United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendants Federal Bureau of
Investigation ("FBI") and Drug Enforcement
Agency's ("DEA")(collectively, "Federal
Defendants") Motion to Dismiss (Dkt. 39) Plaintiff's
Complaint pursuant to Federal Rules of Civil Procedure
12(b)(1), 12(b)(3), and 12(b)(6).
alleges a host of wrongful conduct on behalf of Federal
Defendants that includes various instances of food poisoning
or tampering, entrapment by federal law enforcement officers
posing as city police officers and store employees,
unauthorized disclosure of medical records, injection of an
unknown substance while asleep, sexual assault while asleep,
and general harassment.
Court construes Plaintiff's Complaint to allege six
violations against Federal Defendants: Violations under the
Federal Tort Claims Act ("FTCA"), 28 U.S.C. §
1346(b) (Count I);Violations of the Privacy Act, 5 U.S.C.
§ 552a (Count II); Deprivation of Rights under Color of
Law and Conspiracy to do the same in violation of 18 U.S.C.
§§ 241, 242 (Count III); Retaliation Against a
Witness, Victim or Informant, 18 U.S.C. § 1513 (Count
IV); Violations of the Health Insurance Portability and
Accountability Act of 1996 (HIPAA) (Count V}; and Conspiracy
to Interfere with Civil Rights, 42 U.S.C. §§ 1985,
1986 (Count VI) .
filed this lawsuit on February 25, 2019. The Federal
Defendants move to dismiss for lack of subject-matter
jurisdiction, improper venue, and failure to state a claim
upon which relief can be granted, pursuant to Federal Rules
of Civil Procedure 12(b)(1), 12(b)(3), and 12(b)(6),
motion to dismiss tests the sufficiency of the complaint.
See Republican Party of N.C. v. Martin, 980 F.2d
943, 952 (4th Cir. 1992). In a Rule 12(b)(1) motion to
dismiss for lack of subject-matter jurisdiction, a court may
look beyond the four corners of the complaint in order to
satisfy itself of jurisdiction. Mims v. Kemp, 516
F.2d 21, 23 (4th Cir. 1975). The plaintiff has the burden of
proving that jurisdiction exists. Evans v. B.F. Perkins
Co., 166 F.3d 642, 647 (4th Cir. 1999). Once it is
established that there is no subject-matter jurisdiction,
"the only function remaining to the court is that of
announcing the fact and dismissing the cause." Steel
Co. v. Citizens for a Better Env't, 523 U.S. 83, 94
(1998) (internal quotations omitted).
motion to dismiss based on improper venue is appropriately
brought under Rule 12(b)(3). See Sucampo Pharms., Inc. v.
Astellas Pharma, Inc., 471 F.3d 544, 550 (4th Cir.
2006). The plaintiff's allegations are not taken as
admitted and the Court may "freely consider evidence
outside the pleadings." Id. 471 F.3d at 550.
Considering extrinsic evidence does not convert the motion to
dismiss into one for summary judgment. See Williams v.
United States, 50 F.3d 299, 304 (4th Cir. 1995). Once
venue is challenged, the burden of establishing the propriety
of venue falls on the plaintiff. See Bartholomew v. Va.
Chiropractors Ass'n, Inc., 612 F.2d 812, 816 (4th
Cir. 1979) (overruled on other grounds by Ratino v. Med.
Serv. of D.C., 718 F.2d 1260 (4th Cir. 1983)).
the Court looks at Count I, the FTCA claims. Sovereign
immunity protects the United States from suit and deprives
the courts of jurisdiction over claims against the United
States absent an explicit waiver from Congress. FDIC v.
Meyer, 510 U.S. 471, 475 (1994}. The FTCA functions as a
waiver of sovereign immunity of the United States for civil
claims. Medina v. United States, 259 F.3d 220, 223
(4th Cir. 2001).
FTCA does not waive sovereign immunity for tort claims
brought against federal agencies. Holmes v, Eddy,
341 F.2d 477, 480 (4th Cir. 1965); 28 U.S.C. §§
2679, 2680(a)(h). Thus, the only proper defendant in an FTCA
claim is the United States. 2 8 U.S.C. §§ 1346(b),
2674. Here, Plaintiff names the DEA and the FBI as defendants
in an FTCA action, rather than the United States. Therefore,
the Court finds that Plaintiff's FTCA claims fail because
the Court lacks subject-matter jurisdiction due to the
sovereign immunity of Federal Defendants in such an action.
a plaintiff must present his claim to the appropriate federal
agency before filing an FTCA claim against the United States
within two years of the alleged incident. 28 U.S.C.
§§ 2401(b), 2675(a). Failure to do so bars a
plaintiff from filing an FTCA action. See Henderson v.
United States 785 F.2d 121, 123 (4th Cir. 1986}. If a
claim is denied, a plaintiff then has six months to file an
action in federal district court after the denial. 28 U.S.C.
submitted an administrative claim to the DEA in August 2 014,
which contained similar allegations to those of this present
action. The DEA denied Plaintiff's administrative claim
on October 17, 2014, and informed Plaintiff of his option to
file suit in the appropriate United States district court
within six months of its denial of the claim. Plaintiff filed
suit here on February 25, 2019, almost four years after the
expiration of his six-month deadline. The FBI reports no
administrative tort claim made by Plaintiff. The Court finds
no subject-matter jurisdiction over any FTCA claim against
the FBI due to a failure to exhaust administrative remedies,
and any claim previously raised before the DEA is
Court next turns its attention to Count II, in which
Plaintiff alleges a violation of his rights under the Privacy
Act, 5 U.S.C. § 552a. The Privacy Act states that an
agency shall not disclose any record of a citizen or
permanent resident without the written consent of the
individual which the record concerns. 5 U.S.C. §
552a(b). The appropriate venue for bringing a Privacy Act
claim is a "district court of the United States in the
district in which the complainant resides, or has his
principal place of business, or in which the agency records
are situated, or in the District of Columbia." 5 U.S.C.
§ 552a(g)(5). Plaintiff's filing indicates his
mailing address is in the District of Columbia. The Complaint
makes no mention of Plaintiff having another residential
address, a principal place of business, nor where the alleged
agency records may be located. The Complaint fails to show
this is the proper venue in which to bring Count II and for
this reason it will be dismissed without prejudice pursuant
to Rule 12(b)(3).
Court next examines Counts III-V, concerning the alleged
violations of 18 U.S.C. §§ 241, 242, 18 U.S.C.
§ 1513, and HIPAA, respectively. Courts have
consistently held that 18 U.S.C. §§ 241, 242 and 18
U.S.C. § 1513 are criminal statutes that do not create a
private right of action. See, e.g., Graves v.
Richmond Redevelopment & Housing Auth., No.
3:13-cv-464, 2013 U.S. Dist. LEXIS 112835 at *13 (E.D. Va.
Aug. 8, 2013) (addressing the lack of a private right of
action for 18 U.S.C. § 1513); Jones v. Jones,
No. 2:03-cv-417, 2004 U.S. Dist. LEXIS 30067 at *10 (E.D. Va.
June 15, 2004) (same for 18 U.S.C. §§ 241 and 242).
Similarly, a violation of HIPAA does not create a private
right of action either. See, e.g., Segen v.
Buchanan General Hosp., Inc., 552 F.Supp.2d 579, 584
(W.D. Va. 2007) ("[I]t is clear that a private right of
action does not exist based upon HIPAA violations.").
The lack of a private right of action in Counts III, IV, and
V results in a finding that the Court does not have
subject-matter jurisdiction over these claims, and they will
the Court looks at Count VI of the Complaint, Conspiracy to
Interfere with Civil Rights, 42 U.S.C. §§ 1985,
1986. Sovereign immunity is jurisdictional in nature and
absent an explicit waiver from Congress, parties may not sue
the United States. Meyer, 510 U.S. at 475. A waiver
of sovereign immunity must be "unequivocally"
expressed in the statutory text. Lane v. Pena, 518
U.S. 187, 192 (1996); see also Meyer, 510 U.S. at
475. The language in 42 U.S.C. §§ 1985, 1986
contains no explicit statutory waiver of sovereign immunity.
See, e.g., Proffit v. United States, 758
F.Supp. 342, 345 (E.D. Va. 1990}. Therefore, due ...