Maxwell v. Federal Bureau of Investigation et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Mary Maxwell
v. 	Case No. 19-cv-1208-JD
Federal Bureau of Investigation et al.1
REPORT AND RECOMMENDATION
Before the court is plaintiff Mary Maxwell’s complaint
(Doc. No. 1). 	Because Maxwell is proceeding pro se and has paid
the filing fee, the matter is before the court to determine if
the court has subject matter jurisdiction over the case. 	See
Fed. R. Civ. P. 12(h)(3); LR 4.3(d)(3). 	The court construes the
complaint liberally in light of Maxwell’s pro se status. 	See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
Article III Standing and Jurisdiction
“Under Article III of the Constitution, standing is a
prerequisite to subject matter jurisdiction that [courts] must
address, sua sponte if necessary, when the record reveals a
1Defendants listed in the case caption are the FBI; (former)
United States Attorney for the District of Massachusetts Carmen
Ortiz; William Frick; federal public defender Miriam Conrad;
Watertown, Massachusetts Chief of Police Edward Deveau; Dr.
Richard Wolfe, Department of Emergency Medicine, Beth Israel
Deaconess Medical Center; the Director of the Federal Bureau of
Prisons; the Boston Globe, Inc.; the National Geographic
Society; MIT; and an unnamed defendant “John Doe.”
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colorable standing issue.” 	Rivera v. IRS, 708 F. App’x 508, 513
(10th Cir. 2017). 	“In essence the question of standing is
whether the litigant is entitled to have the court decide the
merits of the dispute or of particular issues.” 	Warth v.
Seldin, 422 U.S. 490, 498 (1975). 	“Standing under Article III
. . . requires that an injury be concrete, particularized, and
actual or imminent; fairly traceable to the challenged action;
and redressable by a favorable ruling.” 	Monsanto Co. v.
Geertson Seed Farms, 561 U.S. 139, 149 (2010). 	The requirement
that the complaint allege facts showing an injury that is fairly
traceable to the alleged wrongful conduct requires that there
“‘be a causal connection between the injury and the conduct
complained of,’” rather than “‘to some third party’s independent
action,’” Council of Ins. Agents & Brokers v. Juarbe-Jiménez,
443 F.3d 103, 108 (1st Cir. 2006) (citation omitted).
The [plaintiff] bears the burden of establishing these
elements. 	Since they are not mere pleading requirements
but rather an indispensable part of the plaintiff’s case,
each element must be supported in the same way as any other
matter on which the plaintiff bears the burden of proof,
i.e., with the manner and degree of evidence required at
the successive stages of the litigation. 	At the pleading
stage, general factual allegations of injury resulting from
the defendant’s conduct may suffice . . . .
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (citations
omitted).
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Discussion
Maxwell claims that defendants including the FBI;
prosecutors and public defenders; the Watertown, Massachusetts,
Chief of Police; the Chief of Emergency Medicine at the Beth
Israel Deaconess Hospital; the Boston Globe; MIT; the Director
of the Federal Bureau of Prisons; and the National Geographic
Society, have engaged in conduct in connection with the Boston
Marathon bombing prosecution of Dzhokhar Tsarnaev which violates
the Racketeer Influenced and Corrupt Organizations Act (“RICO”),
18 U.S.C. § 1962. 	Maxwell, who does not allege that she was a
direct participant in the investigation, prosecution, defense,
or detention of Tsarnaev,2 asserts here that she suffered stress
and financial loss as a result of the alleged RICO violations,
consisting of the cost of filing a petition for a writ of error
coram nobis in federal court in Massachusetts; the cost of
mailing a petition to the Massachusetts General Court regarding
her concerns; the cost of producing her own book on the case;
travel costs to produce a video in Sydney, Australia; and
opportunity costs for the time she could have spent marketing
her other books and plays.
None of the costs alleged in the Complaint are pleaded in a
2Maxwell has filed a friend-of-the-court brief in Tsarnaev’s
case in the First Circuit, see United States v. Tsarnaev, No.
16-6001 (1st Cir. Nov. 7, 2018).
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manner that could make them fairly traceable to the named
defendants’ alleged wrongful conduct. 	“A mere sense of
grievance does not establish standing, not even when coupled
with the self-inflicted injury of litigation burdens and
expenses.” 	13A Charles Wright, Arthur Miller, and Edward
Cooper, Federal Practice and Procedure, Jurisdiction and Related
Matters § 3531.4 (3d ed. 2008). 	The costs plaintiff has alleged
are voluntarily incurred and so completely due to her own
actions as to “‘break the causal chain’” required to establish
standing. 	Petro-Chem Processing, Inc. v. EPA, 866 F.2d 433, 438
(D.C. Cir. 1989) (citation and footnote omitted); see also
Diamond v. Charles, 476 U.S. 54, 70 (1986) (intervenor’s
liability for attorney fee award is consequence of decision to
intervene which is not fairly traceable to subject matter of
litigation). 	Accordingly, the complaint lacks the allegations
necessary to invoke Article III standing, and the district judge
should dismiss this action for lack of jurisdiction.
Conclusion
For the foregoing reasons, the court should dismiss the
complaint for lack of subject matter jurisdiction. 	Any
objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The fourteen-day period may be extended upon
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motion. 	Failure to file specific written objections within the
specified time waives the right to appeal the district court’s
order. 	See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168
(1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
December 10, 2019
cc: 	Mary Maxwell, pro se
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