Berry v. Federal Bureau of Investigation et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jason T. Berry
v. Civil No. 17-cv-143-LM
Federal Bureau of Investigations and
Mark Hastbacka, FBI Special Agent
REPORT AND RECOMMENDATION
Before the court is the motion for a preliminary injunction
(Doc. No. 8) filed by plaintiff, Jason T. Berry. That motion
has been referred to the undersigned magistrate judge for a
report and recommendation. See July 5, 2017 Order.
Background
Plaintiff, who does not live with his parents, asserts he
submitted a request for information under the Freedom of
Information Act (“FOIA”), addressed to the Bedford, New
Hampshire FBI office on February 23, 2017. See Compl. ¶¶ 8, 16,
20 (Doc. No. 1). Plaintiff did not mention his parents or
provide their contact information in that FOIA request. See
Compl. ¶ 26.
Plaintiff asserts that the following day, defendant FBI
Special Agent Mark Hastbacka left a voicemail on plaintiff’s
parents’ home phone, relating to plaintiff, asking them to
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return Hastbacka’s call. See Compl. ¶ 19 (Doc. No. 1).
Plaintiff asserts that after his parents told him about that
voicemail, plaintiff wrote letters to Hastbacka several times in
February and March 2017, asking Hastbacka to reply to plaintiff
in writing. See Compl. ¶ 24 (Doc. No. 1). Hastbacka responded
to some of that correspondence by providing his business card
and a printout of directions for contacting the FBI Records
Division. See Compl. ¶ 24 (Doc. No. 1). Additionally,
plaintiff asserts that he sent Hastbacka a “memo” on March 9,
2017 inquiring how and why Hastbacka had left a voicemail with
his parents, in regards to plaintiff. Compl. ¶ 26 (Doc. No. 1);
Mar. 9, 2017 Ltr. (Doc. No. 8-2). Hastbacka did not respond to
the March 9 correspondence and has had no further contact with
plaintiff. Compl. ¶ 27 (Doc. No. 1).
Plaintiff filed this action on April 18, 2017, seeking
damages and injunctive relief for defendants’ alleged violations
of the Privacy Act and for Hastbacka’s alleged invasion of
plaintiff’s private affairs. Plaintiff asserts that Hastbacka’s
conduct, including leaving a voicemail message on plaintiff’s
parents’ phone, has caused him emotional distress.
Plaintiff filed the instant motion for a preliminary
injunction (Doc. No. 8) after defendants moved to dismiss the
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complaint for failure to state a claim.1 Plaintiff has requested
a preliminary injunction enjoining the FBI and Hastbacka,
defendants in this action, from having any further contact with
plaintiff’s family while this action is pending. Defendants
have objected (Doc. No. 10) to the motion for a preliminary
injunction.
Discussion
I. Preliminary Injunction Standard
“‘A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.’” Glossip v. Gross,
135 S. Ct. 2726, 2736 (2015) (citation omitted). The likelihood
of success and irreparable harm are the factors that weigh most
heavily in the analysis. See Esso Std. Oil Co. v. Monroig–
Zayas, 445 F.3d 13, 18 (1st Cir. 2006); see also Voice of the
Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32
1Defendants’ motion to dismiss (Doc. No. 7) remains pending.
Plaintiff has objected to that motion (Doc. No. 11). The
deadline for defendants to file a reply to that objection is
July 28, 2017, and a surreply may be filed by August 4, 2017.
See July 20, 2017 Order.
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(1st Cir. 2011) (“‘[p]erhaps the single most important
prerequisite for the issuance of a preliminary injunction is a
demonstration that if it is not granted the applicant is likely
to suffer irreparable harm before a decision on the merits can
be rendered’” (citation omitted)). The burden of proof is on
the movant. See Esso Std. Oil Co., 445 F.3d at 18.
The court may rule on a motion for a preliminary injunction
on the papers if it has before it “‘adequate documentary
evidence upon which to base an informed, albeit preliminary
conclusion,’” and the parties have been afforded “‘a fair
opportunity to present relevant facts and arguments to the
court, and to counter the opponent’s submissions.’” Campbell
Soup Co. v. Giles, 47 F.3d 467, 470-71 (1st Cir. 1995)
(citations omitted). The parties have had such an opportunity
to date, and an additional opportunity is provided by the
objection period that follows the issuance of this Report and
Recommendation.
II. Irreparable Harm
“A finding of irreparable harm must be grounded on
something more than conjecture, surmise, or a party’s
unsubstantiated fears of what the future may have in store.”
Charlesbank Equity Fund II, Ltd. P’ship v. Blinds To Go, Inc.,
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370 F.3d 151, 162 (1st Cir. 2004). Plaintiff seeks to enjoin
the FBI and Hastbacka from contacting his parents during this
lawsuit. Plaintiff bases that request on allegations that
Hastbacka left a voicemail on plaintiff’s parents’ phone once,
prior to the date when this lawsuit was filed, without plaintiff
providing Hastbacka with his parents’ contact information. “The
equitable remedy is unavailable absent a showing of irreparable
injury, a requirement that cannot be met where there is no
showing of any real or immediate threat that the plaintiff will
be wronged again -- a ‘likelihood of substantial and immediate
irreparable injury.’” City of Los Angeles v. Lyons, 461 U.S.
95, 111 (1983); see also Asociasion De Periodistas De P.R. v.
Mueller, 680 F.3d 70, 84-85 (1st Cir. 2012).
Assuming, without deciding, that Hastbacka’s conduct could
give rise to liability under any federal law, plaintiff’s
allegations do not suggest that there is any likelihood of such
conduct recurring while this lawsuit is pending. Plaintiff’s
fears about further contacts between defendants and plaintiff’s
parents are entirely speculative. Plaintiff has not grounded
his request for relief in any evidence showing a likelihood that
such contacts will happen again unless this court issues the
requested injunction. Accordingly, plaintiff has not carried
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his burden of establishing irreparable harm, and for that
reason, the district judge should deny the motion for a
preliminary injunction (Doc. No. 8).
Conclusion
For the foregoing reasons, the district judge should deny
the motion for a preliminary injunction (Doc. No. 8). 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
motion. Failure to file 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
July 24, 2017
cc: Jason T. Berry, pro se
Robert J. Rabuck, Esq.
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