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Moseley v. Pallozzi

United States District Court, D. Maryland

February 1, 2019

STEVEN MOSELEY, Plaintiff,
v.
COLONEL WILLIAM PALLOZZI, et at, Defendants.

          MEMORANDUM OPINION

          Richard D. Bennett United States District Judge.

         Pro se Plaintiff Steven Moseley ("Plaintiff' or "Moseley") brings this action seeking to enjoin the United States of America, the Maryland State Police, and the Maryland Department of Human Resources from subjecting him to investigation, surveillance, and harassment. On March 27, 2017, this Court dismissed Moseley's prior efforts to obtain such relief because of his failure to properly summon the named Defendants. (No. ELH-17-0328, ECF No. 5.) Plaintiffs current lawsuit names the Maryland State Police, Colonel William Pallozzi, the Maryland Department of Human Resources, Secretary Lourdes R. Padilla, and former United States Attorney General Jeff Sessions as Defendants.

         The United States of America, on behalf of former United States Attorney General Jeff Sessions, has filed a Motion to Dismiss (ECF No. 10). The Maryland Department of Human Services[1] and the Maryland State Police (together, the "State Defendants") have also filed a Motion to Dismiss (ECF No. 14). Having reviewed the motions, no hearing is necessary. See Local Rule 105.6 (D. Md. 2018). For the reasons set forth below, the United States' Motion to Dismiss (ECF No. 10) is GRANTED and the State Defendants' Motion to Dismiss (ECF No. 14) is GRANTED. This case shall be DISMISSED as to all Defendants.

         BACKGROUND

         In ruling on a motion to dismiss, this Court "accept[s] as true all well-pleaded facts in a complaint and construe[s] them in the light most favorable to the plaintiff." Wikimedia Found. v. Nat' Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017) (citing SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 422 (4th Cir. 2015)). As a pro se Plaintiff, this Court has "liberally construed" Moseley's pleadings and held them to "less stringent standards than formal pleadings drafted by lawyers." Erickson v. tardus, 551 U.S. 89, 94 (2007); Alley v. Yadkin County Sheriff Dept, No. 17-1249, 698 Fed.Appx. 141, 2017 WL 4415771 (4th Cir. Oct. 5, 2017). Additionally, this Court takes proper judicial notice of "docket entries, pleadings and papers in other cases" in reciting the background of this case. Brown v. Ocwen Loan Servicing, LLC, PJM-14-3454, 2015 WL 5008763, at *1 n.3 (D. Md. Aug. 20, 2015), aff'd, 639 Fed.Appx. 200 (4th Cir. 2016).

         This is not Moseley's first lawsuit alleging unlawful acts by the United States, the Maryland State Police, and the Maryland Department of Human Resources. On February 3, 2017, he commenced a lawsuit in this Court against the same Defendants, alleging acts of "cyber terrorism and terrorist acts conducted by contracted actors." (ELH-17-0328, ECF No. 1.) After failing to provide summons for the named Defendants, this Court dismissed Moseley's Complaint without prejudice and subsequently denied his Motion to Reopen the case. (ECF Nos. 4, 8.)

         In this action, Moseley states that he "believes he was some how falsely labeled, and came under investigation (under fabricated pretenses).. . since November 2010 for unknown reasons." (ECF No. 1, at ¶ 7.) He alleges that Defendants have committed "covert acts of cyber terrorism," subjected him to home invasions, placed him under 24/7 surveillance, and used "contracted actors" to harass him. (Id. at ¶ 20.) Because of these acts, Moseley claims that he has been unable to maintain employment. (Id. at ¶ 21.) The Complaint attaches an April 17, 2012 Cease and Desist Letter directed to the Maryland State Police, Office of the Superintendent, which asks the Police to restore his internet access on all platforms. (ECF No. 1-2.) Moseley brings several legal claims[2] and petitions this Court to enter a Preliminary Injunction, a Show Cause Order, and a Declaratory Judgment. He does not seek monetary damages.

         On July 17, 2018, the United States filed a Motion to Dismiss Moseley's claims (ECF No. 10). On August 16, 2018, the State Defendants filed their Motion to Dismiss (ECF No. 14.) Despite receiving correspondence from the Clerk of Court warning that his lawsuit might be subject to dismissal, Moseley has not responded to the Motions. (ECF Nos. 11, 15.)

         STANDARD OF REVIEW

         As a general matter, when a litigant proceeds pro se, their filings should be "liberally construed" and "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted).

         I. Motion to Dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1).

         A court grants a motion to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) "where a claim fails to allege facts upon which the court may base jurisdiction." Davis v. Thompson, 367 F.Supp.2d 792, 799 (D. Md. 2005). "When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff." Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Or. 1991), citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). In evaluating a challenge to the court's subject-matter jurisdiction, the district court is permitted to "consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, 945 F.2d at 1219.

         II. Motion to Dismiss for Insufficient Service of Process under Rule 12(b)(5).

         A motion to dismiss for insufficient service of process is permitted by Federal Rule 12(b)(5). "Once service has been contested, the plaintiff bears the burden of establishing the validity of service pursuant to Rule 4." Parker v. Am. Brokers Conduit, 179 F.Supp.3d 509, 515 (D. Md. 2016) (citing O'Meara v. Waters,464 F.Supp.2d 474, 476 (D. Md. 2006)). While in some cases the failure to strictly comply with Rule 4 may not invalidate service of process if the defendant acquires actual notice of the pending action, the plain requirements for effecting service of process may not be ignored. Arm ...


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