Aboussa v. Keystone Management Co

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Ekoue Dodji Aboussa
v. Civil No. 23-cv-11-LM
Keystone Management Co. and
United States Federal Bureau
of Investigation
REPORT AND RECOMMENDATION
Pro se plaintiff Ekoue Dodji Aboussa has sued his landlord
and the Federal Bureau of Investigation (“FBI”), claiming that
the landlord, Keystone Management Co. (“Keystone”) allowed the
FBI to move into a nearby apartment and harass Mr. Aboussa and
his family. The defendants have moved to dismiss the complaint.
Pursuant to LR 72.1, the motions have been referred to the
undersigned Magistrate Judge for a report and recommendation.
For the reasons that follow, the district judge should grant the
defendants’’ motions.
Standard of Review
When evaluating a motion to dismiss for failure to state a
claim under Rule 12(b)(6), the court asks whether the plaintiff
has made allegations in her complaint that are sufficient to
render her entitlement to relief plausible. See Manning v.
Boston Med. Ctr. Corp., 725 F.3d 34, 43 (1st Cir. 2013). The
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court accepts all well-pleaded facts as true and draws all
reasonable inferences in the non-moving party's favor. Hamann v.
Carpenter, 937 F.3d 86, 88 (1st Cir. 2019). The court, however,
disregards conclusory allegations that simply parrot the
applicable legal standard. Manning, 725 F.3d at 43. Because Mr.
Aboussa is proceeding pro se, the court construes his amended
complaint liberally. See Erikson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (internal citations omitted) (“a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers”).
“Pro se status, however, does not insulate a party from
complying with procedural and substantive law. Even under a
liberal construction, the complaint must adequately allege the
elements of a claim with the requisite supporting facts.” Wood
v. U.S. Bank, No. 22-cv-235-JL, 2023 WL 3867254, at *2 (D.N.H.
June 7, 2023) (cleaned up).
Factual Allegations
Mr. Aboussa’s amended complaint (Doc. No. 13) is
disorganized and difficult to follow. He and his family have
been tenants in an apartment complex in Concord, New Hampshire,
for the past ten years. Keystone manages the complex. Mr.
Aboussa alleges that Keystone personnel “moved” FBI personnel
into the complex “to perform programming with psychotronic use
of electronic tracking communication system.” Am. Compl. (Doc.
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No. 13) at 1. The court turns next to the defendants’
respective motions to dismiss.
A. Keystone’s Motion to Dismiss (Doc. No. 15)
Mr. Aboussa alleges that Keystone violated several
provisions of the Fair Housing Act, 42 U.S.C. § 3601, et seq.
(“FHA”), along with certain other statutory and criminal laws.
1. Fair Housing Act
As relevant here, the FHA provides that “it shall be
unlawful . . . (b) To discriminate against any person in the
terms, conditions, or privileges of sale or rental of a dwelling
. . . because of race, color, religion, sex, familial status, or
national origin.” 42 U.S.C. § 3604. To prove a violation of
the FHA, the plaintiff must, at a minimum, show either that the
defendants acted with discriminatory intent, or that their
actions have a disparate impact based on race. Macone v. Town
of Wakefield, 277 F.3d 1, 5 (1st Cir. 2002). The complaint here
fails to allege sufficient facts to meet either of those
requirements.
First, the complaint does not allege facts sufficient to
demonstrate that any of the defendants acted with a
discriminatory intent. “A plaintiff can show discriminatory
intent by either direct or indirect evidence.” Pina v. Town of
Plympton, 529 F. Supp. 2d 151, 155 (D. Mass. 2007) (internal
quotation marks omitted). Here, the complaint does not allege
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either. To be sure, the complaint contains a litany of
grievances aimed at Keystone, include renting an apartment to
FBI personnel, enabling the FBI to conduct surveillance, and
trying to collect rent allegedly not due. But even accepting
these allegations are true, the complaint does not allege facts
suggesting that Keystone acted because of Mr. Aboussa’s race or
national origin. He does not allege, for example, any
statements suggesting racial animus or any instances in which
Keystone treated individuals of other races differently. Nor
does the complaint contain any factual allegations suggestive of
Keystone policies that have a disparate impact on racial or
ethnic minorities. Accordingly, Mr. Aboussa’s FHA claim against
Keystone should be dismissed.
2. Constitutional Violations
Seeking relief under 42 U.S.C. § 1983, Mr. Aboussa claims
that, by renting an apartment to FBI personnel, Keystone
violated his Fourth Amendment right to be free from unreasonable
searches and seizures. A plaintiff claiming an infringement of
his civil rights under § 1983 must establish that the defendant
acted under “color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory of the District of
Columbia,” in depriving plaintiff of a right secured by the
Constitution or laws of the United States. See 42 U.S.C. § 1983.
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A private actor, such as Keystone, can be considered a
state actor for purposes of § 1983 only under limited
circumstances, none of which are present here. See Georgia v.
McCollum, 505 U.S. 42, 54 (1992) (describing circumstances under
which public defender could be deemed to be a state actor for
purposes of § 1983); see also, Watchtower Bible & Tract Soc'y of
N.Y., Inc. v. Sagardía De Jesús, 634 F.3d 3, 10 (1st Cir.)
(same), cert. denied, 132 S. Ct. 549 (2011). The constitutional
claims asserted against Keystone should, therefore, be
dismissed.
3. Criminal Laws
Mr. Aboussa also alleges that Keystone violated several
criminal statutes, including 18 U.S.C. § 2261A (stalking), 18
U.S.C. § 1091 (genocide), and 18 U.S.C. § 351(a) (assault of
certain federal officials). But, in general, “a private citizen
lacks a judicially cognizable interest in the prosecution or
nonprosecution of another”)). Linda R. S. v. Richard D., 410
U.S. 614, 619 (1973). Mr. Aboussa also alleges that Keystone
violated the Electronic Communications Privacy Act, 18 U.S.C.
2510, et. seq. (“ECPA”). While there exists a private right of
action under the ECPA, see 18 U.S.C. § 2520, Mr. Aboussa’s
complaint is devoid of any allegations regarding Keystone other
than allegedly renting space to the FBI to conduct “programming
with psychotronic use of electronic tracking communication
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system.” This allegation, standing alone, does not give rise to
any nonfrivolous claim upon which relief can be granted.
Therefore Mr. Aboussa’s claims that are based on criminal
violations should be dismissed.
B. FBI’s Motion to Dismiss (Doc. No. 18)
Mr. Aboussa claims that the FBI conducted “illegal
surveillance programming with electronic tracking communications
systems.” Am. Compl. (Doc. No. 13) at 9. He also alleges that
he and his family are victims of “human remote mind control” and
murder. Id. at 9-10. Finally, he asserts that the FBI spoke to
him from a distance with psychotronic controller 24/7 telling
him when and which part of his body they are going to hurt and
torture . . . .” Id. Although the FBI asserts several bases for
dismissal, the court grants its motion to dismiss because it
lacks subject matter jurisdiction over Mr. Aboussa’s claims. See
Efreom v. McKee, 46 F.4th 9, 16 (1st Cir. 2022) (describing
determination of subject matter jurisdiction as “threshold
matter”) (citing Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 94-95 (1998)).
“It is a bedrock rule that a party seeking to invoke the
jurisdiction of a federal court must bear the burden of
demonstrating the existence of such jurisdiction.” Gordo-
Gonzalez v. United States, 873 F.3d 32, 35 (1st Cir. 2017)
(citing Murphy v. United States, 45 F.3d 520, 522 (1st Cir.
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1995). “A patently insubstantial” complaint may be dismissed
for want of subject-matter jurisdiction under Fed. R. Civ. P.
12(b)(1). Neitzke v. Williams, 490 U.S. 319, 327 n.6 (1989)
(citing Hagans v. Lavine, 415 U.S. 528, 536–537 (1974) (federal
courts lack power to entertain claims that are “so attenuated
and unsubstantial as to be absolutely devoid of merit”)
(citation omitted); Bell v. Hood, 327 U.S. 678, 682–683 (1946)).
The assertions in the complaint in this case fall squarely
within the standard set forth in Neitzke. While this court has
no reason to question the intensity and sincerity of Mr.
Aboussa’s concern for his and his family’s safety and security,
his allegations against the FBI do not give rise to any
nonfrivolous claim sufficient to invoke this court’s subject
matter jurisdiction. His allegations of harassment stemming from
“remote mind control,” are precisely the sort of allegations
that courts, including this one, have dismissed as factually
frivolous. See, e.g., Fisherman v. Doe, No. 22-cv-246-SE, 2023
U.S. Dist. LEXIS 23614 (D.N.H. Jan. 9, 2023) (recommending
dismissal of complaint alleging “satellite based neural
monitoring” to suppress evidence of his innocence of criminal
charges), adopted, 2023 U.S. Dist. LEXIS 22715 (D.N.H. Feb. 10,
2023); Nduka v. Williams, 410 F. Supp 3d 719, 721-22 (E.D. Pa.
2019) (collecting cases and noting that “[f]ederal courts
routinely dismiss allegations regarding broad-based conspiracies
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of computer hacking, surveillance, tracking, and the like, as
factually frivolous . . . where these allegations are fanciful,
fantastic, delusional, irrational, or wholly incredible.”);
Barnes-Velez v. FCC, No. 6:18-cv-634-Orl-18GJK, 2018 WL 4178196,
at *3 (M.D. Fla. May 8, 2018) (rec. dec.) (dismissing as
frivolous a plaintiff's complaint alleging that various
government agencies installed cameras and listening devices in
her cable box), aff'd, 2018 WL 4153937 (M.D. Fla. Aug. 30,
2018); see also Denton v. Hernandez, 504 U.S. 25, 33, (1992)
(recognizing that a court at the motion to dismiss stage need
not accept as true a plaintiff's factual allegations that
describe “fantastic or delusional scenarios”).
To allow this case to proceed any further would be a waste
of limited judicial resources. See Fitzgerald v. First E.
Seventh St. Tenants Corp., 221 F.3d 362, 364 (2nd Cir. 2000)
(noting that the early dismissal of a frivolous action is
necessary “to preserve scarce judicial resources,” including
cases where the plaintiff has paid the filing fee).
Accordingly, the FBI’s motion to dismiss should be granted.
Conclusion
For the foregoing reasons, the district judge should grant
the motions to dismiss filed by Keystone (Doc. No. 15) and the
FBI (Doc. No. 18). If the district judge adopts this
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recommendation, the undersigned recommends that the clerk’s
office be directed to close this case.
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. Only those issues raised in the objection(s) to
this Report and Recommendation are subject to review in the
district court. See Sch. Union No. 37 v. United Nat'l Ins. Co.,
617 F.3d 554, 564 (1st Cir. 2010). Any issues not preserved by
such objection(s) are precluded on appeal. See id. Failure to
file any 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
June 27, 2023
cc: Ekoue Dodji Aboussa, pro se
counsel of record
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