Phillips v. United State of America

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

COLUMBIA DIVISION

HOLLY C. PHILLIPS, )

)

Plaintiff, )

) NO. 1:20-cv-000331

v. )

) JUDGE CAMPBELL

UNITED STATES OF AMERICA FBI, ) MAGISTRATE JUDGE HOLMES

DR. PHIL MCGRAW, CHRIS )

CHILDERS, AMANDA SMITH, and )

JOSH RITTER, )

)

Defendants. )

MEMORANDUM

Holly C. Phillips, a resident of Lewisburg, Tennessee, has filed a pro se, in forma pauperis

complaint under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of the Federal Bureau

of Narcotics, 403 U.S. 388 (1971) (hereinafter “Bivens”), against the “United States of America

FBI,” Dr. Phil McGraw, Chris Childers, Amanda Smith, and Josh Ritter. (Doc. No. 1).

I. SCREENING STANDARD

Because Plaintiff is proceeding as a pauper in this action, the Court must conduct an initial

review of the complaint under 28 U.S.C. § 1915(e)(2) and dismiss it or any portion of it that is

frivolous or malicious, fails to state a claim for which relief may be granted, or seeks monetary

relief from a defendant who is immune from such relief. In assessing whether the complaint states

a claim on which relief may be granted, the Court applies the standards under Rule 12(b)(6) of the

Federal Rules of Civil Procedure, as construed by Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009),

1 This case was opened as No. 3:20-cv-00452 in the Nashville Division of the United States District

Court for the Middle District of Tennessee and, by Order entered on June 9, 2020, was transferred to the

Columbia Division of the United States District Court for the Middle District of Tennessee. (Doc. No. 3).

and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). See Hill v. Lappin, 630 F.3d

468, 470-71 (6th Cir. 2010) (holding that “the dismissal standard articulated in Iqbal and Twombly

governs dismissals for failure to state a claim under § 1915(e)(2)(B)(ii) because the relevant

statutory language tracks the language in Rule 12(b)(6)”).

“Pro se complaints are to be held to less stringent standards than formal pleadings drafted

by lawyers, and should therefore be liberally construed.” Williams v. Curtin, 631 F.3d 380, 383

(6th Cir. 2011) (internal quotation marks and citation omitted). Pro se litigants, however, are not

exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d

591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011)

(“[A] court cannot create a claim which [a plaintiff] has not spelled out in his pleading”) (internal

quotation marks and citation omitted); Payne v. Sec’y of Treas., 73 F. App’x 836, 837 (6th Cir.

2003) (affirming sua sponte dismissal of complaint pursuant to Fed. R. Civ. P. 8(a)(2) and stating,

“[n]either this court nor the district court is required to create Payne’s claim for her”).

II. SECTION 1983 AND BIVENS STANDARDS

Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and Bivens. (Doc. No. 1 at 1). To state

a claim under Section 1983, a plaintiff must allege and show: (1) that she was deprived of a right

secured by the Constitution or laws of the United States; and (2) that the deprivation was caused

by a person acting under color of state law. Parratt v. Taylor, 451 U.S. 527, 535 (1981) (overruled

in part by Daniels v. Williams, 474 U.S. 327, 330 (1986)); Flagg Bros. v. Brooks, 436 U.S. 149,

155-56 (1978); Black v. Barberton Citizens Hosp., 134 F.3d 1265, 1267 (6th Cir. 1998). Both parts

of this two-part test must be satisfied to support a claim under Section 1983. See Christy v.

Randlett, 932 F.2d 502, 504 (6th Cir. 1991).

In Bivens, the United States Supreme Court created a private right of action for damages

against officials acting under color of federal law when they are alleged to have violated a citizen's

constitutional rights. 403 U.S. at 389. “Such claims are the counterpart to suits under

42 U.S.C. § 1983 against state officials who infringe plaintiffs' federal constitutional or statutory

rights.” Vector Research, Inc. v. Howard & Howard Attorneys, P.C., 76 F.3d 692, 698 (1996).

III. ALLEGED FACTS

The complaint alleges that, for the past eighteen years, the Lewisburg Police Department

has planted “illegal bugs/wires” in Plaintiff’s “home, car, or rental.” (Doc. No. 1 at 4). Plaintiff

believes that “[t]here have been subliminal messages directed towards” her through “Twilight,

Meet the O’Reilys, Speak, Wayward Pines, Blindspot, The Hunger Games, and Suicide Squad.”

(Id.) These messages cause “ringing and popping in [her] ears with room spinning headaches.”

(Id.) In addition, Plaintiff states that she is being “held in captivity with small ropes against her

will and life pathways.” (Id. at 5). She further states that she is “being gambled by authority” and

used in “sex and human trafficking.” (Id.) According to Plaintiff, she has a “dead 3rd trimester

infant inside of [her] body due to authority giving background information.” (Id.) The complaint

does not identify who is responsible for these alleged acts.

As relief, Plaintiff seeks damages “to stabilize medicine, emotional state, and

independence,” a new driver’s license, passport, a “Federal agreement or understanding,” and “1-

3 months of hired personnel for reentering society.” (Id.) She also seeks “blood work on potassium

def. used to give brain damage illuminating access to potassium and magnesium.” (Id.)

IV. SCREENING OF THE COMPLAINT

The complaint names as Defendants the “United States of America FBI,” Chris Childers,

Amanda Smith, Josh Ritter, and Dr. Phil McGraw.

A. Defendant “United States FBI”

First, the complaint names “the United States FBI” as a Defendant. “‘It is axiomatic that

the United States may not be sued without its consent and that the existence of consent is a

prerequisite for jurisdiction.’” Munaco v. United States, 522 F.3d 651, 652-53 (6th Cir. 2008)

(quoting United States v. Mitchell, 463 U.S. 206, 212 (1983)). The United States can be sued only

to the extent it has waived its sovereign immunity. McGinness v. United States, 90 F.3d 143, 145

(6th Cir. 1996). “A waiver of the Federal Government's sovereign immunity must be

unequivocally expressed in statutory text and will not be implied. Moreover, a waiver of the

Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the

sovereign.” Lane v. Pena, 518 U.S. 187, 192 (1996) (internal citations omitted). The United States

has not waived sovereign immunity as to damages claims for constitutional violations and,

therefore, cannot be sued for monetary damages in this action. See Coe v. United States, No. 16-

3006-STA-egb, 2018 WL 4374219, at *2 (W.D. Tenn. Sept. 13, 2018) (construing prisoner’s

claims against the United States brought under Section 1983 as Bivens claims and dismissing

claims due to sovereign immunity) (citing Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991)

(stating that a Bivens claim cannot be asserted against the United States government or its

employees in their official capacities)).

In any event, the complaint clearly attributes the alleged illegal wiretapping and “bugging”

to the Lewisburg Police Department, not the FBI. 2 The complaint does not explain what role the

United States and/or FBI has played or is playing in the allegations of the complaint. The Court

2 The complaint does not name the Lewisburg Police Department as a Defendant to this action. In a previous case filed

by Plaintiff, she sued the Lewisburg Police Department for its alleged illegal wiretapping and surveillance, among

other allegations. See Holly C. Phillips v. Lewisburg Police Dep’t, et al., No. 1:20-cv-00020 (Campbell, J.). The Court

dismissed that case, finding that Plaintiff failed to state claims upon which relief can be granted under Section 1983

against the Lewisburg Police Department. (Id., Docs. No. 7 and 8).

therefore finds that the complaint fails to state claims under Section 1983 and Bivens against

Defendant “United States FBI.”

B. Defendants Ritter, Childers, and Smith

With respect to Josh Ritter, Plaintiff lists his name only in the caption on page one of the

complaint. (Doc. No. 1 at 1). Ritter is not listed under the “Defendants” section or in the narrative

of the complaint.

The complaint does not identify Chris Childers’s job or his specific role in the events

alleged. In the section of the complaint where Plaintiff identifies Childers as a Defendant, Plaintiff

notes in the margin: “(Rights not to be stalked, trafficked, mutilated to stop, excessive force, right

to stop environment and med[)].” (Id. at 3). However, Childers is not mentioned in the narrative

of the complaint, and Plaintiff does not allege that he stalked, trafficked, mutilated, medicated her,

or used excessive force against her. Neither does the complaint allege that Childers is or was

employed as an officer of the Lewisburg Police Department, or is or was acting as an agent of the

FBI or United States. The complaint indicates only that he resides in Lancaster, Pennsylvania. (Id.

at 3).

As for Amanda Smith, the complaint does not allege where she resides, what her job is, or

what her role was in the events alleged in the complaint. (Id.) In the section of the complaint where

Plaintiff identifies Smith as a Defendant, she notes in the margin: “(Rights to privacy, health,

consent, and not to be followed or to make money holding me captive with the Lewisburg Police

Department or abusing authority.” (Doc. No. 1 at 3). However, Smith is not mentioned in the

narrative of the complaint, and Plaintiff does not allege that Smith engaged in acts that violated

Plaintiff’s privacy, health, or right to consent. Neither does the complaint allege that Smith is or

was employed as an officer of the Lewisburg Police Department, is or was acting as an agent of

the FBI or United States, or is or was holding Plaintiff captive.

A plaintiff must identify the right or privilege that was violated and the role of the defendant

in the alleged violation, see Miller v. Calhoun Cnty., 408 F.3d 803, 827 n.3 (6th Cir. 2005); Dunn

v. Tenn., 697 F.2d 121, 128 (6th Cir. 1982), and Plaintiff has not alleged any specific personal

involvement by these Defendants in the events described in the complaint. Further, Plaintiff has

not alleged that these Defendants acted under color of state or federal law. Therefore, Plaintiff’s

allegations against Defendants Ritter, Childers, and Smith fail to state Section 1983 and Bivens

claims upon which relief can be granted.

C. Defendant Dr. McGraw

In the section of the complaint where Plaintiff identifies Dr. McGraw as a Defendant, she

notes in the margin: “DL rights to have money, consent, privacy, GPS signal, and not being a

subject to human trafficking, rights to adulthood, emotional state, and pregnancy in country other

than USA) (Rights to remove dead fetus bone fragments, Rights to one’s one life and pathway).”

(Id. at 2). However, Plaintiff does not allege in the narrative of the complaint that Dr. McGraw

was involved in any of these alleged harmful acts. The complaint does not allege any personal

involvement by Dr. McGraw in the allegations set forth by Plaintiff. Neither does the complaint

allege that Dr. McGraw acted under color of state or federal law with respect to any actions taken

by him that harmed Plaintiff. Plaintiff alleges only that Dr. McGraw “can be put under oath” to

corroborate the allegations of the complaint. (Doc. No. 1 at 3). This allegation in insufficient to

sustain liability under Section 1983 or Bivens.

Additionally, in a previous lawsuit brought by Plaintiff in this Court, she sued Dr. McGraw

under Section 1983, alleging that he “sexually, emotionally, and physically impacted [Plaintiff’s]

life.” Holly C. Phillips v. Lewisburg Police Dep’t, et al., No. 1:20-cv-00020 (Doc. No. 1 at 5)

(Campbell, J.). Plaintiff also alleged that Dr. McGraw, along with the local police, allowed

Plaintiff’s “ex brother in law to draw money from it while keeping [Plaintiff] held against [her]

will” and allowed “an abuser to practice medicine on [her].” (Id.) That complaint “seemed to

suggest that Dr. McGraw played a role in forcing Plaintiff to become pregnant, or to terminate her

pregnancy, leaving ‘bone fragments’ of a fetus inside Plaintiff.” (Id., Doc. No. 5 at 3). The Court

dismissed Plaintiff’s claims against Dr. McGraw, finding that they failed to state claims under

Section 1983 upon which relief can be granted. (Id., Doc. Nos. 7 and 8). To the extent that Plaintiff

attempts to relitigate those claims in this action, she is barred by the doctrine of issue preclusion

from doing so. See Gen. Elect. Med. Sys. Europe v. Prometheus Health, 394 Fed. App’x 280, 283

(6th Cir. 2010) (setting forth the elements of issue preclusion).

Furthermore, Section 1915 “accords judges not only the authority to dismiss a claim based

on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the

complaint's factual allegations and dismiss those claims whose factual contentions are clearly

baseless.” Neitzke v. Williams, 490 U.S. 319, 327-38 (1989) (providing as an example “claims

describing fantastic or delusional scenarios, claims which with federal district judges are all too

familiar.”). The Court finds that the allegations of the complaint are frivolous, and the complaint

fails to allege concrete facts that state a plausible cause of action over which this Court may

exercise jurisdiction. On that basis, too, Plaintiff’s Section 1983 and/or Bivens claims against all

Defendants fail as a matter of law.

V. CONCLUSION

The Court has conducted an initial review of the complaint under 28 U.S.C. § 1915(e)(2)

and finds that the complaint fails to state claims upon which relief may be granted under 42 U.S.C.

§ 1983 and Bivens. Accordingly, this action will be dismissed.

An appropriate Order will be entered.

WILLIAM L. CAMPBELL, J

UNITED STATES DISTRICT JUDGE