Allen v. United States Government

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

*

MICHAEL ALLEN, *

*

Plaintiff, *

* Civ. No. MJM-24-2653

v. *

*

UNITED STATES, et al., *

*

Defendants. *

*

* * * * * * * * * *

MEMORANDUM

Self-represented plaintiff Michael Allen (“Plaintiff”) filed this civil action against the

United States and the State of Maryland alleging violations of Plaintiff’s constitutional rights,

negligence, and violations of the Administrative Procedure Act (“APA”). ECF No. 1. This matter

is before the Court on Plaintiff’s motion for default judgment, ECF 29; motion to strike, ECF 36;

motion to join necessary parties, ECF 27; motion for partial summary judgment, ECF 19; and

motion for appointment of counsel, ECF 13; and the defendants’ motions to dismiss, ECF 15 &

25. The motions are ripe for disposition. No hearing is necessary. See Local Rule 105.6 (D. Md.

2025). For the reasons set forth below, the Court shall grant the defendants’ motions to dismiss

and deny Plaintiff’s motions.

I. BACKGROUND

A. Factual Background

Plaintiff filed this civil action against the federal and Maryland state governments alleging

“discriminatory practices in disbursing seed funding, denying qualified funding applications, and

failing to respond to numerous reports of attacks and netbias.” Complaint (“Compl.”), ECF 1, at

1. Plaintiff claims that he is an entrepreneur and founder of Ufora, Inc. (“Ufora”), a technology

company based in Baltimore, Maryland “focusing on innovation and technology development.”

Id. Plaintiff alleges that Ufora was “repeatedly” denied funding applications from both federal and

state funding programs “[d]espite meeting all eligibility criteria[.]” Id. Further, he alleges that

“[f]ederal and state officials, including those from the Small Business Administration (SBA) and

Maryland state agencies, reviewed and denied the applications without providing sufficient

explanations, while less qualified startups and businesses received substantial funding.” Id.

Plaintiff also alleges that he has faced “systemic discrimination and netbias, including

gangstalking,” leading to “the systematic denial of opportunities by Maryland state organizations.”

Id. at 2. Plaintiff filed multiple Internet Crime Complaint Center (IC3) complaints with the FBI

against the Baltimore City Police Department and other city officials alleging “harassment,

discrimination, and netbias.” Id. He claims that his reports to the FBI have been ignored.

Plaintiff claims that the denials of his applications for seed funding violate the Equal

Protection Clause of the Fourteenth Amendment and the Administrative Procedure Act (APA). Id.

at 3, 4. He also alleges violations of the First, Fourth, and Eight amendments, as well as misconduct

and excessive use of force by the police, retaliation for exercising constitutional rights, violations

of the right to privacy, and negligence. Id. at 6–9. As to the First Amendment violation, Plaintiff

alleges that “[s]tate officials retaliated against [him] for speaking out about the discrimination he

faced and for practicing his religious beliefs.” Id. at 6. As to the Fourth Amendment violation,

Plaintiff alleges that “[s]tate law enforcement officers conducted unreasonable searches of [his]

property without probable cause.” Id. As to the Eighth Amendment violation, Plaintiff alleges that

“[s]tate prison officials subjected [him] to inhumane conditions of confinement. Id. As to the police

misconduct claim, Plaintiff alleges that “[s]tate police officers used excessive force against [him]

during an arrest.” Id. As to the retaliation claim, Plaintiff alleges that “[s]tate officials retaliated

against [him] for filing complaints and seeking redress for his grievances.” Id. at 7. As to the

privacy violation, Plaintiff alleges that “[s]tate officials disclosed [his] private information without

consent.” Id. With respect to each violation, Plaintiff claims that the state officials acted in their

official capacities. Id. at 6–7.

Plaintiff also re-asserts each of the foregoing claims as Bivens claims against unnamed

federal officials. Id. at 7–8; see also Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971). In support of his equal protection claim, asserted under 42 U.S.C.

§ 1983, Plaintiff alleges that “[f]ederal officials, including agency administrators, denied funding

applications from Ufora, Inc. while approving less qualified applicants[.]” Compl. at 9. In support

of his § 1983 due process claim, he alleges that “federal officials failed to provide a fair process

for reviewing Ufora, Inc.’s funding applications and did not offer a reasoned explanation for their

denials.” Id. Plaintiff asserts a claim for negligence on the grounds that “[t]he Defendants failed to

investigate and respond to the Plaintiff’s reports of discrimination, attacks, and netbias, causing

significant harm to his business.” Id. at 9. Finally, Plaintiff claims that Defendants violated that

APA in failing to provide “a reasoned explanation for denying the Plaintiff’s funding applications,

making their actions arbitrary and capricious.” Id. at 10. Plaintiff seeks compensatory damages,

punitive damages, injunctive relief, and legal fees. Id. at 13.

B. Procedural Background

On September 13, 2024, Plaintiff filed his complaint against the United States and the State

of Maryland. ECF 1. On January 8, 2025, the State of Maryland filed a Motion to Dismiss. ECF

15. On January 15, 2025, Plaintiff filed a response in opposition to State of Maryland’s Motion to

Dismiss coupled with a Motion for Partial Summary Judgment. ECF 19. On February 4, 2025, the

State of Maryland filed a Response in Opposition to Plaintiff’s Motion for Partial Summary

Judgment. ECF 22. On February 18, 2025, Plaintiff filed a Reply. ECF 24.

On March 28, 2025, the United States filed a Motion to Dismiss. ECF 25. On March 31,

2025, Plaintiff filed a joint Rule 19(a) Motion to Join Necessary Parties and Response in

Opposition to the federal Government’s Motion to Dismiss. ECF 27. On April 4, 2025, Plaintiff

filed a Motion for Default Judgment against the State of Maryland. ECF 29. On April 14, 2025,

the United States filed a response in opposition to Plaintiff’s Rule 19(a) Motion. ECF 30. On April

23, 2025, the State of Maryland filed a response in opposition to Plaintiff’s Motion for Default

Judgment. ECF 33. On April 25, 2025, Plaintiff filed a Motion to Strike the State of Maryland’s

Response in Opposition to Plaintiff’s Motion for Default Judgment. ECF 36.

II. PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT AND MOTION TO

STRIKE

Plaintiff filed a motion for default judgement against the State of Maryland based upon a

“certified written tort claim” filed with the Maryland State Treasurer that was unanswered by the

State of Maryland. ECF 29. Each defendant filed a response in opposition to this motion. ECF 30

& 33. Plaintiff then filed a motion to strike the State of Maryland’s opposition based upon the

State’s failure to file a timely response to Plaintiff’s motion for partial summary judgment. ECF

36.

A motion to strike is a drastic remedy which is disfavored by the courts and infrequently

granted. See International Longshoremen’s Ass’n, S.S. Clerks Local 1624, AFL–CIO v. Virginia

Intern. Terminals, Inc., 904 F. Supp. 500, 504 (E.D.Va. 1995); First Financial Sav. Bank v.

American Bankers Ins. Co., 783 F. Supp. 963, 966 (E.D.N.C. 1991); United States v. Fairchild

Indus. Inc., 766 F. Supp. 405, 408 (D. Md. 1991); Clark v. Milam, 152 F.R.D. 66, 70 (S.D.W.Va.

1993). The Court agrees with Plaintiff that the State’s response to his motion for partial summary

judgment was untimely but finds that striking the State’s opposition is unnecessary. Given the

untimely filing, the Court will simply decline to consider the State’s response to Plaintiff’s motion

for partial summary judgment. The motion to strike is denied.

Default judgment would be improper. “For a plaintiff to obtain a default judgment, Rule

55 [of the Federal Rules of Civil Procedure] sets forth a two-step process that first requires the

entry of a default by the clerk or the court under Rule 55(a) and then entry of a default judgment

under Rule 55(b).” Amerifactors Fin. Grp., LLC v. PHD Tech. Sols., LLC, Civ. No. RDB-19-0207,

2019 WL 2579349, at *1 (D. Md. June 24, 2019). Rule 55(a), governing the entry of default, states:

“When a party against whom a judgment for affirmative relief is sought has failed to plead or

otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the

party’s default.” Fed. R. Civ. P. 55(a). Once a default is entered, under Rule 55(b)(1), the clerk

may enter a default judgment “[i]f the plaintiff’s claim is for a sum certain or a sum that can be

made certain by computation.” Fed. R. Civ. P. 55(b)(1). “In all other cases, the party must apply

to the court for a default judgment.” Fed. R. Civ. P. 55(b)(2). Here, no default has been entered

against the State, and the State has demonstrated its intention to defend against Plaintiff’s claims

by filing a motion to dismiss. See ECF 15. Importantly, the U.S. Court of Appeals for the Fourth

Circuit has “repeatedly expressed a strong preference that, as a general matter, defaults be avoided

and that claims and defenses be disposed of on their merits.” Colleton Preparatory Acad., Inc. v.

Hoover Universal, Inc., 616 F.3d 413, 417 (4th Cir. 2010). Accordingly, Plaintiff’s motion for

default judgment is denied.

III. DEFENDANTS’ MOTIONS TO DISMISS AND PLAINTIFF’S MOTION FOR

PARTIAL SUMMARY JUDGMENT

Each government defendant has filed a motion to dismiss this case for lack of subject matter

jurisdiction and for Plaintiff’s failure to state a claim for relief. ECF 15 (State of Maryland’s

motion); ECF 25 (United States’ motion). Plaintiff opposed the State’s motion and filed a motion

for partial summary judgment against the State. ECF 19. Plaintiff separately opposed the United

States’ motion. ECF 27-1.

A. Standard of Review

A defendant may move to dismiss a complaint for lack of subject matter jurisdiction under

Rule 12(b)(1) of the Federal Rules of Civil Procedure. “The plaintiff bears the burden of proving,

by a preponderance of evidence, the existence of subject matter jurisdiction.” Mayor & City

Council of Balt. v. Trump, 416 F. Supp. 3d 452, 479 (D. Md. 2019). “A challenge to subject matter

jurisdiction under Rule 12(b)(1) may proceed in one of two ways: either a facial challenge ... or a

factual challenge.” Id. (citations omitted) (internal quotations omitted). A facial challenge asserts

“that the allegations pleaded in the complaint are insufficient to establish subject matter

jurisdiction.” Id. A defendant’s facial challenge “will be evaluated in accordance with the

procedural protections afforded under Rule 12(b)(6), which is to say that the facts alleged in the

Complaint will be taken as true . . . .” In re Jones v. Md. Dept. of Pub. Safety, Civ. No. JRR-21-

01889, 2024 WL 493269, at *3 (D. Md. Feb. 8, 2024).

A motion to dismiss under Rule 12(b)(6) constitutes an assertion by a defendant that, even

if the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a 12(b)(6) motion to

dismiss, a plaintiff must plead enough factual allegations “to state a claim to relief that is plausible

on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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).

“[A] plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

Twombly, 550 U.S. at 555 (citation modified). A complaint must contain factual allegations

sufficient “to raise a right to relief above the speculative level.” Id. “[T]ender[ing] ‘naked

assertion[s]’ devoid of ‘further factual enhancement’” does not suffice. Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 557) (third alteration in Iqbal). When considering a motion to

dismiss, a court must take the factual allegations in the complaint as true and draw all reasonable

inferences in favor of the plaintiff. King v. Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016).

Ordinarily, “a court is not to consider matters outside the pleadings or resolve factual

disputes when ruling on a motion to dismiss.” Bosiger v. U.S. Airways, Inc., 510 F.3d 442, 450

(4th Cir. 2007). However, courts may “consider documents that are explicitly incorporated into

the complaint by reference” or “document[s] submitted by the movant” that are “integral to the

complaint” if “there is no dispute about the document’s authenticity.” Goines v. Valley Cmty.

Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016) (citations omitted).

If the court does consider matters outside the pleadings, “the motion must be treated as one

for summary judgment under Rule 56[,]” but “[a]ll parties must be given a reasonable opportunity

to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). The U.S. Court of

Appeals for the Fourth Circuit “has articulated two requirements for proper conversion of a Rule

12(b)(6) motion to a Rule 56 motion: (1) notice and (2) a reasonable opportunity for discovery.”

Canty v. Corcoran, Civ. No. GLR-18-1404, 2022 WL 899278, at *4 (D. Md. Mar. 28, 2022) (citing

Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of Balt., 721 F.3d 264, 281 (4th Cir.

2013)). Converting a motion to dismiss to a summary judgment motion is not appropriate “where

the parties have not had an opportunity for reasonable discovery.” E.I. Du Pont de Nemours & Co.

v. Kolton Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011).

“[P]ro se filings are ‘h[e]ld to less stringent standards than formal pleadings drafted by

lawyers.’” Folkes v. Nelsen, 34 F.4th 258, 272 (4th Cir. 2022) (quoting Haines v. Kerner, 404 U.S.

519, 520 (1972)) (second alteration in Folkes). Accordingly, the Court must construe pro se

pleadings liberally. Bing v. Brivo Sys., LLC, 959 F.3d 605, 618 (4th Cir. 2020), cert. denied, 141

S. Ct. 1376 (2021). But “liberal construction does not require [the Court] to attempt to ‘discern the

unexpressed intent of the plaintiff’”; rather, the Court need only “determine the actual meaning of

the words used in the complaint.” Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir. 2013) (quoting

Laber v. Harvey, 438 F.3d 404, 413 n.3 (4th Cir. 2006) (en banc)). Thus, a pro se complaint “still

‘must contain enough facts to state a claim for relief that is plausible on its face.’” Thomas v. The

Salvation Army S. Territory, 841 F.3d 632, 637 (4th Cir. 2016) (quoting King, 825 F.3d at 212,

214 (quoting Twombly, 550 U.S. at 570)).

B. Claims Against the State of Maryland

In its motion to dismiss, Maryland argues that it is entitled to immunity from Plaintiff’s

constitutional claims under the Eleventh Amendment and that this Court lacks subject matter

jurisdiction over these claims. ECF 15. Plaintiff filed a response in opposition to the motion and

his own motion for partial summary judgment. ECF 19.

The Eleventh Amendment to the U.S. Constitution generally bars claims brought in federal

court under 42 U.S.C. § 1983 against a State, its departments and agencies, or state officials in

their official capacity. See Quern v. Jordan, 440 U.S. 332, 338–45 (1979); Kitchen v. Upshaw, 286

F.3d 179, 183 (4th Cir. 2002) (“The Eleventh Amendment[ ] limits the Article III jurisdiction of

the federal courts to hear cases against States and state officers acting in their official capacities.”)

(footnote omitted); Lawson v. Union Cnty. Clerk of Ct., 828 F.3d 239, 250 (4th Cir. 2016) (states

and state agencies alike are protected from federal suit by the Eleventh Amendment) (citations

omitted). Under the Eleventh Amendment, “an unconsenting State is immune from suits brought

in federal courts by her own citizens as well as by citizens of another State.” Amison v. George

Mason Univ., No. 23-1042, 2023 WL 8946774, at *2 (4th Cir. Dec. 28, 2023) (per curiam) (quoting

P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)). Without the

state’s consent, “a suit in which the State or one of its agencies or departments is named as the

defendant is proscribed by the Eleventh Amendment.” Pennhurst State Sch. and Hosp. v.

Halderman, 465 U.S. 89, 100 (1984). “[I]f a § 1983 action alleging a constitutional claim is

brought directly against a State, the Eleventh Amendment bars a federal court from granting any

relief on that claim.” Id. at 120; see also Gregory v. Currituck Cnty., No. 21-1363, 2022 WL

1598961, at *2 (4th Cir. May 20, 2022) (per curiam) (“[C]laims for damages brought under § 1983

can only be brought against ‘persons’ acting under color of state law, and neither states nor state

officials acting in their official capacities are considered ‘persons’ under § 1983.”) (citation

omitted).

Here, Plaintiff sues the Maryland state government for money damages under 42 U.S.C. §

1983 based on vague allegations of past constitutional violations by unnamed state officials acting

in their official capacities. Such claims are barred by the Eleventh Amendment. “While the State

of Maryland has waived its sovereign immunity for certain types of cases brought in State courts,

see Md. Code, Ann., State Gov’t, §§ 12-101, et seq., it has not waived its immunity under the

Eleventh Amendment to suit in federal court.” Dixon v. Baltimore City Police Dep’t, 345 F. Supp.

2d 512, 513 (D. Md. 2003), aff’d, 88 F. App’x 610 (4th Cir. 2004). Therefore, this Court lacks

subject matter jurisdiction over Plaintiff’s § 1983 claims for damages. See Pevia v. Hogan, 443 F.

Supp. 3d 612, 631 (D. Md. 2020) (“The Fourth Circuit has recognized that the defense of sovereign

immunity is a jurisdictional bar, stating that sovereign immunity deprives federal courts of

jurisdiction to hear claims, and a court finding that a party is entitled to sovereign immunity must

dismiss the action for lack of subject-matter jurisdiction.”) (quoting Cunningham v. Gen.

Dynamics Info. Tech., Inc., 888 F.3d 640, 649 (4th Cir. 2018)) (internal quotations omitted).

Plaintiff argues that the Ex Parte Young exception applies to his claims, and that Congress

has abrogated Maryland’s Eleventh Amendment immunity for claims involving racial

discrimination and constitutional violations under Title VI and Title VII of the Civil Rights Act of

1964, and the Fourteenth Amendment. ECF 19 at 5–6. There is no indication from the face of the

Complaint that Plaintiff seeks to assert any claim against the State of Maryland for violations of

Title VI or Title VII, and the Complaint fails to state a plausible claim for relief under the Ex Parte

Young doctrine.

The Ex Parte Young doctrine provides an exception to Eleventh Amendment immunity in

cases where a plaintiff seeks injunctive relief against state officials for violations of federal rights.

See Ex Parte Young, 209 U.S. 123 (1908). This exception “allows private citizens, in proper cases,

to petition a federal court to enjoin State officials in their official capacities from engaging in future

conduct that would violate the Constitution or a federal statute.” Indus. Servs. Grp., Inc. v. Dobson,

68 F.4th 155, 163 (4th Cir. 2023) (citing Ex Parte Young, 209 U.S. at 159). The Ex Parte Young

exception “rests on the [legal fiction] that when a federal court commands a state official to do

nothing more than refrain from violating federal law, he is not the State for sovereign-immunity

purposes.” Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 254–55 (2011). In determining

whether the Ex Parte Young exception applies, the court’s inquiry focuses on “whether the

injunctive relief sought is prospective or retroactive in nature.” Antrican v. Odom, 290 F.3d 178,

186 (4th Cir. 2002). “[A] court need only conduct a straightforward inquiry into whether the

complaint alleges an ongoing violation of federal law and seeks relief properly characterized as

prospective.’” Dobson, 68 F.4th at 163–64 (quoting Verizon Md. Inc. v. Pub. Serv. Comm’n, 535

U.S. 635, 645 (2002)).

Although the Complaint states that Plaintiff seeks injunctive relief “[t]o ensure that [he] is

granted equal access to funding opportunities and that his complaints are properly addressed[,]”

ECF 1 at 14, Plaintiff does not allege that any violations of federal law referenced in the Complaint

are ongoing. Further, Plaintiff fails to identify what “funding opportunities” or programs to which

he has been denied access.

Any APA claim Plaintiff asserts against the State of Maryland fails as a matter of law. The

APA’s definition of “agency” does not include state governmental entities. See 5 U.S.C.A. §

551(1); Hill v. Richardson, 7 F.3d 656, 658 (7th Cir. 1993) (“The Administrative Procedure Act

does not apply to state governments . . . .”).

Finally, Plaintiff’s negligence allegation fails to state a plausible claim. Generally, to state

a claim for negligence under Maryland law, a plaintiff must allege “1) that the defendant was under

a duty to protect the plaintiff from injury, 2) that the defendant breached that duty, 3) that the

plaintiff suffered actual injury or loss, and 4) that the loss or injury proximately resulted from the

defendant’s breach of the duty.” Rowhouses, Inc. v. Smith, 133 A.3d 1054, 1066 (Md. 2016)

(citation omitted). Here, Plaintiff does not identify any duty that the State had toward Plaintiff and

breached, resulting in actual injuries or losses. Plaintiff complains of defendants’ failure to respond

to reports he made to the FBI, but he does not allege having made any reports to the State or the

grounds for any duty the State had to respond to any such reports.

For the foregoing reasons, Plaintiff’s claims against the State of Maryland must be

dismissed. Plaintiff’s motion for partial summary judgment against the State is denied as moot.

C. Claims Against the United States

Plaintiff also alleges the United States violated his constitutional rights and failed to

investigate complaints Plaintiff lodged with federal agencies. The United States has moved to

dismiss the Complaint for failure to state a claim and lack of subject matter jurisdiction. ECF 25.

The claims against the United States must be dismissed for lack of subject matter jurisdiction

because the federal government has not waived its sovereign immunity with respect to any of the

claims asserted by Plaintiff.

Any waiver of sovereign immunity by the federal government must be “unequivocally

expressed in statutory text, . . . and will not be implied[.]” Lane v. Peña, 518 U.S. 187, 192 (1996)

(citations omitted). Waiver of sovereign immunity “is to be strictly construed, in terms of its scope,

in favor of the sovereign ....” Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999). A plaintiff

bears the burden of showing the existence of “an unequivocal waiver of sovereign immunity . . .

.” Lancaster v. Sec’y of Navy, 109 F.4th 283, 293 (4th Cir. 2024) (citing Welch v. United States,

409 F.3d 646, 651 (4th Cir. 2005)).

Although the Federal Tort Claims Act “‘waived the sovereign immunity of the United

States for certain torts committed by federal employees’ acting within the scope of their

employment[,]” Brownback v. King, 592 U.S. 209, 212 (2021) (quoting FDIC v. Meyer, 510 U.S.

471, 475–476 (1994)), any tort action instituted against the United States for money damages

requires that the claimant “first presented the claim to the appropriate Federal agency . . . .” 28

U.S.C. § 2675(a). The civil action may not be instituted until the claim has been “finally denied

by the agency in writing and sent by certified or registered mail.” Id. The filing of an administrative

claim “is jurisdictional and may not be waived.” Neal v. United States, 599 F. Supp. 3d 270, 312

(D. Md. 2022) (quoting Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986); see also

Est. of Van Emburgh by & through Van Emburgh v. United States, 95 F.4th 795, 800 (4th Cir.

2024). Thus, “dismissal is mandatory when a plaintiff fails to file a claim with the proper

administrative agency[.]” Henderson, 785 F.2d at 124. Plaintiff has failed to demonstrate that he

satisfied the jurisdictional prerequisite of filing an administrative claim before filing this suit.

Even if Plaintiff satisfied the exhaustion requirement, he fails to state a plausible

negligence claim against the United States. The only specific conduct he alleges that might

conceivably support a negligence claim is the FBI’s failure to investigate and respond to his

complaints. Any tort claim based on these generalized allegations would be barred by discretionary

function doctrine.

The FTCA’s waiver of sovereign immunity “is circumscribed by numerous exceptions,”

and “the plaintiff bears the burden of demonstrating jurisdiction and showing that none of the

FTCA’s exceptions apply.” Wood v. United States, 845 F.3d 123, 127 (4th Cir. 2017). One of those

exceptions applies to “claims ‘based upon the exercise or performance or the failure to exercise or

perform a discretionary function or duty on the part of a federal agency or an employee of the

Government, whether or not the discretion involved be abused.’” Id. (quoting 28 U.S.C. § 2680(a))

(emphasis in Wood). A “two-step analysis” is used to determine whether this “discretionary

function exception” applies. Id. at 128. “First, a court must determine whether the conduct in

question ‘involves an element of judgment or choice.’” Id. (quoting Berkovitz ex rel. Berkovitz v.

United States, 486 U.S. 531, 536 (1988)). “Second, when the challenged conduct is the product of

judgment or choice, the court must still determine whether the decision made was ‘based on

considerations of public policy.’” Id. (quoting Berkovitz, 486 U.S. at 537).

Plaintiff’s argument against application of the discretionary function exception to his

claims does not involve the foregoing two-step analysis. In the absence of greater factual detail

from Plaintiff, the Court finds that the conduct alleged in his Complaint both “involves an element

of judgment or choice” by federal officials and is “based on considerations of public policy.”

Berkovitz, 486 U.S. at 536–37. Other courts have come to the same conclusion in similar cases.

See Blanco Ayala v. United States, 982 F.3d 209, 215 (4th Cir. 2020) (“In deciding whom to

investigate, detain, and then remove, DHS officers must make all the kinds of classic judgment

calls the discretionary function exception was meant to exempt from tort liability.”); Linder v.

United States, 937 F.3d 1087, 1091 (7th Cir. 2019) (“No one can doubt that the investigation of

(potential) crimes, and the management of a federal workforce in which one employee is a

(potential) criminal, are discretion-laden subjects.”). Indeed, “[c]ourts have overwhelmingly found

that claims of negligent investigation or negligent arrest by law enforcement officers are barred by

the discretionary function exception.” Burgess v. Watson, No. 1:12CV810, 2014 WL 4540256, at

*3 (M.D.N.C. Sept. 11, 2014) (citing cases). In sum, the generally vague allegations in the

Complaint fail to state a plausible tort claim against the federal government to which it is not

immune.

Plaintiff’s Bivens claims also fail as a matter of law. To state a Bivens claim, a plaintiff

must allege that “‘a federal agent acting under color of h[er] [federal] authority’ violated his

constitutional rights.” Williams v. United States, Civ. No. DKC-21-537, 2021 WL 1720230, at *2

(D. Md. Apr. 30, 2021) (quoting Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388,

389 (1971)). “Although Bivens recognizes a personal-capacity cause of action for damages against

federal officials for violations of federal constitutional rights, Bivens does not operate as a waiver

of sovereign immunity for actions against the Federal Government and its agencies.” Everett v.

Francis, Civ. No. 5:07CV135, 2009 WL 2971359, at *3 (N.D.W. Va. Sept. 16, 2009) (citing

Bivens, 403 U.S. at 397). Moreover, the “Supreme Court has refused to extend Bivens a number

of times and expansion of the Bivens remedy is now disfavored.” Williams, 2021 WL 1720230, at

*3 (citing Ziglar v. Abassi, 137 S.Ct. 1843, 1848 (2019)). The claims Plaintiff has asserted here—

for example, federal officials denying Plaintiff’s company grants, see ECF 1 at 7— “do not fit into

any of the recognized causes of actions to which Bivens has been extended.” Id.

Any APA claim Plaintiff seeks to assert against the United States likewise fails for failure

to state a plausible claim for relief. The APA permits judicial review a “final agency action for

which there is no other adequate remedy in a court . . . .” 5 U.S.C. § 704. Under the APA, courts

may “hold unlawful and set aside agency action, findings, and conclusions found to be” (1)

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;” (2) in

excess of statutory jurisdiction, authority, or limitations, or short of statutory right; and (3)

“without observance of procedure required by law[.]” 5 U.S.C. § 706(2)(A), (C), (D). Two

conditions must be met for an agency action to be deemed “final” for purposes of the APA. See

U.S. Army Corps of Eng’rs v. Hawkes Co., 578 U.S. 590, 597 (2016); Bennett v. Spear, 520 U.S.

154, 177 (1997). “First, the action must mark the ‘consummation’ of the agency’s decisionmaking

process[;] it must not be of a merely tentative or interlocutory nature.” Bennett, 520 U.S. at 177–

78 (quoting Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113

(1948)). Second, “the action must be one by which ‘rights or obligations have been determined,’

or from which ‘legal consequences will flow[.]’” Id. at 178 (quoting Port of Boston Marine

Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)). Here, Plaintiff

alleges in conclusory and formulaic fashion that “[t]he Defendants failed to provide a reasoned

explanation for denying the Plaintiff’s funding applications, making their actions arbitrary and

capricious.” ECF 1 at 10. But Plaintiff fails to allege sufficient facts to identify what agency

actions—what denials of “funding applications”—he seeks to challenge.

Accordingly, Plaintiffs’ claims against the United States must be dismissed for lack of

subject matter jurisdiction and failure to state a claim.

IV. PLAINTIFF’S MOTION TO JOIN PARTIES

In a motion styled as a “Motion to Join Necessary Parties Pursuant to Fed. R. Civ. P. 19(a)

and Rule 21,” Plaintiff seeks leave to join seven government agencies as defendants in this case.

ECF 27. The United States opposes this motion, arguing that leave of court is required to join these

defendants under Rule 15(a). ECF 30. Because all claims asserted in this case are subject to

dismissal, for reasons explained in Part III, supra, the Court will deny the motion to join parties as

moot. The Court notes, however, that the joinder of the listed federal and state agencies does not

cure any of the above noted deficiencies in Plaintiff’s Complaint. Therefore, to the extent Plaintiff

seeks an amendment of his Complaint under Rule 15(a), see Fed. R. Civ. P. 15(a),1 Plaintiff’s

proposed amendment is futile, and therefore any motion for leave to amend must be denied.

V. MOTION TO APPOINT COUNSEL

Plaintiff filed a motion seeking appointment of counsel after the summonses issued in this

case. ECF 13. Under 28 U.S.C. § 1915(e)(1), a court of the United States may request an attorney

to represent any person unable to afford counsel. A district court’s power to appoint counsel under

1 The Fourth Circuit has endorsed a liberal approach to granting motions to amend, interpreting

Rule 15(a) “to provide that leave to amend a pleading should be denied only when the amendment would

be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the

amendment would have been futile.” Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (internal citations

omitted). Leave to amend should be denied as futile “when the proposed amendment is clearly insufficient

or frivolous on its face.” Johnson v. Oroweat Foods Co., 785 F.2d 503, 510 (4th Cir. 1986) (citation

omitted). Here, Plaintiff’s amendment to add various federal and state agencies that have sovereign

immunity, and against whom Plaintiff has failed to state a plausible claim, is “clearly insufficient.” Id.

28 U.S.C. § 1915(e)(1) is a discretionary one and may be considered where an indigent claimant

presents exceptional circumstances. See Cook v. Bounds, 518 F.2d 779 (4th Cir. 1975); Branch v.

Cole, 686 F.2d 264 (5th Cir. 1982). There is no right to appointment of counsel in a civil case; an

indigent claimant must present “exceptional circumstances.” Miller v. Simmons, 814 F.2d 962, 966

(4th Cir. 1987). Exceptional circumstances exist where a “pro se litigant has a colorable claim but

lacks the capacity to present it.” Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984) (citation

omitted), abrogated on other grounds by Mallard v. U.S. Dist. Ct., 490 U.S. 296, 298 (1989)

(holding that 28 U.S.C. § 1915 does not authorize compulsory appointment of counsel); see also

Jenkins v. Woodard, 109 F.4th 242, 247 (4th Cir. 2024) (“[A] district court must conduct a fact

specific, two-part inquiry to assess whether a case presents exceptional circumstances before it

decides whether to appoint counsel[,]” including “whether the plaintiff has a colorable claim” and

“considering the claim’s objective complexity and the plaintiff’s subjective abilities, whether the

plaintiff lacks the capacity to present it.” (internal quotation marks and citation omitted)).

Here, for reasons explained in Part III, supra, the Court does not find that Plaintiff has a

colorable claim; nor does the Court find that Plaintiff lacks the capacity to present any colorable

claim he may have. His pleading and motions are clear; they simply lack merit. Accordingly,

Plaintiff’s motion to appoint counsel is denied.

VI. CONCLUSION

For the foregoing reasons, Plaintiff’s motions are denied, and the defendants’ motions to

dismiss are granted. The Complaint is dismissed without prejudice. However, in consideration of

Plaintiff’s pro se status, he will be afforded a final opportunity to present an amended pleading

that satisfies the pleading standards explained in this Memorandum Order. Plaintiff shall be

granted 28 days to file a motion for leave to amend under Rule 15 of the Federal Rules of Civil

Procedure, attaching a copy of the proposed amended pleading. The Court notes that the proposed

amendment supersedes all prior pleadings and therefore must include all facts Plaintiff seeks to

present in support of her claims. If Plaintiff does not file a timely motion for leave to amend, this

case shall be closed.

A separate Order will issue.

9/30/25 /S/

Date Matthew J. Maddox

United States District Judge