# WILLSEY v. UNITED STATES OF AMERICA

> District Court, S.D. Indiana · April 10, 2023

URL: https://www.frixlaw.com/law-library/cases/10170178

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** April 10, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10170178

## How later opinions describe it (automated extraction)

- affirming dismissal of non-United States defendants in FTCA case
- 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)

## Opinion text

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

10

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10170178. Public record. Not legal advice.