Walsh v. Comey , 118 F. Supp. 3d 22 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RORY M. WALSH,
Plaintiff,
v. Civil Action No. 15-348 (JEB)
FBI DIRECTOR JAMES B. COMEY, JR.,
et al.,
Defendants.
MEMORANDUM OPINION
Pro se Plaintiff Rory Walsh filed this action against the United States, the Federal Bureau
of Investigation, and a cohort of high-ranking government officials. He alleges a fantastical
farrago of facts stemming from a purported decades-long government conspiracy that includes
harassment, surveillance, break-ins to his house, intimidation, defamation, tampering with his
prescription medication, and so on. This, moreover, is hardly Walsh’s first journey into court.
On the contrary, he has filed suit numerous times over the last decade, each time crossing the
boundaries of imagination into another dimension. All of those actions have been unsuccessful,
and this one is no different.
Believing his claims patently insubstantial, the Court will grant Defendants’ Motion to
Dismiss under Federal Rule of Civil Procedure 12(b)(1). In addition, to further conserve judicial
and governmental resources, the Court will require Walsh to show cause why a pre-filing
injunction should not issue.
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I. Background
This time around, Walsh named as Defendants FBI Director James Comey; several other
high-level FBI officials; an Assistant United States Attorney; James L. Jones, the former U.S.
Marine Corps General and National Security Advisor; the FBI; and the United States. He alleges
a number of disjointed causes of action, all deriving from a long-running government-wide
conspiracy. More specifically, according to Walsh, the FBI used warrantless surveillance to
gather the “intelligence” that he and his family were going out for dinner and to rent a movie,
and it then passed this “intelligence” along to Jones, who then drove from Virginia to
Pennsylvania to “strike at the Walsh’s [sic].” Compl. at 3. Walsh further claims that Jones
“lunged twice” at him, but Plaintiff “held his sons back.” See id. Upon attempting to “file [a]
complaint” about this incident with a magistrate judge, Walsh claims that the FBI interfered and
prevented Jones from being arrested. See id. at 3-4. The Bureau also allegedly “took
jurisdiction over Jones’s crime, [and] also seized all evidence.” Id. at 17. The FBI purportedly
“tail[s] Walsh everywhere [and] break[s] into his car.” Id. at 7. It even “posted gunmen in
[Walsh’s] parking lot . . . . [;] two armed FBI agents exited their vehicle as if on cue, and
attempted to create an incident with [Walsh and his son.] No warrant, no arrest, just open armed
intimidation.” Id. at 14.
This is just the beginning, however. Plaintiff also asserts that the FBI “routinely
intercepts the US Mails, FEDEX, and threatens and intimidates postal workers (specifically
Doug Creech of the Dallastown Post Office) as [the FBI agents] commit their crimes.” Id at 5.
One of those “intercepted” letters was a message Plaintiff attempted to transmit to President
Obama, repeating the allegations contained in his Complaint, and urgently requesting an
audience with the President and Attorney General. See id. at 22; id., Exh. aa (Letter of Feb. 28,
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2015) at 2. In that letter, Walsh offered “to testify on the Senate floor, and on national TV over
Jones [sic] incredible crime spree against my family and his continual abuse of the FBI” and
noted that he could “be at the White House in a day” if the President granted his request for an
audience. See Letter of Feb. 28, 2015 at 2. He similarly claims that the FBI interferes with and
intercepts his communications with his Congressman. See ECF No. 40 (Motion for
Reconsideration) at 11-12.
Plaintiff also believes that the FBI is interfering with his and his family’s medical
treatment by dispatching agents to break into his house and “obnoxiously chop up multiple pills,
in a blatant demonstration that [Special Agent in Charge George C.] Venizelos and the FBI think
they are above the law.” Compl. at 8. To “prove” this claim, he produced a dark photograph of
what appear to be some broken pills next to other whole pills. See id., Exh. H (image captioned:
“Numerous Pills OBNOXIOUSLY Chopped by the FBI”). Walsh also charges the FBI with
repeatedly delaying his payments for his son’s oral surgery, though it is unclear how the FBI is
alleged to have accomplished this. See id. at 9.
Jones and the FBI, finally, ostensibly conspire together to dictate court actions through a
“secret conduit for ex parte communications.” Id. at 18 (“Most troubling, Jones also uses the
FBI, that protect federal judges, as his secret conduit to dictate court action.”). Relying on these
facts, he brings claims under the Fourth and Fifth Amendments, various criminal statutes, the
Federal Tort Claims Act, several state statutes, and he seeks three million dollars in
compensation. See id. at 10-12.
Defendants have now moved to dismiss Plaintiff’s Complaint.
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II. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(1), a court must dismiss a claim for relief
when the complaint “lack[s] . . . subject-matter jurisdiction.” To survive a motion to dismiss
under Rule 12(b)(1), a plaintiff bears the burden of proving that the Court has subject-matter
jurisdiction to hear its claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992);
U.S. Ecology, Inc. v. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). A court has an
“independent obligation to determine whether subject-matter jurisdiction exists, even in the
absence of a challenge from any party.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006).
“For this reason ‘the [p]laintiff’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.”
Grand Lodge of the Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13-14 (D.D.C.
2001) (alterations in original) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1350 (2d ed. 1987)). Additionally, unlike with a motion to dismiss
under Rule 12(b)(6), the Court “may consider materials outside the pleadings in deciding
whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharms. v. FDA,
402 F.3d 1249, 1253 (D.C. Cir. 2005); see also Venetian Casino Resort, L.L.C. v. EEOC, 409
F.3d 359, 366 (D.C. Cir. 2005) (“[G]iven the present posture of this case – a dismissal under
Rule 12(b)(1) on ripeness grounds – the court may consider materials outside the pleadings.”);
Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).
III. Analysis
The Court will first discuss the propriety of dismissal under Rule 12(b)(1) and then
address the question of whether a pre-filing injunction should issue.
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A. Rule 12(b)(1) Dismissal
Defendants move to dismiss on a number of grounds, but submit that the entire case may
be dismissed for lack of subject-matter jurisdiction. See Mot. at 7 n.7. Although this is a tool
seldom employed, a court can invoke Rule 12(b)(1) to dismiss a plaintiff’s complaint that is
“‘patently insubstantial,’ presenting no federal question suitable for decision.” Best v. Kelly, 39
F.3d 328, 330 (D.C. Cir. 1994) (quoting Neitzke v. Williams, 490 U.S. 319, 327 n.6 (1989)).
This standard requires that the “claims be flimsier than ‘doubtful or questionable’ – they must be
‘essentially fictitious.’” Id. Claims that fall into this category include “bizarre conspiracy
theories, any fantastic government manipulations of [the] will or mind, [and] any sort of
supernatural intervention.” Id. As a general rule, this procedural vehicle is “reserved for
complaints resting on truly fanciful factual allegations,” while 12(b)(6) dismissals “cull legally
deficient complaints.” Id. at 331 n.5.
Countless courts have applied this standard and dismissed cases involving scenarios more
appropriate to Rod Serling’s “The Twilight Zone.” See e.g., Tooley v. Napolitano, 586 F.3d
1006, 1009 (D.C. Cir. 2009) (claims of “[r]ound-the-clock [unlawful FBI] surveillance” held
“not realistically distinguishable from allegations of ‘little green men’”); Odemns v. Wal-Mart
Stores, Inc., No. 14-1790, 2015 WL 2120634, at *2 (D.D.C. May 6, 2015) (claim that numerous
corporate defendants “implanted a ‘multifunctional’ nano-chip that acts as ‘a recorder’ and a
‘transmitter’ in order to ‘record [Plaintiff’s] thoughts, dreams, words, concepts, and behaviors’”);
Backus v. Placer Cnty., No. 12-46, 2012 WL 2562358, at *1 (E.D. Cal. June 29, 2012)
(conspiracy claim that government was using plaintiff as “test subject” for “RF wave, microwave
and laser assault systems of invisible warfare” and was using “Electronic Monitoring by the use
of cyber computer programs which use the cell phone system like radar to locate, stalk and
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assault”); Gonzalez v. City of Fresno, No. 11-1458, 2012 WL 174959, at *3 (E.D. Cal. Jan. 20,
2012) (government-wide conspiracy of surveillance, computer hacking, home break-ins, and
intimidation); Rogers v. Obama, No. 12-2652, 2012 WL 5356046, at *1 (E.D. Cal. Oct. 30,
2012) (conspiracy theory alleging that President Obama and the First Lady infected plaintiff with
shingles and committed a list of serious felonies against her); Wilson v. Obama, 770 F. Supp. 2d
188, 192 (D.D.C. 2011) (pro se veteran claiming that “‘Barack Obama and some of his cohorts’
interrogated him . . . regarding ‘military information concerning [his] past obligation to the
submarine fleet,’” which caused his landlord to evict him from his apartment); Bickford v. Gov’t
of United States, 808 F. Supp. 2d 175, 178 (D.D.C. 2011) (FBI and cross-government conspiracy
to surveil and harass plaintiff and her minor child, interfere with her medical treatment, and
intercept her mail and other communications); Baszak v. FBI, 816 F. Supp. 2d 66, 67 (D.D.C.
2011) (FBI “engaging in long-term and warrantless surveillance through ‘intrusive techniques
such as video and mental surveillance . . . ’”); Riles v. Geithner, 693 F. Supp. 2d 1, 2 (D.D.C.
2009) (government officials “are using mind-reading technology to surveil and investigate
[plaintiff’s] private affairs, including his sexual habits and his financial dealings; to sabotage his
relationships. . .”); Roum v. Bush, 461 F. Supp. 2d 40, 46 (D.D.C. 2006) (CIA and FBI
conspiracy to poison plaintiff and implant chip in his body, surveil and attempt to assassinate
him, and place “radioactive nano-particles” in household items, such as his toothpaste); Williams
v. Holiday Inn Washington, DC on the Hill, 295 F. Supp. 2d 27, 28 (D.D.C. 2003) (conspiracy
claim against hotel for attempting to assassinate plaintiff by way of poisoned hamburger, and
seeking relief from “neurological manipulation” by all defendants).
Here, Plaintiff’s claims resemble many of those found insubstantial under the Best v.
Kelly standard. Walsh alleges a decades-long, government-wide conspiracy targeting him and
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perpetrated by numerous high-level government officials. He suspects that the government
intercepts his mail and communications, see Bickford, 808 F. Supp. 2d at 178, interferes with his
prescription medications, see id., constantly surveils and harasses him and his family, see
Tooley, 586 F.3d at 1009, attempts to assassinate him, see Williams, 295 F. Supp. 2d at 28,
breaks in to his home, see Gonzalez, 2012 WL 174959, at *3, and even substitutes his toothpaste
with another undesirable substance. See Roum, 461 F. Supp. 2d at 46.
Indeed, in a practically identical iteration of this suit in 2012, Chief Judge Richard W.
Roberts dismissed the case in its entirety, relying heavily on Rule 12(b)(1):
Here, Walsh’s FTCA and constitutional claims all center around
the alleged conspiracy. Walsh suggests that the conspiracy spans a
number of states and over 20 years, involves an “ultra secret”
government agency, surveillance through a clandestine,
international system of unknown capabilities and questionable
existence, harassment, and numerous murder attempts. This is the
sort of bizarre conspiracy theory that warrants dismissal under the
Best v. Kelly standard. Defendants’ Rule 12(b)(1) motions to
dismiss as frivolous Walsh’s FTCA and Fourth, Fifth, and Sixth
Amendment claims will be granted.
Walsh v. Hagee, 900 F. Supp. 2d 51, 58-59 (D.D.C. 2012). The D.C. Circuit summarily
affirmed this decision in an unpublished opinion. See Walsh v. Hagee, No. 12-5367, 2013 WL
1729762, at *1 (D.C. Cir. Apr. 10, 2013).
Were this suit the only evidence before the Court, Rule 12(b)(1) dismissal would be
warranted. Yet, as the Court has mentioned, this action is merely the latest installment in a series
that has run longer than Serling’s ever did. Some examples of prior incarnations have proceeded
thus:
• Walsh v. United States, No. 05-818, 2015 WL 1299584, at *2 n.2 (M.D. Pa. Mar.
23, 2015) (He alleged that James Jones and Naval Intelligence officers broke into
his house, stole various items, and placed him under constant surveillance. The
court found that Walsh’s motion to re-open the action “lack[ed] merit” and noted
that he “provide[d] no evidence in support of his averments.”);
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• Walsh v. George, No. 14-1503, 2015 WL 404125, at *2, *8 (M.D. Pa. Jan. 29,
2015), (He alleged that James Jones and the FBI “‘stalked and struck’ at Walsh
and his family,” intercepted his correspondence, and publicly slandered him. The
court took notice of the many prior unsuccessful suits he had filed and denied his
motion to amend his claim as “futile.”);
• Walsh v. Jones, No. 13-928, 2014 WL 8763339, at *1 (D.D.C. June 3, 2014),
aff’d, No. 14-5221, 2015 WL 1606937 (D.C. Cir. Mar. 13, 2015) (He alleged that
James Jones and the Secret Service unlawfully broke into his house, smashed his
furniture, and chopped his prescription medication. See ECF No. 1 (Complaint)
at 4. The Court held that “there is no factual basis whatsoever” for the suit and
found it to be “simply another frivolous claim based on a bizarre government
conspiracy theory dismissed by Judge Roberts.” ECF No. 74 (Order Denying
Plaintiff’s Motion for TRO) at 1.);
• Walsh v. United States, 571 F. App’x 109, 110-11 (3d Cir. 2014) (He alleged that
James Jones, the U.S. Navy, and numerous other government officials: opened
his personal mail, attempted to murder him by poisoning him with arsenic,
attempted to frame him for espionage, broke into his home and stole several
items, and stalked him and his son. The Third Circuit held that the district court
did not abuse its discretion in denying his motion to re-open his case as
meritless.);
• Walsh v. Hagee, 10 F. Supp. 3d 15, 17-20 (D.D.C. 2013), aff’d, No. 14-5058,
2014 WL 4627791 (D.C. Cir. July 11, 2014) (He alleged that former Marine
Corps Commandant Michael Hagee, Director of National Intelligence James
Clapper, and many others conspired to harass and assault him and his family.
The court denied all of his motions for reconsideration of its previous dismissal
of his “bizarre government conspiracy theory” for lack of subject matter
jurisdiction.);
• Walsh v. Hagee, 900 F. Supp. 2d 51, 54-55 (D.D.C. 2012), aff’d, No. 12-5367,
2013 WL 1729762 (D.C. Cir. Apr. 10, 2013) (He alleged that Michael Hagee and
an “ultra secret” government agency placed him under surveillance and
attempted to assassinate him on multiple occasions. The court dismissed the case
in its entirety, relying heavily on Rule 12(b)(1).); and
• Walsh v. United States, No. 05-818, 2008 WL 2412968, at *2 n.11 (M.D. Pa.
June 10, 2008), aff’d, 328 F. App’x 806 (3d Cir. 2009) (He alleged that James
Jones and many others conspired to break into his house, steal his belongings,
assault him, monitor his communications, and tamper with his medications. The
court found that “Walsh’s evidence is woefully insufficient for a reasonable jury
to conclude that [Defendant] Jones was involved in the alleged conduct.”).
Informed by all of these similarly frivolous claims, the Court is even more convinced that
a Rule 12(b)(1) dismissal should result here.
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B. Pre-Filing Injunction
A mere dismissal here, however, will apparently do little to dissuade Plaintiff from
mounting his hobby horse again in the future. Yet the Court’s hands are not tied: in rare cases, it
may issue a pre-filing injunction precluding a plaintiff from filing suit without prior leave of
court. Although Defendants have not sought this remedy, the Court “has an obligation to protect
the ‘orderly and expeditious administration of justice,’” In re Powell, 851 F.2d 427, 430 (D.C.
Cir. 1988) (internal citation omitted), and may thus consider the matter sua sponte:
The constitutional right of access to the courts . . . is neither
absolute nor unconditional. Courts in this and other circuits have
been required to respond to prolific pro se litigants with
determination and imagination. [I]n fashioning a remedy to stem
the flow of frivolous actions, a court must take great care not to
unduly impair[ ] [a litigant’s] constitutional right of access to the
courts. If a litigant, however, continues to abuse the judicial
process by filing frivolous, duplicative, and harassing lawsuits, a
Court may employ injunctive remedies to protect the integrity of
the courts and the orderly and expeditious administration of justice.
Caldwell v. Obama, 6 F. Supp. 3d 31, 49 (D.D.C. 2013), appeal dismissed, No. 14-5085 (D.C.
Cir. July 24, 2014) (internal citations and quotations omitted).
In this Circuit, prior to issuing a pre-filing injunction, a court ordinarily follows a three-
step process: (1) it provides notice and the opportunity to be heard, (2) it develops a record for
review that considers “both the number and content of the [plaintiff’s] filings,” and (3) it
“make[s] substantive findings as to the frivolous or harassing nature of the litigant’s actions.”
Smith v. Scalia, 44 F. Supp. 3d 28, 46 (D.D.C. 2014) (internal citation omitted), aff’d, No. 14-
5180 (D.C. Cir. Jan. 14, 2015).
The Court, by Order accompanying this Memorandum Opinion, thus provides Plaintiff
with notice and an opportunity to show cause why an injunction precluding him from filing in
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this and any other federal court absent leave of this Court should not issue. Should he fail to
show cause in briefing and at a hearing on the issue, this Court shall issue a pre-filing injunction.
IV. Conclusion
For the foregoing reasons, the Court will issue a contemporaneous Order granting
Defendants’ Motion to Dismiss and requiring Plaintiff to show cause why a pre-filing injunction
should not issue.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: July 13, 2015
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