United States District Court, D. Maryland
XINIS UNITED STATES DISTRICT JUDGE.
Mark Downey, filed the above-captioned Complaint on June 25,
2019, together with a Motion for Leave to Proceed in Forma
Pauperis, to Quash Sovereign Immunity, to Accommodate the
Disabled, to Seal, and to Refer Criminal Case to the United
States Attorney. ECF Nos. 2, 3. Because Downey appears
indigent, his Motion to Proceed in Forma Pauperis is granted.
ECF No. 2 at pp. 4-6. Below, the Court addresses the
remaining motions and the legal sufficiency of the Complaint.
has filed a 93-page Complaint that, as best the Court can
discern, is a qui tam action brought pursuant to the
False Claims Act, alongside a whistleblower claim brought
under the Dodd-Frank Act. ECF No. 1 at p. 4, ECF No. 1-1 at
pp. 1-2. Mr. Downey asserts that he is a
“disabled whistle-blower, ” and alleges that
“the entire Federal Government has orchestrated a war
to decimate all of his efforts to balance the Federal
Budget.” ECF No. 1-1 at p. 2. Downey further asserts:
The Federal Balanced Budget effort was an when reactivated is
attainable and realistic. The IRS annulated his
massive, unselfish, generous, extraordinary accomplishments
which would have resulted in a Worldwide Economic
Due to the unauthorized and illegal destruction and deletion
of 543, 455 IRS Whistleblower accepted submissions the only
recourse was to file Legal Claims with each Individual
General Counsel Department/ Agency . . . .
Id. (emphasis in original).
invokes this Court's federal question jurisdiction and
claims that the deletion of his whistleblower reports to the
IRS violates his Eighth Amendment right to be free from cruel
and unusual punishment because he has been subjected to
“severe stress which resulted in severe, life-long
ramifications.” Id. at p. 3. As relief, Downey
seeks money damages as well as referral of the matter for
criminal prosecution. Downey also asks that this Court seal
the case to prevent the Federal Government from retaliating
against him. ECF No. 3.
Downey is declared indigent pursuant to 28 U.S.C. §
1915(a)(1), that same statute requires dismissal of any claim
that is frivolous or otherwise does not state a legally
cognizable cause of action. See 28 U.S.C. §
1915(e)(2)(B)(i) and (ii). This Court is mindful of its
obligation to construe liberally self-represented pleadings.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007). The
Court takes the facts alleged in the Complaint as true and
most favorably to the plaintiff. Id. at 93 (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56
(2007)). Nonetheless, liberally construing the Complaint does
not mean that this Court must ignore a clear failure to state
a legally cognizable claim. See Weller v. Dep't of
Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also
Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th
Cir. 1985) (stating a district court may not “conjure
up questions never squarely presented.”).
Complaint in this case, despite its length, suffers from
several fatal flaws. First, the Complaint fails to comply
with Rule 8(a)(2) of the Federal Rules of Civil Procedure,
which requires that a complaint include “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Rule 8(e)(1) additionally requires
that complaint allegations be “simple, concise, and
direct.” These essential requirements of any complaint
ensure that the Court and Defendants are given “fair
notice of what the plaintiff's claim is and the grounds
upon which it rests.” Swirkiewicz v. Sorema
N.A., 534 U.S. 506, 512 (2002) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). Where, as here, a
complaint is “so confused, ambiguous, vague, or
otherwise unintelligible that its true substance, if any, is
well disguised, ” the complaint is properly dismissed.
Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).
When assessing whether a complaint satisfies Rule 8, courts
look to its length and complexity, see, e.g., United
States ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d
374, 378 (7th Cir. 2003); whether the claims are set forth
with sufficient clarity to allow the formation of a defense,
see Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir.
2000); and whether the plaintiff is represented by counsel.
See, e.g., Elliott v. Bronson, 872 F.2d 20, 21-22
(2d Cir. 1989).
Complaint and accompanying materials is 93 pages. It recites
a laundry list of civil and criminal statutes and appears to
be at least two separate complaints combined in a confusing
manner. See ECF No. 1 at pp. 23, 26. The Complaint
also references an array of seemingly unrelated federal and
state statutes such as the Clayton Antitrust Act,
id. at p. 42; the Virginia Consumer Protection Act,
id. at p. 49; and the Federal Tort Claims Act,
id. at p. 53; in addition to the Dodd-Frank Act
claims and the qui tam action. Woven throughout are
Downey's claims of pain and suffering, to include caring
for his 86-year old mother. Id. at p. 68. The
Complaint is decidedly not a plain, concise
statement apprising the Court and Defendant of the
allegations. The Complaint must be dismissed on this ground
to the extent the Complaint attempts to bring a qui tam
action, such claims must be dismissed because the
plaintiff-relator cannot be self-represented. U.S. ex
rel. Lu v. Ou, 368 F.3d 773, 775 (7th Cir. 2004)
abrogated by U.S. ex rel. Eisenstein v. City of N.Y.,
N.Y., 556 U.S. 928 (2009) (citations omitted). In a
False Claims Act qui tam action, “the United States is
the real party in interest, and the need for adequate legal
representation of the United States counsel against
permitting pro se suits.” U.S. ex rel. Brooks v.
Lockheed Martin Corp., 237 Fed.Appx. 802, 803 (4th Cir.
2007) citing United States ex rel. Milam v. Univ. of
Tex., 961 F.2d 46, 50 (4th Cir.1992). Accordingly,
Downey, as a pro se plaintiff, may not pursue a False Claims
as for the Dodd-Frank Act claims, this statute permits suit
brought by a “whistleblower” regarding
“information relating to a violation of the securities
laws to the [Securities Exchange] Commission, in a manner
established, by rule or regulation, by the
Commission.'” Id. at 774, citing 15 U.S.C.
§ 78u-6(a)(6). Given that the gravamen of the Complaint
involves information provided to the IRS, the Court sees no
basis for a viable Dodd-Frank Act claim.
also seeks to seal the case for fear of retaliation. ECF No.
3. Pursuant to Local Rule 105.11, “[a]ny motion seeking
the sealing of pleadings, motions, exhibits or other
documents to be filed in the Court record shall include (a)
proposed reasons supported by specific factual
representations to justify the sealing and (b) an explanation
why alternatives to sealing would not provide sufficient
protection.” The purpose of this Rule is to allow the
movant to demonstrate why the common-law presumptive right of
access to court filings is rebutted by “countervailing
interests heavily outweigh the public interest in
access.” Doe v. Public Citizen,749 F.3d 246,
265-66 (4th Cir. 2014). Downey has provided no grounds to
support continued sealing. The motion to seal is denied. The
Court recognizes, however, ...