp. 2d 122, 127 (D. D.C. 2004). Here, no such claim is pled. 12 Next, it is questionable as to whether RFRA authorizes individual capacity suits for 13 14 373-74 (D. N.J. 2004). That same court recognized that qualified immunity from suit was a 15 defense to such an action. The Ninth Circuit, in Kwai Fun Wong v. United States, 373 F.3d 952 16 17 18 19 A request for damages against the federal defendants in their official capacity would 20 run afoul of the United States' sovereign immunity. Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir. 1997). The United States (and its officers in their official capacity) are not sueable for damages 21 under RFRA. Tinsely v. Pittari, 952 F. Supp. 384, 389 (N.D. Tex. 1996). 22 The federal defendants maintain that no individual capacity damage suits should be permitted under RFRA. However, that analysis and argument is difficult and would be lengthy. 23 For purposes of this motion, the federal defendants argue that disposition on other grounds (immunity) is appropriate. 24 6 Numerous district courts have held that qualified immunity is a defense to an individual 25 damage suit against public employees sued under the Religious Land Use and Institutionalized Person Act ("RLUIPA"), 42 U.S.C. §§ 2000cc, et. seq.; Shabazz v. Virginia Dept. of 26 Corrections, 2005 WL 1026555 (W.D. Va. 2005); Young v. Goord, 2005 WL 562756 (E.D. N.Y. 2005); Collins-Bey v. Thomas, 2004 WL 2381874 (N.D. Ill. 2004). RLUIPA was enacted by 27 (continued...) 28 4
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PLAINTIFF, VIA HIS FIRST AMENDED COMPLAINT, FAILS TO PLEAD A COGNIZABLE RFRA CLAIM.

seq.4 The construct of RFRA suggests that plaintiff must point to a government's laws or rules

(9th Cir. 2002); Hartman v. Stone, 68 F.3d 973, 978 (6th Cir. 1995); Larsen v. United States Navy,

money damages. One court has held that it does.5 Jama v. U.S. I.N.S., 343 F. Supp. 2d 338,

(9th Cir. 2004) noted that no federal appellate court has decided whether qualified immunity is available as a defense to a federal official sued under RFRA.6 Id. at 977.

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With respect to qualified immunity to plaintiffs' RFRA claim, two inquiries are required:

2 (1) whether, taking facts most favorably to plaintiff, the defendants' conduct violated a 3 constitutional or statutory right, and (2) if a violation is found, whether the right was clearly 4 established at the time of the incident. Kwai Fun Wong v. United States, 373 F.3d at 966. Here, 5 plaintiff's first amended complaint, assuming the truth of the facts as alleged, does not make a 6 prima facie case that the federal defendants' acts or omissions violated RFRA. 7 8 The Torture Victim Protection Act of 1991 ("TVPA"), 28 U.S.C. § 1350 Note, was 9 enacted by Congress to carry out the intent of the Convention Against Torture and Other Cruel, 10 Inhuman or Degrading Treatment or Punishment (international law prohibitions against torture 11 and extrajudicial killing). In re Agent Orange Product Liability Litigation, 373 F. Supp. 2d 7, 12 110 (E.D. N.Y. 2005); Doe v. Qi, 349 F. Supp. 2d 1258, 1278 (N.D. Cal. 2004). The TVPA, 13 however, only provides a civil damage remedy against individuals who, under actual or apparent 14 authority, or color of law, of any foreign nation, subjects an individual to torture. The President 15 and the unnamed federal defendants act pursuant to the laws of the United States. Hence, 16 plaintiff cannot recover under the TVPA. Without the TVPA as an enforcement mechanism, the 17 Convention Against Torture by itself is not a statement of the law and does not support a cause 18 of action. See Carpa v. Smith, 82 A.F.T.R. 2d 98-5680 (1998 WL 723153) (D. Ariz. 1998) 19 (same result under United Nations Universal Declaration of Human Rights). 20 21 22 23 24 25 (...continued) Congress in response to the Supreme Court invalidation, in part, of RFRA. Hence, given the 26 language and background of both Acts, the trend in the district courts to permit a qualified recognition 27 immunity defense to RLUIPA actions supportsnot qualified, of the same defense in a RFRA action. As to the President of course, absolute, immunity applies. 28 5
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PLAINTIFFS' CONVENTION AGAINST TORTURE CLAIMS ARE SPECIOUS.

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PLAINTIFF'S MONEY DAMAGE CLAIMS AGAINST THE PRESIDENT ARE BARRED BY DOCTRINE OF ABSOLUTE IMMUNITY. The President of the United States of America is absolutely immune from plaintiff's

4 money damage claims allegedly arising from official acts in pursuit of the powers and 5 responsibilities of the President of the United States.7 Nixon v. Fitzgerald, 457 U.S. 731, 755 6 (1982); Sanders v. Bush, 15 F.3d 64 (5th Cir. 1994); In re Global Crossing, Ltd. Securities 7 Litigation, 314 F. Supp. 2d 172 (S.D. N.Y. 2003); Idrogo v. United States Army, 18 F. Supp. 2d 8 25 (D. D.C. 1998); International Siva Consciousness v. United States, 1993 WL 322862 (S.D. 9 N.Y. 1993). 10 11 12 PLAINTIFF'S REMAINING TIRADES AGAINST THE PRESIDENT AND THE GOVERNMENT DO NOT PRESENT COGNIZABLE CLAIMS FOR RELIEF. Much of plaintiff's first amended complaint is but his view of illegal activity by the

13 President and other present and former government officials. As the Ninth Circuit noted in Cato 14 v. United States, 70 F.3d 1103, 1109 (9th Cir. 1995), no plaintiff has standing "to complain 15 simply that their Government is violating the law." 16 17 CONCLUSION Based upon the foregoing analysis, the Court should strike plaintiff's first amended

18 complaint in its entirety or dismiss the action. 19 20 21 22 23 24 25 26
7 Plaintiff's claims against the President arising 27 his presidency are barred by the statutes of limitations. from alleged acts or omissions prior to 28 6

Respectfully submitted this 5th day of October, 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/Richard G. Patrick RICHARD G. PATRICK Assistant U.S. Attorney

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CERTIFICATE OF SERVICE I hereby certify that on October 5, 2005, I served the attached document by mail on the following, who are not registered participants of the CM/ECF System:

Charles August Schlund, III 4 8520 North 54th Drive Glendale, Arizona 85302 5 s/Diana Henson 6 ______________________________ U.S. Attorney's Office 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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