The opinion
United States District Court
Middle District of Florida
Jacksonville Division
CHRISTOPHER LOGAN SILVA,
Plaintiff,
v. NO. 3:24-cv-949-MMH-PDB
BRIAN MCNAMEE ET AL.,
Defendants.
Report and Recommendation
The plaintiff, proceeding without a lawyer, sues fifteen people to try to
stop the development of an allegedly harmful vaccine by Arcturus
Therapeutics, a company that develops mRNA therapeutic medicines and
vaccines. Docs. 1, 1-1. Some defendants work at Arcturus or related companies;
some defendants are government officials (e.g., “Secretary, Department of
Health and Human Services,” “Director, National Institutes of Health,” and
“Member of the House of Councillors” for Japan’s “Minister of Health, Labour
and Welfare”). Doc. 1 at 6–11. The plaintiff also applies to proceed without
prepaying fees or costs. Doc. 2. The undersigned recommends dismissal
without prejudice because of the absence of Article III standing to sue.
Complaint
The plaintiff’s complaint consists of a “Complaint for a Civil Case” form,
six pages further explaining his claim, and a presentation by Arcturus. Docs.
1, 1-1. The presentation, dated September 2024, is titled “Next Generation
RNA Medicines.” Doc. 1-1 at 1. The presentation includes information about
Arcturus-owned therapeutic medicines and vaccines, Arcturus’s Board of
Directors, and Arcturus’s strategic partners. Id. at 3–26.
Under “Statement of Claim,” the plaintiff refers to the presentation and
writes, “This document shows proof and plan of an incoming self-amplifying
mRNA biologic/vaccine that has the potential to harm billions of people
worldwide.” Doc. 1 at 11.
The plaintiff contends the Court has federal-question jurisdiction
because he sues under “50 U.S. Code § 1520a – Restrictions on use of human
subjects for testing of chemical or biological agents”; “18 U.S. Code § 175 –
Prohibitions with respect to biological weapons”; “Amendment IV”;
“Amendment VIII”; “Amendment IX”; “Amendment X”; “United States of
America v. Karl Brandt, et al.”; “Biological Weapons Anti-Terrorism Act of
1989”; “Americans with Disabilities Act of 1990”; “The National Childhood
Vaccine Injury Act (NCVIA) of 1986”; “Declaration of Independence, U.S.”;
“Basel Convention on the Control of Transboundary Movements of Hazardous
Wastes and Their Disposal, Secretariat of the Basel Convention”; and “Geneva
Conventions.” Id. at 3, 10–11.
For “The Amount in Controversy,” the plaintiff writes, “Operating
budget for said programs. Ant [sic] Investment in people and technology.
Genetic Wealth. Fund For Victims. May be in the + Billions/Trillions of
Dollars.” Id. at 4.
The plaintiff demands an “Immediate Emergency Injunction” and writes,
“Given the history of mRNA biologics/vaccines, these sa-mRNA
biologics/vaccines must not be developed and released.” Id. at 11.
Law & Analysis
Article III standing “is a threshold jurisdictional question[.]” Muransky
v. Godiva Chocolatier, Inc., 979 F.3d 917, 923 (11th Cir. 2020) (en banc). Under
Article III, federal jurisdiction is limited to actual cases or controversies.
Spokeo, Inc. v. Robins, 578 U.S. 330, 337 (2016). To establish a case or
controversy, a plaintiff must have standing to bring a claim. Id. at 338. To have
standing to bring a claim, a plaintiff must allege facts showing he “(1) suffered
an injury in fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable judicial
decision.”1 Id. At the pleading stage, the plaintiff must clearly allege facts
demonstrating each element. Id.
An injury in fact is the “first and foremost of standing’s three elements.”
Id. (internal quotation mark, quoted authority, and alteration omitted).2 An
injury in fact is “an invasion of a legally protected interest” that is “concrete,”
“particularized,” and “actual” or “imminent,” not “conjectural” or
“hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal
quotation marks and quoted authority omitted).
Concreteness and particularity are distinct. Spokeo, 578 U.S. at 339. “For
an injury to be particularized, it must affect the plaintiff in a personal and
1Taxpayer standing, which differs from ordinary standing, allows municipal
taxpayers to challenge as unconstitutional municipal expenditures from the taxes. Nat’l
All. for Mentally Ill, St. Johns Inc. v. Bd. of Cnty. Comm’rs of St. Johns Cnty., 376 F.3d
1292, 1294 (11th Cir. 2004); Pelphrey v. Cobb Cnty., 547 F.3d 1263, 1280 (11th Cir. 2008).
“Municipal taxpayers have standing to challenge unconstitutional expenditures if their
interest is ‘direct and immediate.’” Pelphrey, 547 F.3d at 1280 (quoting Frothingham v.
Mellon, 262 U.S. 447, 486–87 (1923)). Taxpayer standing is unavailable here because, at
a minimum, the plaintiff does not sue a municipality or other local governmental entity.
2In the interest of judicial economy, the undersigned addresses only injury in fact.
individual way.” Id. (internal quotation marks omitted). The “test requires
more than an injury to a cognizable interest[.]” Lujan, 504 U.S. at 563. “[W]hen
the asserted harm is a generalized grievance shared in substantially equal
measure by all or a large class of citizens, that harm alone normally does not
warrant exercise of jurisdiction.” Warth v. Seldin, 422 U.S. 490, 499 (1975)
(internal quotation marks omitted).
A district court’s discretion to dismiss a complaint without leave to
amend is restricted by Rule 15(a), Federal Rules of Civil Procedure, which
directs that leave to amend must be freely given when justice so requires.
Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). Dismissal with
prejudice is appropriate if granting leave to amend would be futile. Cockrell v.
Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007). Granting leave to amend would
be futile if the complaint as amended would still be properly dismissed. Id.
A dismissal for lack of jurisdiction is not a judgment on the merits and
must be entered without prejudice. Stalley ex rel. U.S. v. Orlando Reg’l
Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008).
The plaintiff here fails to allege facts showing Arcturus’s development of
an allegedly harmful vaccine has affected or will affect him in a personal and
individual way. His claim is not specific to him, but, according to him, to
“billions of people worldwide.” See Doc. 1 at 11 (quoted). Because the plaintiff
fails to allege facts sufficient to establish standing, the Court lacks Article III
jurisdiction, and dismissal without prejudice is warranted. Based on the
alleged facts, amendment would be futile.
The undersigned recommends dismissing the action without prejudice
and directing the clerk to terminate the pending application to proceed without
prepaying fees or costs, Doc. 2, and close the file.
Objections
“Within 14 days after being served with a copy of [a] recommended
disposition, a party may serve and file specific written objections to the
proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). “A party
may respond to another party’s objections within 14 days after being served
with a copy.” Id. “The district judge must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ.
P. 72(b)(8); see also 28 U.S.C. § 686(b)(1)(C) (“A [district judge] shall make a de
novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.”). “A party failing to
object to ... findings or recommendations ... in a report and recommendation
... waives the right to challenge on appeal the district court’s order based on
unobjected-to factual and legal conclusions[.]” 11th Cir. R. 3-1.
Entered in Jacksonville, Florida, on September 26, 2024.
PATRICIA D. BARKSDALE
United States Magistrate Judge
C: Christopher Logan Silva
52 Club House Drive, #108
Palm Coast, Florida 32137