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Chesser v. Federal Bureau of Investigation

United States District Court, E.D. Virginia, Alexandria Division

February 17, 2017

Zachary Chesser also known as Abu Talhah, Plaintiff,
v.
Federal Bureau of Investigation, et al, Defendants. Appeal No. 13-7239

          MEMORANDUM OPINION

          Liam O'Grady United Slates District Judge

         Zachary Chesser, also known as Abu Talhah, a federal inmate proceeding pro se, filed a civil rights action pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Foreign Intelligence Surveillance Act, and the Privacy Act. Dkt. No. 1. Plaintiff alleged that various federal officials conspired with his mother regarding the custody proceedings for his son. Id. By Order dated February 14, 2013, plaintiffs complaint was dismissed as frivolous, pursuant to 28 U.S.C. § 1915A(b)(1). Dkt. No. 6.

         Plaintiff appealed and on May 1, 2015, the United States Court of Appeals for the Fourth Circuit affirmed in part and remanded in part. Appeal No. 13-7239. The Fourth Circuit remanded the matter to allow plaintiff to submit "an amended complaint raising only a Privacy Act claim against the FBI and Secret Service." Id.

         On July 23, 2015, the court received plaintiffs second amended complaint in which he asserted Privacy Act claims against the United States Secret Service ("USSS") and the Federal Bureau of Investigation ("FBI").[1] Dkt. No. 52. Defendants have filed a Motion to Dismiss and Motion for Summary Judgment, as well as memoranda of law with supporting exhibits. Dkt. Nos. 78-80. Plaintiff was given the Notice required by Local Rule 7(K) and the opportunity to file responsive materials pursuant to Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975). After having been granted an extension of time to respond, plaintiff filed a Response to Defendants' Motion to Dismiss. Dkt. No. 95. After receiving an extension of time to file, defendants filed a Reply Memorandum in Support of Defendants' Motion to Dismiss and Motion for Summary Judgment. Dkt. Nos. 100-101. This matter is now ripe for adjudication.

         I. Background

         A. Motion to Dismiss

         Plaintiffs allegations, which will be taken as true for purposes of the Motion to Dismiss, are as follow. [2]Plaintiff is currently an incarcerated federal inmate. SAC at ¶ 6. He is married to Proscovia Nzabanita ("Proscovia") and together they have a child, T.C. Id. at ¶ 9. Plaintiffs mother is Barbara Chesser ("Barbara") and Proscovia's mother is Cecilia Nzabanita ("Cecilia"). Id.

         Plaintiff was arrested in July 2010, and charged with providing material support to terrorists. Id. at ¶ 15. Both before and after his arrest, the FBI monitored plaintiffs and Proscovia's communications. Id. at ¶¶ 40-46. On October 20, 2010, plaintiff pled guilty because he was afraid that his son would not be raised as a Muslim if his wife were imprisoned. Id. at ¶¶ 17-18. Plaintiff was sentenced to 300 months in prison on February 24, 2011. Id. at ¶ 21.

         Proscovia pled guilty to making false statements to federal officials on November 8, 2010, and as part of her plea deal she agreed to relinquish her legal status in the United States and to leave the country by March 8, 2011. Id. at ¶¶ 23-24.

         _____

         Plaintiff asserts six counts of violations of the Privacy Act.

         i. Count One - January 19, 2011 Email from Agent Menges to Barbara's Attorney

         Prior to ___, plaintiff and Proscovia planned to send T.C. to Jordan on January 19, 2011, with a friend, to demonstrate that T.C. would be safe, regardless of what happened to Proscovia, and "to ensure that he would be with Muslims in a worst case scenario." SAC at ¶¶ 47-50. On January 18, 2011, FBI Agents Hersem and Piro wrote a memorandum to an assistant United States Attorney regarding plaintiffs and Proscovia's plan. PI. Opp. to MTD/MSJ at Ex. A. The agents wrote that the FBI believed neither plaintiff nor Proscovia had violated any laws, but that, because of ____both plaintiff and Proscovia could be in danger of being charged with violating a court order or state law in the future, which would be a violation of their plea deals. Id. The next day, FBI Agent Menges emailed a copy of this memorandum to Barbara's attorney. Id. at Ex. B. The email also stated that a copy of the memorandum was sent to plaintiff and Proscovia "by way of their known attorneys." Id. This disclosure of a record stored in an FBI system of records was willful and intentional, and caused plaintiff to spend money fighting evidence from the disclosure in child custody proceedings and in mitigating its harm to him in the public. SAC at ¶¶ 56-64.

         ii. Count Two - January 19, 2011 Phone Call from Agent Kirgan to Barbara

         On January 19, 2011, FBI Agents Kirgan and Menges, as well as unknown U.S. Marshals and New York City Police Department officers, intercepted T.C. and plaintiffs friend at JFK Airport, refusing to allow them to leave for Jordan. Id. at ¶ 65-66. During this time, Agent Kirgan and another unknown FBI agent called Barbara to inform her of plaintiff s and Proscovia's plan to send T.C. to Jordan. Id. at ¶ 67-68. The events that took place at the airport were documented in records after the incident. Id. at ¶ 71. The disclosure of this information was willful and intentional, and caused plaintiff to spend money fighting the use of information from the disclosure in child custody proceedings and in mitigating its harm to him in the public. Id. at ¶¶ 74-75. Barbara and her attorney have also used this information to try to have Proscovia and T.C.'s Jordanian visas revoked, which would have forced them to go to Uganda where Proscovia's life is in danger. Id. at ¶¶ 76-77. The Jordanian government interrogated Proscovia, kicked her out of the university she was attending, and ordered her to leave the country while attempting to arrest her. Id. at ¶¶ 78-80. Proscovia was a fugitive for a month until she was declared a refugee by the United Nations; however, she is unable to work in Jordan and lives off assistance from the United Nations and others. Id. at ¶¶ 81-82. Because of Proscovia's limited ability to work, she is no longer able to send money to support plaintiff. Id. at ¶¶ 83-84.

         iii. Count Three - July 12, 2011 Phone Call Between Agent Kinder and Barbara

         On July 12, 2011, FBI Agent Kinder allegedly called Barbara to inform her that (1) plaintiff and Proscovia planned to send T.C. to Jordan with Cecilia so that T.C. could be with Proscovia, and (2) T.C. had been attending a mosque and wearing Islamic clothing while in Cecilia's care. Id. at ¶ 87-90. This disclosure of information contained in FBI records was based on plaintiffs communications and the surveillance of Proscovia. Id. at ¶¶ 95-96, 98-99. Plaintiff learned of this disclosure based on testimony from the custody proceedings. Id. at ¶ 97. Plaintiff claims the disclosure of this information was willful and intentional, and caused plaintiff to spend money fighting the use of this information in child custody proceedings and in mitigating its harm to him in the public. Id. at ¶¶ 100-102.

         iv. Count Four - December 2011 Phone Call Between Agent Kinder ...


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