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Johnson v. United States Department of Justice

United States District Court, D. Maryland

September 2, 2016

JACK B. JOHNSON, JR. Plaintiff
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al. Defendants

          MEMORANDUM OPINION

          PETER J. MESSITTE UNITED STATES DISTRICT JUDGE.

         I.

         Plaintiff Jack B. Johnson, Jr. has brought suit, pro se, against Defendants United States Department of Justice (“USDOJ”), the Federal Bureau of Investigations (“FBI”), Prince George's County Police Department (“PGCPD”), TFO Sgt. Sean Chaney, Special Agent Wendy Hassett, and Special Agent Richard McFeely for alleged threats that appear to have been directed almost entirely at Plaintiff's father, Jack B. Johnson, Sr.

         This suit proceeds in six Counts:

Count I: Violation of Civil Rights Pursuant to 42 U.S.C. § 1983 (Against All Defendants)
Count II: Unlawful Conduct Pursuant to 42 U.S.C. § 14141 (Against All Defendants)
Count III: Conspiracy Against Rights as Defined in 18 U.S.C. § 241 (Against Defendants Chaney, Hassett and McFeely)
Count IV: Intentional Infliction of Emotional Distress (Against All Defendants)
Count V: Trespass to Land (Apparently Against All Defendants)
Count VI: Assault (Apparently Against Defendant Chaney Only)

         The matter is before the Court on Defendants' several Motions to Dismiss. ECF Nos. 27, 28.

         For the reasons that follow, the Court will GRANT WITH PREJUDICE the Motions to Dismiss of all Defendants (except Defendant Chaney) as to Counts I through VI; the Court will GRANT WITH PREJUDICE the Motion to Dismiss of Defendant Chaney as to Counts I through III; and the Court will DEFER ruling on the Motion to Dismiss as to Counts IV through VI as to Defendant Chaney, pending the filing of a certificate by the United States with respect to Defendant Chaney pursuant to 28 U.S.C. § 2679(d)(1), insofar as the United States is prepared to take the position that Defendant Chaney was, at all relevant, times a federal employee acting within the scope of his employment.

         II.

         Plaintiff's claims arise out of four incidents that purportedly occurred in 2010 and 2011, more or less the same time that Plaintiff's father, Jack B. Johnson, Sr., former County Executive of Prince's George's County, pleaded guilty to and was sentenced in relation to charges of extortion in violation 18 U.S.C. § 1951, and witness and evidence tampering in violation of 18 U.S.C. § 1512(b)(2)(B). See United States v. Jack Johnson, No. 11-cr-00075-PJM; see also 3d Am. Compl. ¶¶ 11, 13, 22, 32, ECF No. 26-1. Plaintiff submits that Defendants were involved in the “federal probe and sting operation” against his father, which consisted of collaboration among officials from the PGCPD, the FBI, and the U.S. Attorney's Office. Id. ¶ 5-9, 18. Special Agents Hassett and McFeely, whose individual liability is sought, are alleged to have worked on behalf of the FBI, while TFO Sgt. Chaney - also sued in his individual capacity - “upon information and belief, is a member of the PGCPD and engages in special task force work with the FBI.” Id. ¶ 7-9. Defendant Chaney is alleged to have been “behind” all the reported incidents. Id. ¶¶ 7, 8-9.

         As to the first incident, the Third Amended Complaint alleges that on the night of October 30, 2010 and morning of October 31, 2010, in front of a church in Laurel, Maryland, Defendants hung a “graphically detailed effigy of an African-American politician” and wrote “explicitly degrading and racially charged language and symbols including swastikas.” Id. ¶¶ 19-20. Plaintiff avers that, according to the police report, the racially charged language included as follows: “Death to Niggers, ” “Fuck Osama, Fuck Obama, Fuck Yo Gorilla Mama, ” “Black Devil, ” “Fuck Allah” and “Nappy Halloween.” Id. ¶ 21. Defendants purportedly engaged in this offensive conduct in anticipation of the sting operation that was to be carried out the next day against Plaintiff's father, Jack Johnson, Sr. Id. ¶¶ 19, 22-26. The incident was reported to local law enforcement officials, the Secret Service, and the FBI, which classified it as a hate crime. Id. ¶ 21. Plaintiff claims that Defendant Chaney was responsible for the incident because, among other reasons, a grey, four-door Chevrolet-the type of car “Defendants do use and have access to”-was observed near the scene for several hours prior. Id. ¶ 25.

         As to the second incident, the Third Amended Complaint states that, on November 15, 2010, a “threatening” greeting card that was addressed to “Jack Johnson” and was mailed to Jack Johnson, Sr.'s home, contained a handwritten message: “Cpl. Partenza, Cpl. Eli, PGPD, Hope you Get Raped in Prison, Karma is a Bitch.” Id. ¶ 30. The card referenced two Prince George's County police officers whom Mr. Johnson, Sr., a former Prince George's County State's Attorney, had apparently prosecuted in an earlier case. ECF No. 26-1 ¶¶ 29-31. Plaintiff claims to have received the letter because he was responsible for retrieving his parents' mail at their home after they were arrested. Id. ¶ 28.

         The third incident purportedly occurred on December 27, 2011-approximately three weeks after Jack Johnson, Sr. was sentenced-when Plaintiff received a “threatening” card at Plaintiff's home address of 4709 Tecumseh St., Berwyn Heights, MD 20740.[1] Id. ¶ 32. The card was purportedly addressed to “Jack B. Johnson and family, ” and included the names of Plaintiff's mother and brother.[2] Id. ¶ 38. The card contained the message: “Fuck u all…u will all die Burn In Hell!” Id. Plaintiff alleges that the card was particularly threatening because, among other things, it was placed in his locked mailbox without a return address or metered stamp. Id. ¶¶ 33-34. Plaintiff, on information and belief, alleges that it was Defendant Chaney who wrote the letter and then delivered it by breaking into his condominium complex and mailbox. Id. ¶ 35.

         The fourth and final incident purportedly occurred on December 28, 2011 and involved a letter written on Prince George's County Government letterhead from Largo Government Center at 9201 Basil Court, Landover, Maryland 20785. Id. ¶ 39. Although the Third Amended Complaint is not explicit, it appears that the letter was sent to the home of Jack Johnson, Sr., not to Plaintiff's home. Id. ¶ 27-28, 38; ECF No. 30-1 at 1. The letter contained four pieces of fake or “monopoly type” money with offensive and threatening notes written on the back as follows: (1) “Fuck U Jack U always hated white people Ha Ha, ” (2) “Fuck U Jack, Rot in Jail, ” (3) “Fuck U Jack get fuc'd in the ass for the rest of ur Life, ” and (4) “Ur mommy burns in hell she should have abort U.” ECF No. 26 ¶ 40. Plaintiff asserts that Defendant Chaney also sent this “threatening” mailing. Id. ¶ 41.

         Plaintiff claims that handwriting analysis and DNA evidence linking the three mailings has led him to conclude that Defendant Chaney was the author of these writings.[3] Id. ¶¶ 42-47; Pl.'s Resp. Opp. Defs.' Mots. Dismiss, Ex. A, B, C, ECF No. 30. While Chaney appears to be the Defendant of primary concern, the Third Amended Complaint asserts that the other Defendants “knew or should have known Defendant Chaney's unlawful actions” or in some fashion participated in carrying out the actions. Id. ¶ 48.

         On February 25, 2016, the Court issued a Memorandum Order directing Plaintiff to show cause within thirty days why his suit should not be dismissed, in part or in whole, for lack of standing. See ECF No. 36. The Order indicated that at least three incidents-those occurring on October 30, 2010, November 15, 2010, and December 28, 2011-clearly targeted Jack Johnson, Sr. rather than Plaintiff. Id. Thus, it was not clear to the Court on what legal basis Plaintiff was asserting personal harm based on threats purportedly made to his father, Jack Johnson, Sr.

         In his Response to the Show Cause Order, Plaintiff argued that he had standing based on the December 27, 2011 mailing, which was delivered to his mailbox at his home address, rather than to his father's address. Pl.'s Resp. Show Cause, ECF No. 37. While he repeats his contention that he “was also charged with retrieving mail for his parents, ” Plaintiff's Response largely focuses on this single incident. Id. He appears to concede that he lacks standing to pursue claims based on the other three incidents. See id.

         There is, therefore, no need for extended analysis. Clearly Plaintiff lacks standing to pursue in his own name actions purportedly targeting his father. All alleged injuries to Jack Johnson, Sr. alone will be dismissed with prejudice as to all Defendants.

         The facts alleged regarding the mailing sent on December 27, 2011 stand on a different footing. The “threatening” card was allegedly delivered to Plaintiff's home address and placed in his mailbox. The message on the card is also less clearly directed at Johnson, Sr. since the card is said to have been addressed to “Jack B. Johnson and family, ” and included the names of Plaintiff's mother and brother. 3d Am. Compl. ¶ 38. The card contained sentiments directed at “all, ” such as “u will all die.” Id. This chain of events would unquestionably demonstrate the requisite injury-in-fact to establish standing on Plaintiff's part. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 473 (1982); Carpenter v. Barnhart, 894 F.2d 401 (4th Cir. 1990). Plaintiff surmises on information and belief, that it was Defendant Chaney who delivered the card by breaking into Plaintiff's condominium complex and into Johnson's locked mailbox. Id. ¶ 35.

         Given that at this stage of the proceedings it must accept as true the allegations of the Third Amended Complaint, the Court finds these facts sufficient to sustain Plaintiff's burden of proving that he has standing to pursue claims arising out of the events of December 27, 2011.

         III.

         As to the incident of December 27, 2011, then, the Court turns to Defendants' Motions to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) (lack of subject ...


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