WILLSEY v. UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

DONALD BRENT WILLSEY, )

)

Plaintiff, )

)

v. ) No. 1:23-cv-00370-JPH-TAB

)

UNITED STATES OF AMERICA, et al., )

)

Defendants. )

ORDER SCREENING COMPLAINT

Plaintiff Donald Brent Willsey, proceeding pro se, has filed a complaint

against 34 defendants, asserting wide-ranging allegations that focus on how

the government covered up dangers associated with COVID-19 vaccines. For a

variety of reasons explained below, only Mr. Willsey's negligence claim against

the United States may proceed.

I.

Screening

A. Screening Standard

The Court has the inherent authority to screen Mr. Willsey's complaint.

Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999) ("[D]istrict courts have the

power to screen complaints filed by all litigants, prisoners and non-prisoners

alike, regardless of fee status."). The Court may dismiss claims within a

complaint that fail to state a claim upon which relief may be granted. See id.

In determining whether the complaint states a claim, the Court applies the

same standard as when addressing a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017).

To survive dismissal,

[the] complaint must contain sufficient factual matter,

accepted as true, to state a claim for relief that is

plausible on its face. 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.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pro se complaints are construed

liberally and held to a less stringent standard than formal pleadings drafted by

lawyers. Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015). Moreover, "it is

always a federal court's responsibility to ensure it has jurisdiction." Hukic v.

Aurora Loan Servs., 588 F.3d 420, 427 (7th Cir. 2009).

B. The Complaint

Mr. Willsey sues 34 defendants for their role in the COVID-19 pandemic

and the rollout of vaccines for the virus. Dkt. 1. In general, he claims that the

United States and several of its agencies "censored and editorialized free speech

and the press and recommended the use of a faulty product"—a vaccine—"from

a private company." Id. at 10. Additionally, he claims that a swath of federal

and state officials were "all negligent" "by accepting their positions." Id. He

also brings several other claims against a vaccine manufacturer, hospitals,

doctors, clinics, and pharmacies. Id. at 10–11. He claims that, because he

received a COVID-19 vaccine, "according to [his] doctors, [he is] going to die

September of 2026 plus or minus a few months." Id. at 10.

C. Discussion of Claims

1. Jurisdiction

Federal courts are courts of limited jurisdiction. In order to hear and

rule on the merits of a case, a federal court must have subject-matter

jurisdiction over the issues. Bender v. Williamsport Area Sch. Dist., 475 U.S.

534, 541 (1986). The plaintiff bears the burden of establishing subject-matter

jurisdiction. Craig v. Ontario Corp., 543 F.3d 872, 876 (7th Cir. 2008).

The Supreme Court has explained the two basic ways to establish

subject-matter jurisdiction:

The basic statutory grants of federal-court subject-matter

jurisdiction are contained in 28 U.S.C. §§ 1331 and 1332.

Section 1331 provides for federal-question jurisdiction, §

1332 for diversity of citizenship jurisdiction. A plaintiff

properly invokes § 1331 jurisdiction when she pleads a

colorable claim arising under the Constitution or laws of

the United States. She invokes § 1332 jurisdiction when

she presents a claim between parties of diverse citizenship

that exceeds the required jurisdictional amount, currently

$75,000.

Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006) (citations and quotation

omitted).

Construed liberally, Mr. Willsey's complaint makes out a few claims that

invoke the Court's jurisdiction. First, he brings two claims under the Court's

federal-question jurisdiction: (1) he seeks money damages from the United

States and a host of federal agencies1 for violating the First Amendment; (2) he

1 The U.S. Department of Health and Human Services, the National Institutes of

Health, the Centers for Disease Control and Prevention, the Federal Bureau of

Investigation, the Central Intelligence Agency, and the Internal Revenue Service. Dkt.

1 at 10–11.

brings a negligence claim for money damages against the United States, several

federal agencies,2 and multiple federal officials3; and (3) he claims that IU

Health, Indiana, and Indiana University "conspired to present false

designations of origins" in violation of 15 U.S.C. § 1125. Dkt. 1 at 1, 10–11.

He also appears to bring two claims under the Court's diversity-of-citizenship

jurisdiction: (1) a negligence claim against Pfizer, Inc., a New York corporation;

and (2) a claim that out-of-state companies "The Little Clinic, The Kroger Co.

and Ascension St. Vincent procured and administered a faulty product in my

body." Id. at 2, 10–11.

Second, Mr. Willsey appears to be attempting to invoke the Court's

supplemental jurisdiction to hear the rest of his case—namely, (1) negligence

claims against Indiana, some of its state officials,4 a few of its agencies,5 and

the City of Indianapolis; and (2) a medical malpractice claim against several

Indiana-citizen doctors.6 Id. at 9–11. While this Court generally can't hear

state-law claims between citizens of the same state on their own, it can do so

"in any civil action of which the district courts have original jurisdiction," so

long as those claims "are so related to claims in the action . . . that they form

2 The Centers for Disease Control, the Food and Drug Administration, the U.S.

Department of Health and Human Services, and the Federal Communication

Commission. Id.

3 President Donald J. Trump, President Joseph R. Biden, Jr., Anthony S. Fauci, Vice

Admiral Vivek H. Murthy, Rochelle P. Walensky, and Jeff Zients. Id.

4 Governor Eric Holcomb, State Health Commissioner Kris Box, Indianapolis Mayor

Joe Hogsett, and Chief Medical Officer of the Marion County Public Health Department

Virginia Caine. Id. at 10.

5 The Indiana Department of Health and the Marion County Health Department. Id.

6 Michael S. Brody, Tricia Wright, and Yazid Y. Fadl. Id. at 9, 11.

part of the same case or controversy." 28 U.S.C. § 1367(a). For this

situation—called supplemental jurisdiction—to be found, both the state and

federal claims must derive from a "common nucleus of operative facts." United

Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). This may arise, for example,

when "the supplemental claim involves the same parties, contracts, and course

of action as the claim conferring federal jurisdiction." Prolite Bldg. Supply, LLC

v. MW Manufacturers, Inc., 891 F.3d 256, 258 (7th Cir. 2018) (citing cases).

Here, these state-law claims do not derive from a "common nucleus of

operative facts." Gibbs, 383 U.S. at 725. While Mr. Willsey's state-law claims

have a background that overlaps with the rest of his complaint—i.e., the rollout

of COVID-19 vaccines—they do not have a common set of facts. Simply put,

deciding whether Indiana state officials were negligent in their handling of the

pandemic on the state level requires evidence entirely separate from

determining whether federal officials were negligent at the federal level. See

Prolite, 891 F.3d at 258–59 (noting that, while the claims have "some things in

common with each other," "it is impossible to say that [the two claims] are just

one big controversy"). Therefore, Mr. Willsey's claims against Indiana, the state

agencies and officials, see supra fns. 4–5, and the doctors, see supra fn. 6,

must be DISMISSED for lack of jurisdiction.

2. Other Issues

While the Court has jurisdiction to hear several of Mr. Willsey's claims,

there are issues with those claims as presented.

First, Mr. Willsey's asks for money damages because of alleged

constitutional violations by federal actors. Dkt. 1 at 10–11. The Court

construes this claim as one arising under the theory recognized in Bivens v. Six

Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388

(1971). But Bivens claims are limited to certain contexts and, most

importantly here, only allow suit for constitutional violations committed by

federal officials. See id. at 395. A Bivens cause of action therefore may not be

brought against a federal agency or the United States itself. FDIC v. Meyer, 510

U.S. 471, 483–85 (1994). Mr. Willsey's First Amendment claims against the

United States and several of its agencies, see supra fn. 1, must be DISMISSED.

Second, Mr. Willsey claims that the United States, several federal

agencies, and multiple federal officials were negligent in the development of

COVID-19 vaccines. Negligence claims based on acts or omissions of the

United States and its employees must be resolved through the Federal Tort

Claims Act (FTCA). 28 U.S.C. §§ 2672, 2679(b)(1). "The only proper defendant

in an FTCA action is the United States." Jackson v. Kotter, 541 F.3d 688, 693

(7th Cir. 2008) (affirming dismissal of non-United States defendants in FTCA

case). Therefore, all negligence claims against federal agencies and federal

officials, see supra fns. 2–3, must be DISMISSED.

Mr. Willsey's negligence claim against the United States, however, may

proceed. He alleges that the United States, through its agents, collaborated

with pharmaceutical companies to develop COVID-19 vaccines that it knew

caused severe side effects. Dkt. 1 at 10. Additionally, members of the

government told Americans to take the vaccine. See id. Mr. Willsey alleges

that, since he received a COVID-19 vaccine, he has had health problems, and

he is "going to die September of 2026 plus or minus a few months." Id. at 10.

That's enough facially plausible content—at the pleading stage—to make out a

negligence claim against the United States. See Boruski v. United States, 803

F.3d 1421, 1424 (7th Cir. 1986) (allegations that "the United States authorized,

commissioned, and procured" a vaccine, causing plaintiff to contract a disease,

were enough to get case past pleading stage).

Last, Mr. Willsey's last three claims cannot proceed as presented. To

state a claim for relief, a complaint must provide more than "abstract

recitations of the elements of a cause of action or conclusory legal statements."

Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Instead, a plausible claim

must include "factual content" sufficient to allow the Court "to draw the

reasonable inference that the defendant is liable for the misconduct alleged."

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, these claims are no more

than "conclusory legal statements":

• "Pfizer, Inc. is negligent for manufacturing and distributing a

harmful product." Dkt. 1 at 10.

• "IU Health conspired to present false designations of origins with

the State of Indiana and Indiana University." Id.

• "The Little Clinic, The Kroger Co. and Ascension St. Vincent

procured and administered a faulty product in my body and

caused great harm." Id. at 11.

These "naked assertions" are insufficient to avoid dismissal. See Iqbal, 556

U.S. at 678. To state a claim, Mr. Willsey needs to "give enough details about

the subject-matter of the case to present a story that holds together." Swanson

v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). As it stands now, though,

these claims must be DISMISSED.

A few final notes. Mr. Willsey names the People's Republic of China

(PRC) and the Wuhan Institute of Virology (WIV) as defendants, but it's not

clear what his claims against them are. In any case, the Foreign Sovereign

Immunities Act "holds foreign states and their instrumentalities immune from

the jurisdiction of federal and state courts," save exceptions not relevant

here. Opati v. Republic of Sudan, 140 S. Ct. 1601, 1605 (2020); see Missouri ex

rel. Schmitt v. People's Republic of China, No. 1:20 CV 99 SNLJ, 2022 WL

2643516, at *17 (E.D. Mo. July 8, 2022) (determining that federal courts have

no jurisdiction over the PRC and the WIV in COVID-19 case). Therefore, the

claims against the PRC and WIV are DISMISSED.

Also, Mr. Willsey also names "IU Health Physicians Family Medicine" and

"IU Health Physician Cardiology" as defendants, see dkt. 1 at 7, but he makes

no allegations against them, see generally id. Therefore, any claims against

them are DISMISSED for failure to state a claim.

II.

Conclusion

In summary, only Mr. Willsey's negligence claim against federal actors—

with the United States as the lone defendant—survives screening. All other

claims have been dismissed for the reasons stated above.

Therefore, the Clerk is directed to terminate the following Defendants

from the docket:

• U.S. Department of Health and Human Services;

• National Institutes of Health'

• People's Republic of China;

• Wuhan Institute of Virology;

• Pfizer, Inc.;

• Centers for Disease Control and Prevention;

• Food and Drug Administration;

• Federal Bureau of Investigations;

• Central Intelligence Agency;

• United States Department of Homeland Security;

• Federal Communication Commission;

• Internal Revenue Service;

• State of Indiana;

• Indiana University;

• IU Health;

• IU Health Physicians Family Medicine;

• IU Health Physicians Cardiology;

• Donald J. Trump;

• Joseph R. Biden, Jr.;

• Anthony S. Fauci;

• Vivek Murthy;

• Rochelle P. Walensky;

• Jeff Zients;

• Eric Holcomb;

• Kris Box;

• Joe Hogsett;

• Virginia A. Caine;

• Michael S. Brody;

• Tricia Wright;

• Yazid Y. Fadl;

• Little Clinic;

• Kroger Co.; and

• Ascension Health Alliance, Ascension St. Vincent.

Mr. Willsey has two choices on how to proceed:

• First, he can continue with this complaint as his operative pleading,

proceeding only against the United States on his negligence claim.

If the Court does not hear otherwise by April 28, 2023, it will serve

the United States per Federal Rule of Civil Procedure 4(i)(1), along

with a copy of his complaint, dkt. 1, and a copy of this order.

e Second, he can file an amended complaint to remedy the issues

raised in this order. Because an amended complaint completely

replaces previous pleadings, it must be a complete statement of Mr.

Willsey's claims. See Beal v. Beller, 847 F.3d 897, 901 (7th Cir.

2017) ("For pleading purposes, once an amended complaint is filed,

the original complaint drops out of the picture."). The amended

complaint must comply with Federal Rule of Civil Procedure 8 by

clearly specifying the defendants against whom claims are raised;

explaining what each defendant did, and when; and explaining what

the plaintiff is seeking. The amended complaint must also include

the case number, No. 1:23-cv-00370-JPH-TAB, and "Amended

Complaint" on the first page. Mr. Willsey has until April 28, 2023,

to file an Amended Complaint, if he so chooses.

If Mr. Willsey chooses to file an amended complaint, the Court retains

the discretion to screen it again. See Rowe, 196 F.3d at 783. Additionally, if

Mr. Willsey again names a significant number of defendants, the Court will

consider whether any claims are subject to severance or dismissal. See George

v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (noting that district court should

have questioned plaintiffs "decision to join 24 defendants, and approximately

50 distinct claims, in a single suit" under Fed. R. Civ. P. 18(a)).

SO ORDERED.

Date: 4/10/2023

Sjamu Patrick hawlove

James Patrick Hanlon

United States District Judge

Distribution: Southern District of Indiana

DONALD BRENT WILLSEY

7922 Islay Court

Indianapolis, IN 46217

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