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Ndiaye v. Baker

United States District Court, D. Maryland, Southern Division

September 9, 2014

Elhadji Ndiaye, Plaintiff,
Rushern L. Baker, III, et al., Defendants.


PAUL W. GRIMM, District Judge.

Elhadji Ndiaye felt that he was the target of government surveillance because of his religion and national origin. Proceeding pro se, he filed a complaint against James R. Clapper, Director of National Intelligence; Lieutenant General Keith B. Alexander, Director of the National Security Agency and Chief of the Central Security Service; United States Attorney General Eric Holder; and Robert S. Muller, III, former director of the Federal Bureau of Investigation (collectively, the "Federal Defendants"); as well as Rushern L. Baker, III, County Executive for Prince George's County; and Bowie Mayor G. Frederick Robinson. Compl., ECF No. 1. Defendants moved to dismiss for failure to state a claim, ECF Nos. 7, 12, 31, and Ndiaye filed an Amended Complaint, ECF No. 41. I now must determine whether he has stated a claim in his Amended Complaint or if I should dismiss it, as Defendants all urge.[1] Because the Amended Complaint includes only conclusory allegations and fails to allege that any defendant took any specific action, I will dismiss the Amended Complaint in its entirety.


Ndiaye, who states that he is from West Africa but does not identify his country of origin, claims that Defendants "engage[d] in a policy and practice [o]f targeting the plaintiff because of his adherence and practice of the religion of Islam and his national origin." Am. Compl. 1-2. Specifically, he claims that Defendants "secretly engaged in a government surveillance program under the section 215 of the [P]atriot Act [50 U.S.C. § 1861(a)(1)], against the plaintiff for more th[a]n 6 years" and "listed the plaintiff in the WATCH LIST, based [s]olely on a bias, discriminatory, and crude stereotypes policy and the sharing of factually incorrect and bigoted biased with unknow[n] numbers of federal, state and local government agencies." Id. at 5. He alleges that he was the "target of numerous police activities [including] wiretapping, warrantless searches, and an array of harassing dirty tricks' designed to deter pre terrorist crime." Id. Plaintiff claims that Defendants "collect[ed], listen[ed] [to] and [acquired] plaintiffs [sic] phone calls, internet records, [c]redit card transactions and daily life actions.... based solely on what the plaintiff looks like, his religious beliefs, and his ethnic [o]rigin." Id. at 1. He also alleges that a police officer called him "monkey and horse." Id. at 6.

Ndiaye claims that he "contacted many officials for help, " including "the Inspector general, " "the FBI, " and "the Bowie mayor." Id. at 5. He does not allege how they responded to his requests.

According to Plaintiff, the alleged surveillance amounted to "bullying, slander, harassment and cointelpro [ sic ]" and "ke[pt] him from holding a job." Am. Compl. 6. He insists that Defendants' actions "violated the equal protection clause." Id. at 1. He alleges that Defendants violated 5 U.S.C. § 706 by "exceed[ing] the authority granted by 50 U.S.C. § 1861." Am. Compl. 6. In his Prayer for Relief, Plaintiff lists, without explanation, the First and Fourth Amendments to the United States Constitution, 50 U.S.C. §§ 1809 & 1810, 18 U.S.C. §§ 2511, 2520, 2702 & 2707(b)(1); and 47 U.S.C. § 605. Am. Compl. 7. He asks the Court to declare Defendants' actions unlawful; "to enjoin the Defendants from continuing this bias[ed], racial, religious secret surveillance"; and to "require the defendants to purge from its databases all records related to the plaintiff." Id. at 2.


Federal Rule of Civil Procedure 12(b)(6) provides for "the dismissal of a complaint if it fails to state a claim upon which relief can be granted." Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule's purpose "is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.'" Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). To that end, the Court bears in mind the requirements of Fed.R.Civ.P. 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), and must state "a plausible claim for relief, " as "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, " Iqbal, 556 U.S. at 678-79. See Velencia, 2012 WL 6562764, at *4 (discussing standard from Iqbal and Twombly). "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." Iqbal, 556 U.S. at 663.

Plaintiff is proceeding pro se, and his Amended Complaint is to be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972). However, liberal construction does not absolve Plaintiff from pleading plausible claims. See Holsey v. Collins, 90 F.R.D. 122, 128 (D. Md.1981) (citing Inmates v. Owens, 561 F.2d 560, 562-63 (4th Cir.1977)).

It is neither unfair nor unreasonable to require a pleader to put his complaint in an intelligible, coherent, and manageable form, and his failure to do so may warrant dismissal. District courts are not required to be mind readers, or to conjure questions not squarely presented to them.

Harris v. Angliker, 955 F.2d 41, 1992 WL 21375, at * 1 (4th Cir. 1992) (per curiam) (internal citations omitted).


Baker argues that the Amended Complaint must be dismissed because it "fails to identify what, if any, actions or omissions [Baker] committed" and "fails to set forth any basis for attributing liability to Rushern Baker, III for any alleged unlawful conduct." Baker 1st Mot. 2. Robinson also argues that Plaintiff fails to show any acts that he committed or other basis for his liability. Robinson Mem. 2. While noting that, in the Amended Complaint, Plaintiff now "specifically states that Plaintiff contacted' [Robinson], " Robinson contends that "[t]here is nothing actionable about that allegation, which does not even say anything about what, if any, response there was from him." Id.

According to the Federal Defendants, Plaintiff does riot "allege any specific act undertaken by any of the individual Federal Defendants" or "any specific, concrete facts to support any of his claims of harm or injury, " and he does not identify any "specific instance where he suffered any specific harm." Fed. Defs.' 1st Mem. 2, ECF No. 31-1. They contend that, "[w]hile he claims he was followed into various businesses, slandered, harassed, and subjected to "abusive surveillance, " he fails to mention where, when, how, or by whom any of this occurred." Id. at 6. ...

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