Petition for Writ of Certiorari — James Stuart Faller, II, Petitioner v. Department of Justice, et al.

BLANK PAGE

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Order, U.S. Court of Appeals for the

Sixth Circuit (June 25, 2025) o.oo. cee eecseeseesseeeee la

Judgment, U.S. District Court for the Western

District of Kentucky, Louisville Division

(October 1, 2024) swissssscssrcucsceaassusesdadessecenceoeneeoncee 7a

Memorandum Opinion & Order, U.S. District

Court for the Western District of Kentucky,

Louisville Division (September 30, 2024).......... 8a

Order Dismissing Case, Commonwealth of

Kentucky 40th Judicial Circuit

(Notice January 19, 2023;

Entered February 22, 2028)... .eeecceeesseeeseee 3la

Order Granting Motion to Dismiss Indictment

with Prejudice (October 13, 2021) .....eeeeeeeeeee 34a

REHEARING ORDERS

Order Denying Petition for Rehearing En Banc,

U.S. Court of Appeals for the Sixth Circuit

(August 8, 2025) ........cccccsscccsssceesseceeessceeseeeesees 38a

APPENDIX TABLE OF CONTENTS (Cont.)

OTHER DOCUMENTS

Complaint, U.S. District Court for the Western

District of Kentucky Louisville Division

(October 12, 2028) ........ccccecsesesssececeesesseeesseesecees

Ex. A. Letter from Senator Adrienne

Southworth to Justice Kavanaugh

(August 24, 2022) cccpsscsessssesmacsouesnvesnssancunsussescsics

Unsworn Declaration of John Doe

(February 17, 2021) .....cccccccccccccccceceseeeeeeeeeeceeeees

Sworn Affirmation of Judge Ray Corns

(December 29, 2015) ......ccccccccccccccceseceeeeeeeaenees

Affidavit of Vincent Aprile

(April 20, 2006) csscsssccsssccsvassnsaseaissscctcecunnteseveiees

Sworn Attestation of Robert L. Bertram

(June 12, 2007) ......ccececcccccccsscessesseesececeeeseseeeeenes

App.la

ORDER, U.S. COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(JUNE 25, 2025)

NOT RECOMMENDED FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JAMES STUART FALLER II,

Plaintiff-Appellant,

v.

DEPARTMENT OF JUSTICE, ET AL.,

Defendants-Appellees.

No. 24-5955

On Appeal from the U.S. District Court for the Western District of Kentucky

Before: SILER, KETHLEDGE, and WHITE,

Circuit Judges.

ORDER

James Stuart Faller II, proceeding pro se, appeals

the district court’s judgment dismissing his civil complaint. This case has been referred to a panel of the

court that, upon examination, unanimously agrees

that oral argument is not needed. See Fed. R. App. P.

App.2a

34(a). For the following reasons, we affirm the district

court’s judgment.

Faller sued the United States Department of

Justice, unknown agents with the Federal Bureau of

Investigation and Internal Revenue Service, and the

Commonwealth of Kentucky through its governor,

Andy Beshear. Faller alleged that the defendants conspired to violate his federal rights because he is a whistleblower. According to Faller, the defendants conducted illegal searches and seizures, improperly convicted him of crimes based on false indictments, attempted to assassinate him, and harassed, threatened,

and engaged in violence toward him and his family,

resulting in his children’s death and his wife’s suicide.

Faller sought monetary relief and a writ of mandamus

or injunction ordering the defendants to remove from

the internet any articles portraying him negatively.

The district court dismissed the complaint, concluding

that Faller’s claims are untimely or that he failed to

state a viable claim for relief.

We review de novo the dismissal of Faller’s complaint. See Devereux v. Knox County, 15 F.4th 388, 392

(6th Cir. 2021). To avoid dismissal, a plaintiff must

allege facts that, accepted as true, state a claim to relief that is plausible on its face. Brent v. Wayne Cnty.

Dep't of Hum. Servs., 901 F.3d 656, 675-76 (6th Cir.

2018). We construe the complaint in the light most favorable to Faller and draw all reasonable inferences

in his favor. Id. at 676. We also liberally construe his

pro se filings and hold him to a less stringent standard. Id.

The district court properly dismissed Faller’s

complaint as to the federal defendants. Faller first

claimed that the federal defendants are liable under

App.3a

42 U.S.C. § 1983, which requires a plaintiff to allege

facts showing that he was deprived of a federal right

by a person acting under color of state law. See Haines

v. Fed. Motor Carrier Safety Admin., 814 F.3d 417,

429 (6th Cir. 2016). Actions taken by the federal government and its officials are generally governed by

and taken pursuant to federal law, see id., and Faller

did not allege specific facts showing that the federal

defendants acted under color of state law or influenced

state action, see Heyne v. Metro. Nashville Pub. Schs.,

655 F.3d 556, 563 (6th Cir. 2011) (explaining that

civil conspiracies under § 1983 must be pleaded with

specificity). Thus, the district court properly dismissed

Faller’s § 1983 claims against the federal defendants.

Faller next claimed that the federal defendants

are liable under the Federal Tort Claims Act (FTCA)

for violating his constitutional rights. The district

court properly dismissed these claims because constitutional tort claims are not cognizable under the FTCA.

See FDIC v. Meyer, 510 U.S. 471, 477-78 (1994). And,

to the extent that Faller’s claims rely on a lack of

proper supervision or training, the defendants are entitled to sovereign immunity because the claims fall

within the FTCA’s discretionary function exception. See

O'Bryan v. Holy See, 556 F.3d 361, 384 (6th Cir. 2009).

Faller next raised claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971), against the federal defendants,

asserting that they had violated his First, Fourth,

Fifth, Sixth, Eighth, and Fourteenth Amendment rights.

The district court properly dismissed the claims

against the Department of Justice because a Bivens

action cannot be maintained against a federal agency.

See Meyer, 510 U.S. at 486. As for Faller’s claims against

App.4a

the federal agents, we determine whether a Bivens remedy exists by first asking whether the case presents a

new Bivens context, that is, whether it is meaningfully different from the three cases in which the

Supreme Court has implied a damages action. See Egbert v. Boule, 596 U.S. 482, 492 (2022). “[I]f a claim

arises in a new context, a Bivens remedy is unavailable if there are ‘special factors’ indicating that the

Judiciary is at least arguably less equipped than

Congress to ‘weigh the costs and benefits of allowing

a damages action to proceed.” Jd. (quoting Ziglar v.

Abbasi, 582 U.S. 120, 136 (2017)).

Faller’s First and Sixth Amendment claims, his

general due-process and equal-protection claims under

the Fifth and Fourteenth Amendments, and his Eighth

Amendment claims based on the defendants allegedly

punishing him for non-existent crimes and harassing

and committing violence toward him and his family

fall outside the existing contexts for which the Supreme

Court has implied a Bivens remedy. See id. at 490-91

(explaining that the Supreme Court has recognized a

Bivens remedy only for a Fourth Amendment violation,

a Fifth Amendment sex-discrimination claim, and an

Eighth Amendment inadequate-medical-care claim);

Elhady v. Unidentified CBP Agents, 18 F.4th 880, 883

(6th Cir. 2021) (explaining that a “context is new if it

differs in virtually any way from the Bivens trilogy’).

Thus, the district court properly dismissed these claims.

As for Faller’s Fourth Amendment claim that the

federal defendants relied on falsified materials to obtain a search warrant and conducted illegal raids, the

district court properly dismissed the claim as untimely. The allegedly illegal activity occurred around

April 2016, meaning that the applicable one-year lim-

App.5a

itations period expired well before Faller filed his

complaint in 2023. See Mitchell v. Chapman, 343

F.3d 811, 825 (6th Cir. 2003) (recognizing that the

statute of limitations for a Bivens claim in Kentucky

is one year). And the continuing-violations doctrine

does not render Faller’s claim timely because it is triggered by continuing unlawful acts rather than a

continuing injury. See Eidson v. Tenn. Dep’t of Child.’s

Servs., 510 F.3d 631, 635 (6th Cir. 2007).

The district court also properly dismissed the

claims against Governor Beshear and the Commonwealth

of Kentucky. Because the claims against the governor

are in his official capacity, they are effectively claims

against the Commonwealth. See Will v. Mich. Dep’t of

State Police, 491 U.S. 58, 71 (1989). Thus, the § 1983

claims for damages are barred by sovereign immunity

because Kentucky has not waived its sovereign immunity for § 1983 suits, Congress did not abrogate the

states’ sovereign immunity through § 1983, and the

Ex Parte Young exception does not extend to retroactive relief or money-damages claims. See Boler v.

Earley, 865 F.3d 391, 409-10, 412 (6th Cir. 2017);

Grinter v. Knight, 532 F.8d 567, 572 (6th Cir. 2008).

In addition, the district court properly dismissed

Faller’s request for a writ of mandamus or injunctive

relief because he did not allege facts showing that the

governor or Commonwealth had published or maintained any internet content that violated his rights.

Finally, the district court properly dismissed the

FTCA and Bivens claims against the governor and

Commonwealth because an FTCA claim must be

raised against the United States, see Meyer, 510 U.S.

at 477, and a Bivens claim runs only against federal

agents or officials. See Egbert, 596 U.S. at 490-91.

App.6a

We therefore AFFIRM the district court’s judgment.

Entered by Order of the Court

/s/ Kelly L. Stephens

Clerk

App.7a

JUDGMENT, U.S. DISTRICT COURT FOR THE

WESTERN DISTRICT OF KENTUCKY,

LOUISVILLE DIVISION

(OCTOBER 1, 2024)

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

JAMES STUART FALLER, II,

Plaintiff,

Vv.

UNITED STATES

DEPARTMENT OF JUSTICE, ET AL.,

Defendants.

No. 3:23-cv-526-BJB

Before: BENJAMIN BEATON, U.S. District Judge.

JUDGMENT

Based on the Court’s decision to grant the Defendants’ motions to dismiss with prejudice (DNs 11

& 16) and deny the Plaintiff's motions to strike (DN

15), the Court enters judgment in the Defendants’ favor.

This is a final order.

/s/ Benjamin Beaton

U.S. District Judge

October 1, 2024

App.8a

MEMORANDUM OPINION & ORDER,

U.S. DISTRICT COURT FOR THE

WESTERN DISTRICT OF KENTUCKY,

LOUISVILLE DIVISION

(SEPTEMBER 30, 2024)

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

JAMES STUART FALLER, II,

Plaintiff,

Vv.

UNITED STATES

DEPARTMENT OF JUSTICE, ET AL..,

Defendants.

No. 3:23-cv-526-BJB

Before: BENJAMIN BEATON, U.S. District Judge.

MEMORANDUM OPINION & ORDER

James Faller filed this pro se complaint alleging

seven different legal theories that he contends entitle

him to damages. Each one, according to the Complaint,

is “actionable under 42 U.S.C. § 1983, Bivens,! and

the Federal Tort Claims Act.” Complaint (DN 1) at

1 Bivens v. Six Unknown Named Narcotics Agents, 403 U.S. 388

(1971).

App.9a

17-20 (cleaned up). As Defendants he names the

United States Department of Justice, unknown FBI

agents, unknown IRS agents, and the Commonwealth

of Kentucky “through” Governor Andy Beshear. Jd. at

1.

This is not Faller’s first foray in federal court;

various courts have repeatedly confronted and dismissed similar civil allegations against overlapping

defendants. See DOJ Motion to Dismiss (DN 16) at 2

(collecting prior lawsuits). And the federal government

twice prosecuted and convicted Faller for tax-and

fraud-related offenses. See generally United States v.

Faller, 675 F. App’x 557 (6th Cir. 2017); United States

v. Murray, et al., 154 F. App’x 740 (11th Cir. 2005).

This Court recently rejected Faller’s coram nobis petition directed at his convictions in the Western District

of Kentucky. See DN 455, United States v. Faller, No.

1:18-cr-29, 2024 WL 2933468 (W.D. Ky. June 10,

2024). And federal and Kentucky prosecutors apparently indicted Faller based on additional allegations

before ultimately dismissing each set of charges. See

Complaint at 4, 11; DOJ MTD at 38.

This lawsuit contends that these indictments and

related investigations unlawfully violated his civil

rights. According to Faller, the Defendants conspired

to indict him—once in federal court and twice in Kentucky state court—to silence his whistleblower

campaign against corruption. Complaint at 10. The Defendants also allegedly conspired to (among other

things) cause the sexual assault of his child, raids on

his homes and offices, the death of his wife, and his

own attempted assassination on more than a dozen

occasions. Complaint at 2; Response to DOJ MTD (DN

App.10a

18) at 2-3.2 As relief, Faller requests billions of dollars

in actual and punitive damages related to his medical

needs, the loss of his airplanes, wrongful death, emotional distress, and the loss of valuable corporate and

residential properties. Complaint at 20-22. He also

seeks mandamus ordering the Defendants to remove

from the internet articles placing Faller in a bad light.

Id. at 22.

The Defendants—in separate federal (DN 16)

and state (DN 11) groupings— moved to dismiss

Faller’s complaint on several grounds discussed below.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Courts must accept factual allegations as true but

needn’t accept “legal conclusions” and conclusory

statements that lack factual underpinnings. Id.

A. The federal Government.

The United States Department of Justice, acting

on behalf of itself as well as the unknown FBI and IRS

agents, moved to dismiss Faller’s claims (as untimely,

beyond the Court’s jurisdiction, and insufficiently

2 Faller states in his complaint that he believes the Court will

treat his claims unfairly because he is a pro se plaintiff presenting

allegations of a broad conspiracy. Complaint at 2. The Court,

however, applies “liberal pleading standards... to pro se litigants”

such as Faller—giving them the benefit of every reasonable

doubt. Carter v. Logsdon, 4:23-cv-30, 2024 WL 1323658, at *3 (W.D.

Ky. Mar. 27, 2024) (applying Erickson v. Pardus, 551 U.S. 89, 94

(2007) and denying the motion to dismiss a pro se complaint).

App.lla

pled) against these federal defendants. DOJ MTD at

1, 24.

Section 1983 claims.

To recover under § 1983, a plaintiff “must show”

among other things “that the alleged deprivation [of

federal rights] was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48

(1988). “Because federal officials typically act under

color of federal law, they are rarely subject to liability

under § 1983.” Strickland on Behalf of Strickland v.

Shalala, 123 F.3d 863, 866 (6th Cir. 1997). Federal

agents may in some limited circumstances bear liability under § 1983 if they act “under color of state law.”

Id. A “federal agency,” by contrast, “is not a ‘person’

under § 1983, and therefore may not be sued under

this act.” Clark v. City of Anchorage, No. 04-cv-677,

2006 WL 181874, at *3 (W.D. Ky. Jan. 17, 2006) (citing

Hindes v. FDIC, 137 F.3d 148, 158 (8d Cir. 1998)).

That limitation serves to eliminate Faller’s § 1988

claims against the Justice Department. And his

§ 1983 claims against the (unknown) federal agents

also fail because nothing in the Complaint indicates

that any of them (or the DOJ, for that matter) were

acting under color of state law. Faller merely alleges,

in conclusory fashion, that the various assaults and

insults he suffered were wrapped up in the same conspiracy between state and federal officials. See Complaint at 12-18.

This is insufficient. Faller never pleads with any

specificity how any federal agent or agency may have

exercised or influenced state action. “[P]leading requirements governing civil conspiracies,” moreover, “are

relatively strict.” Fieger v. Cox, 524 F.3d 770, 776 (6th

App.12a

Cir. 2008). “Although circumstantial evidence may

prove a conspiracy, ‘lilt is well-settled that conspiracy

claims must be pled with some degree of specificity

and that vague and conclusory allegations unsupported by material facts will not be sufficient to state

such a claim under § 1983.” Heyne v. Metro. Nashville

Pub. Sch., 655 F.3d 556, 563 (6th Cir. 2011) (quoting

Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2008)).

The allegations here include no plausible facts that

would support the existence of such a conspiracy.

Because the Court need not accept unsupported

“legal conclusions” or conclusory statements, Faller’s

§ 1983 claims against the federal Defendants fail. Iqbal, 556 U.S. at 678.

FTCA claims.

Faller also argues that he may sue the Department

and its agents under the Federal Tort Claims Act

based on their alleged violations of his constitutional

rights and failure to properly supervise, control, and

train federal employees. Complaint at 7, 17-19. Because

the Justice Department maintains these allegations

fall outside the FTCA’s limited exceptions to sovereign

immunity, however, it seeks dismissal for lack of jurisdiction. DOJ MTD at 12.

As the Department sees things, Faller has alleged

only constitutional torts, while the FTCA’s limited immunity waiver covers only non-constitutional torts. “By

definition, federal law, not state law, provides the

source of liability for a claim alleging the deprivation

of a federal constitutional right.” F.D.I.C. v. Meyer,

510 U.S. 471, 478 (1994). So Faller cannot succeed on

a claim under the FTCA that alleges federal constitutional violations by federal defendants.

App.13a

And to the extent the supervisory and training

claims might rest on state rather than federal law, as

Faller sometimes suggests, see Complaint at 17—20;

see also DOJ MTD at 18, their prosecutorial and investigatory nature supports the Department's position that

these allegations would fall within the FTCA’s discretionary-function exception. 28 U.S.C. § 2680(a) (sovereign immunity applies to “[a]Jny claim . . . 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.”).8

“(H]liring, supervision, training, and retention require policy judgments—the type that Congress

intended to shield from tort liability.” Snyder v. United

States, 590 F. App’x 505, 510 (6th Cir. 2014) (FBI’s

hiring, retention, and supervision of agents alleged to

have falsely arrested plaintiff came within discretionary-functions exception); see also Stout v. United

States, 721 F. App’x 462, 467 (6th Cir. 2018) (VA’s

hiring, retention, and supervision of nurse who allegedly sexually assaulted plaintiff came within discretionary-function exception). So the FTCA claims

against the federal Defendants are likewise subject to

3 Faller’s only express reference to state law appears on page 10

of the Complaint: “Faller also invoked the supplemental jurisdiction of this Court as it pertains to violations of state laws pursuant to 28 U.S.C. § 1867.” But the papers nowhere else identify

any state laws the Defendants allegedly violated or state torts

they allegedly committed. His opposition brief, in fact, insists

that his claims all rest on violations of federal constitutional

law—not state law. Response to DOJ MTD at 11-18 (“These acts

(Without calling out the constitutional amendment) involve

[....]”) (emphasis in original).

App.14a

dismissal—regardless of whether they rest on federal

or state law.

Bivens claims.

Faller claims the federal government and agents

owe him damages for violating his First, Fourth, Fifth,

Sixth, Eighth, and Fourteenth Amendment rights.

Complaint at 17-20 (citing Bivens v. Six Unknown

Named Narcotics Agents, 403 U.S. 388 (1971)). The

Bivens doctrine, at least as originally conceived, “recognized a damages remedy for alleged violations of

the Fourth Amendment by federal officers.” Enriquez-

Perdomo v. Newman, 54 F.4th 855, 867 (6th Cir. 2022).

And only against officers: Similar to the § 1983 cause

of action discussed above, the remedy doesn’t apply to

agencies. The Justice Department, therefore, “is not

subject to liability under Bivens” as a matter of law.

Thomas v. Glaxo Wellcome, Inc., 93 F. App’x 807, 808

(6th Cir. 2004) (citing Meyer, 510 U.S. at 486).

And the Supreme Court has carefully circumscribed that judgemade cause of action even with

respect to federal officers. The Bivens Court initially

inferred in the Fourth Amendment a cause of action to

sue agents who allegedly entered Webster Bivens’

home without a warrant or probable cause and used

unreasonable force while searching the residence.

Bivens, 403 U.S. at 39197. Since the Court handed

down that decision in 1971, however, it has only recognized two other constitutional provisions that may

give rise to a private right of action for damages

against federal agents: (1) the Fifth Amendment’s Due

Process Clause as applied to gender discrimination,

Davis v. Passman, 442 U.S. 228, 248-49 (1979), and

(2) the Eighth Amendment as applied to inadequate

App.15a

prisoner medical care, Carlson v. Green, 446 US. 14,

17-18 (1980).

Plaintiffs have repeatedly tried and failed to persuade the Court to extend the doctrine to additional

provisions, see, e.g., Bush v. Lucas, 462 U.S. 367, 390

(1983) (declining to extend Bivens to First Amendment

violations), or even to different contexts under amendments that previously embraced Bivens-style remedies,

see, e.g., Minneci v. Pollard, 565 U.S. 118, 181 (2012)

(declining to extend—from public to private prison employees—the Bivens cause of action recognized in

Carlson regarding Eighth Amendment violations).

Given separation-of-powers concerns, the Court’s more

recent articulations of the doctrine have cast considerable doubt (to put it mildly) on whether courts may

and should recognize such a cause of action in other

contexts. The earlier Bivens decisions “rest on an outdated conception of [the] judicial role,” according to

the Sixth Circuit, and “were handed down at a time

when the Court routinely assumed that it was the

judge’s job to infer a cause of action whenever a

substantive provision may have been violated, even if

the text didn’t offer one.” Elhady v. Unidentified CBP

Agents, 18 F.4th 880, 883 (6th Cir. 2021) (citing Hernandez v. Mesa, 140 S. Ct. 735, 741 (2020)). “Expanding

the Bivens remedy is now a disfavored judicial activity,” so courts only apply the doctrine to facts closely

fitting the handful of precedential Bivens decisions.

Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (cleaned up).

To determine whether a Bivens claim is valid today, courts ask two questions: (1) “whether the case

presents a new Bivens context—i.e., is it meaningfully

different from the three cases in which the Court has

implied a damages action” and (2) if so, whether “special

App.16a

factors indicate that the Judiciary is at least arguably

less equipped than Congress to weigh the costs and

benefits of allowing a damages action to proceed.” Egbert v. Boule, 596 U.S. 482, 483 (2022) (cleaned up).

The existence of “any” special factor “alone” is enough

to “limit the power of the Judiciary to infer a new

Bivens cause of action.” Id. at 493 (cleaned up); see

also id. at 496 (asking “whether there is any rational

reason (even one) to think that Congress is better

suited to ‘weigh the costs and benefits of allowing a

damages action to proceed.”) (quoting Ziglar, 582 U.S.

at 136).

As the federal Defendants highlight, Faller does

not present any authority that would support his

Bivens claims in connection with the alleged violations

of his First, Fifth, Sixth, Eighth, or Fourteenth

Amendment rights. DOJ Reply (DN 21) at 4. The

Supreme Court has never held that Bivens extends to

First, Sixth, or Fourteenth Amendment claims. And

many courts have rejected attempts to infer new

causes of action on those bases.4 The Court has recognized a right of action in a particular Fifth Amendment context: the gender-based discrimination at issue

in Davis v. Passman. But Faller’s Fifth Amendment

theory—which apparently concerns his indictment

4 See Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) (‘We have

never held that Bivens extends to First Amendment claims.”) (citation omitted); Montgomery v. Ferentino, No. 4:17-cv-326, 2019

WL 7372323, at *7 (N.D. Ohio Dec. 31, 2019), aff'd, No. 20-3114,

2021 WL 3204843 (6th Cir. Feb. 24, 2021) (“The Supreme Court

has not recognized an implied cause of action under Bivens for

alleged violations of the Sixth Amendment.”); Huang v. Univ. of

Pikeville, No. 7:18-cv-11, 2019 WL 2357370, at *3 (E.D. Ky. June 4,

2019) (“[N]either Bivens [nlor its progeny authorizes a private

Fourteenth-Amendment cause of action.”).

App.17a

and its subsequent dismissal—sits in an entirely “new

context” from the allegations at issue in Davis. Ziglar,

582 U.S. at 1386. Because Faller’s “case is different in

a meaningful way from previous Bivens cases,” id. at

139, his attempt to infer a Bivens claim regarding the

Fifth Amendment—as with the First, Sixth, and Fourteenth—fails at the outset. Further, the novel and

hard-to-follow legal theories he advances, even assuming they might be proven true, are ones that Congress rather than courts should consider before inviting new damages suits against federal officers. Each

would potentially involve enormous financial burdens, unpredictable systematic consequences, and

conflicting remedial schemes—each of which the Supreme Court has recognized as a “special factor”

counseling against extending Bivens. See Egbert, 596

U.S. at 493; Bivens, 403 U.S. at 396.

Faller’s Eighth Amendment allegations of inadequate medical treatment similarly fail. Though

hard to follow, this claim involves allegations of “cruel

and unusual punishment for non-existent crimes” and

“virtual hunting and harassment, including threats and

actual violence against Faller and his family in an effort to silence and discredit him, ultimately leading to

the wrongful death” of three family members. Complaint

at 18. Faller’s allegations, it’s true, accuse prison officials of delaying or ignoring proper medical care—

apparently from an incident in which prison officials

allegedly tried to murder him by running him over

with a tractor in order to suppress his voice and views.

See id.; Response to DOJ MTD at 5.

Regardless of the seriousness of these accusations,

they present a distinct set of circumstances from the

Eighth Amendment concerns in Carlson. There, the

App.18a

defendants (federal prison officials) allegedly showed

race-based deliberate indifference toward the inmate’s

medical needs. Those officials allegedly ignored “the

advice of doctors,” “administered contra-indicated

drugs,” “use[d] a respirator known to be inoperative,”

and “delayed ... transfer to an outside hospital’—ultimately resulting in a prisoner’s death. Carlson, 446

U.S. at 16 n.1. Faller’s theory, by contrast, effectively

alleges assault and prior restraint. His actual pleadings don’t focus on medical indifference, which make

only a tardy appearance in his response brief and

therefore cannot help avoid dismissal.

In any event, even if those allegations did exist,

they pose a new set of circumstances distinct from

race-based medical indifference. Faller doesn’t allege

he was mistreated because of how he looked or what

group he belonged to—but instead because the Government was out to get him. The lack of medical care

(even if it is to be considered and believed) was incidental at best to Faller’s allegations of a wide-ranging

conspiracy to muzzle and ultimately murder him.

These accusations of individualized targeting of prisoners pose a “new context” about which the Court

must use “caution” before “extending Bivens remedies.”

Ziglar, 582 U.S. at 136 (cleaned up). No such remedies

will “be available if there are special factors counselling

hesitation in the absence of affirmative action by Conegress.” Id. Faris’s allegations certainly present a set of

circumstances in which legislators rather than judges

are authorized to predict and weigh the “systemwide”

consequences of blessing such a remedy for the violations

Faller alleges. Id. And “that uncertainty alone is a

special factor that forecloses relief.” Egbert, 596 U.S.

at 493. So no grounds exist to extend Bivens from the

App.19a

“three narrow circumstances” previously recognized

by the Supreme Court, Elhady, 18 F.4th at 882, to the

farther-flung areas of targeted misconduct across the

criminal-justice system that Faller alleges.

In any event, even if these Eighth Amendment

allegations were plausible and gave rise to a Bivens

cause of action, the claim fails for another reason: the

statute of limitations expired long before he filed suit.

Although Faller does not provide an exact date of the

mistreatment he allegedly experienced while incarcerated, it clearly occurred “during [his] time in prison.”

Response to DOJ MTD at 5. That ended more than

five years ago. (He received a three-year sentence in

January 2016. See DN 357, United States v. Faller,

No. 1:13-cr-29.) Bivens claims in Kentucky are subject

to a one-year statute of limitations. Dudley v. Streeval,

No. 20-5291, 2021 WL 1054390, at *5 (6th Cir. Feb. 8,

2021) (citing Zundel v. Holder, 687 F.3d 271, 280-81

(6th Cir. 2012)). “The statute of limitations begins to

run when the plaintiff knows, or has reason to know,

that he or she has suffered an injury.” Jd. Faller alleges that the medical maltreatment occurred while

he was in prison and offers no reason why he was unaware of the alleged maltreatment at the time. So he

had until 2020 to file a complaint. Yet he waited until

2023 to do so. So his Eighth Amendment claim is timebarred.

Similarly, Faller’s claim under the Fourth Amendment—the provision at issue in Bivens itself—also fails

because the statute of limitations has run. This requires dismissal of the claim even assuming existing

Bivens doctrine extends to the alleged “fraudulently

obtained search warrant” and subsequent “raid” of his

business that Faller describes in his Fourth Amend-

App.20a

ment claim. Complaint at 18. Faller says the feds conducted multiple “raids on his homes and offices,” Complaint at 17, but provides only a single a date: April

18, 2016. Id. at 15.5 Again, he didn’t sue until 2023

given the one-year limitations period that applies in

Kentucky. Dudley, 2021 WL 1054890, at *5 (citing

Zundel, 687 F.3d at 280-81). Faller alleges that the

2016 raid violated his rights and offers no reason why

he was unaware of that raid at the time. So his Fourth

Amendment claim is also time-barred.®

5 Faller alleges that the Government “illegally raided” his property “three times and [has] taken evidence and actually abducted

a witness by using a fake subpoena.” Response to DOJ MTD at

13. No additional facts are offered to support these borderlinefantastical allegations—and they arguably fail under Rule 8's

normal pleading requirements—even for pro se plaintiffs—as set

out in Iqbal and Twombly. Even if they were sufficiently plausible, however, no facts would support the notion that any additional searches similar to the one that allegedly occurred in 2016

happened within a year of the complaint’s filing.

6 Faller also argues that the “continuing violation” doctrine applies to extend the limitations period. See Response to DOJ MTD

at 7, 13-14 (citing, e.g., United Air Lines v. Evans, 431 U.S. 553

(1977); Natl R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)).

But no authority supports the doctrine’s applicability here. The

continuing violation doctrine is “triggered by continuing unlawful

acts, rather than by a continued injury.” Kerr v. Pollex, No. 22-

3993, 2023 WL 8358798 at *3 (6th Cir. Aug. 11, 2023). And it

applies only in limited circumstances—mostly confined to the Title VII context. See Slorp v. Lerner, Sampson & Rothfuss, 587 F.

App’x 249, 257 (6th Cir. 2014) (citation omitted) (“Courts have

been ‘extremely reluctant’ to extend the continuing-violation doctrine beyond the context of Title VII.”). So the continuing-violation

doctrine cannot save his Fifth or Eighth Amendment constitutional-tort claims.

App.21la

B. The Commonwealth of Kentucky & Governor

Andy Beshear.

Faller’s Complaint listed as a Defendant the

Commonwealth of Kentucky “through” its Governor,

An[d]y Beshear. Complaint at 1, 8. The Governor, in

his official capacity, moved to dismiss the claims.

Commonwealth MTD (DN 11) at 1. Faller emphatically

insisted in response that the Governor is not a Defendant

but is only a vessel for service on the Commonwealth.

Response to Commonwealth MTD (DN 12) at 2. What

this means is unclear. Stranger still, Faller filed a motion to strike the Governor’s filings stating “[iJn

review of the Complaint, Faller never named the Governor in any capacity.” Motion to Strike (DN 15) at 3.

But the Complaint in fact names the Governor two

times—though it appears not to pin any supervisory

or vicarious or direct liability on him. See generally Iqbal, 556 U.S. at 677 (‘Absent vicarious liability, each

Government official, his or her title notwithstanding,

is only liable for his or her own misconduct.”).’ So the

Court denies the motion to strike (DN 15).

7 Although Faller does not allege any misconduct by Governor

Beshear, he does allege misconduct by other named and unnamed state officials. See Complaint at 8-13 (discussing a former

attorney general, law enforcement officers, and two judges); Response to Commonwealth MTD at 7 (accusing unnamed state

officials of participating in the alleged conspiracy against him).

But these allegations are insufficient to maintain a suit against

Governor Beshear (which Faller disclaims in any event) because

they do not allege facts that support wrongdoing by the Governor

himself. Faller has not named as defendants the various other

state officials who appear in the narrative found in his Complaint. See Complaint at 8-9, 11-13. Nor has he argued that

Beshear is somehow liable for causing any conslilulioual viola-

App.22a

Section 1983 claims.

To the extent Beshear is a Defendant at all, he’s

sued only in relation to the Commonwealth and therefore in his official capacity. See Will v. Michigan Dep't

of State Police, 491 U.S. 58, 71 (1989). And suits against

individuals in their official capacity are treated as

suits against the state (a point on which Faller and

the Commonwealth appear to agree). Id.; Motion to

Strike at 3. This means, however, that the Governor

and the Commonwealth are both entitled to Eleventh

Amendment “[s]overeign immunity [that] protects

states, as well as state officials sued in their official

capacity for money damages, from suit in federal

court.” Boler v. Earley, 865 F.3d 391, 409-10 (6th Cir.

2017).8

None of the “three exceptions to sovereign immunity” apply here: “(1) when the state has waived

immunity by consenting to the suit; (2) when Congress

has expressly abrogated the states’ sovereign immunity,

and (3) when the doctrine set forth in Ex Parte Young,

209 U.S. 123 (1908), applies.” Jd. at 410 (cleaned up).

Kentucky has not waived its sovereign immunity

for § 1983 suits. Grinter v. Knight, 532 F.8d 567, 572

(6th Cir. 2008). Congress did not abrogate the states’

sovereign immunity through § 1983. Boler, 865 F.3d

at 410 (citing Will, 491 U.S. at 66). And although “Ex

Parte Young allows plaintiffs to bring claims for

tions by other state actors. See generally Monell v. Department of

Social Services of City of New York, 436 U.S. 658 (1978).

8 Sovereign immunity is a jurisdictional issue. Boler, 865 F.3d at

409. So the Court considers it before (and ultimately in lieu of)

the flaws in the pleadings that the Commonwealth Defendants’

brief points out.

App.28a

prospective relief,” it “does not extend to retroactive

relief or claims for money damages.” Id. at 412 (citing

S&M Brands, Inc. v Cooper, 527 F.3d 500, 507-08 (6th

Cir. 2008)). So the Commonwealth and Governor

Beshear are immune from any liability or suit based

on these damages claims.?

FTCA claims.

As noted above, the FTCA is a grant of jurisdiction

to federal district courts and a limited waiver of federal sovereign immunity that allows some tort claims

to proceed against the federal government. If a claim

does not fall within the elements set out in the statute,

a court lacks jurisdiction and must dismiss the claim.

Meyer, 510 U.S. at 477 (“A claim comes within this jurisdictional grant—and thus is ‘cognizable’ under

§ 1346(b)—if it is actionable under § 1346(b). And a

9 Faller also requests “[a]n order of mandamus and injunction

ordering these defendants to remove and erase from all World

Wide Web any and all articles of or by the government or anyone

on their behalf that tends to place Faller in a bad light.” Complaint at 22. Faller cites no authority supporting the notion that

courts may grant such relief. Even assuming that authority exists,

and that Faller has alleged facts supporting (presumably) First

Amendment violations justifying relief, “[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.” Kerr v. U.S. Dist. Ct. for N. Dist. of California, 426 U.S.

394, 402 (1976) (citations omitted). Given the lack of any plausible allegations regarding the internet content that concerns him,

the Defendants’ roles in publishing or maintaining it, the reasons

why such speech by others violates his own First or Fifth or Fourteenth Amendment rights, the Court has no basis to treat this as

a cognizable claim that—even if proven—could warrant the extraordinary step of mandamus over government-inflected

speech. So the Court dismisses this request for nonmonetary relief as well.

App.24a

claim is actionable under § 1346(b) if it alleges the six

elements [of an FTCA claim].”). The first element of

an FTCA claim requires a claim “against the United

States.” Id. (quoting § 1346(b)). Faller’s FTCA claims

against the Commonwealth and various unnamed

state actors are plainly not claims against the United

States. And the FTCA does not otherwise authorize

suits against states or state officials. So the FTCA

claim against the Commonwealth and the Governor

fails.

Bivens claims.

The Bivens claims Faller asserts against state actors are similarly not cognizable. Bivens claims, by

definition, run against federal agents. Meyer, 510 U.S.

at 473. The Supreme Court has repeatedly warned

against suggestions that Bivens remedies be extended

into new contexts. Id. at 484 (quoting Schweiker v.

Chilicky, 487 U.S. 412, 421 (1988)). Faller makes no

argument that a Bivens cause of action could run

against state officials. So the Court dismisses these

remaining claims against the Commonwealth of

Kentucky and the Governor.

C. Darlene Price’s motion.

In a motion filed jointly in both of Faller’s cases

before this Court, a non-party named Darlene Price

moved to “intervene as amicus curiae.” DN 19. The

motion fails for the same reasons that the Court denied the identical motion filed in connection with

Faller’s petition for coram nobis. See DN 442, United

States v. Faller, No. 1:13-cr-29. Because the request

fails to identify any personal interest in Faller’s conviction, the Court construes this as a motion to file

App.25a

an amicus curiae brief, not a motion to intervene.

FED. R. CIV. P. 24(a)-(b) (intervention requires a

right or interest in the case).

“The Federal Rules of Civil Procedure do not address motions for leave to appear as amicus curiae in

a federal district court, and the decision to allow an

appearance as amicus curiae falls under the district

court’s inherent authority.” E.g., Kollaritsch v. Michigan State Univ. Bd. of Trustees, No. 1:15-ev-1191,

2017 WL 11454764, at *1 (W.D. Mich. Oct. 30, 2017)

(cleaned up). When deciding whether to allow such

participation in another’s case, district courts consider

the timeliness and usefulness of the brief. Id. Even assuming Price’s brief is timely, however, it is not

useful.

The bulk of the brief (and the accompanying motion, see DN 19-1) is another recitation of Faller’s allegations of a nefarious intergovernmental conspiracy to

destroy his life. Like numerous other filings by Faller,

Price’s brief points to no legal sources or factual support that would help the Court assess Faller’s claims.

See “Motion to Intervene” (DN 19-1) Ex. 1 at 8-11 (asserting concern for Faller’s Equal Protection and Due

Process rights). This duplication serves primarily to

clog the Court’s docket and slow the flow of judicial

decisions for other litigants. So the Court also denies

Price’s motion to participate—as amicus or otherwise—in this case (DN 19).

D. Motion to disqualify.

In line with the strident allegations of governmental corruption set forth in this case and the

parallel criminal coram nobis proceedings, Faller has

moved to disqualify the presiding district judge, the

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