Aboussa v. US Postal Service et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Ekoue Dodji Aboussa
Images Des Reves Photography
v. Civil No. 23-cv-393-LM
U.S. Postal Serv.
State of New Hampshire
City of Concord
Federal Bureau of Investigation
U.S. Homeland Security
REPORT AND RECOMMENDATION
Pro se plaintiffs Ekoue Dodji Aboussa and Images Des Rives
Photography (“Images”) have sued several state and federal
defendants, claiming that each has violated their Fourth
Amendment and statutory rights in various ways. The defendants
have each filed motions to dismiss. (Doc. Nos. 21, 22, and 24).
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 and dismiss this case in its entirety.
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 the complaint that are sufficient to
render their 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 the
plaintiffs are proceeding pro se, the court construes the
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
The allegations in the complaint are sparse. It devotes a
single paragraph to each defendant, which the court reproduces
below, before turning to the defendants’ motions:
The U.S postal services violated Images Des Reves's
rights by giving Images Des Reves's mails and
shipments to the Government; The Federal Bureau of
Investigation that has been telephone calling Images
Des Reves violating it's rights to the 4th amendment,
would track Aboussa with it's mails and packages for
shipments and would have access to them at the U.S
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postal services. Keeping Images Des Reves's shipments
from reaching it's clients or destinations.
The State of New Hampshire violated Images Des Reves's
rights by telephone calling Images Des Reves to locate
it's geographical location; action caused by NH state
employees "State police" the State would continuously
damage Aboussa's electronics such as phones, tables,
laptops, computers, clover payment processing
machines, vehicles etc.. violating Images Des Reves's
4th amendment rights as well as the violations of the
Electronic Communication Privacy Act. The State would
damage Aboussa's internet communications, such as
facetime, zoom and other video chats.
The United States Federal Bureau of Investigation
violates Images Des Reves's 4th amendment rights,
having all of Aboussa's family members on the United
States controller and controlling them turning them
against one another. Ekoue Aboussa plaintiff had been
telephone called by the Federal Bureau of
Investigation for the past 7 years and would need to
release Freedom of Information Privacy Act to Images
Des Reves's Immigration lawyer, Francis Agyare whom
had requested the information long time ago.
The City of Concord violated the 4m amendment,
telephone calling Images Des Reves with the City
employees "Concord Police", constantly stopping Images
Des Reves and had once detained the owner of Images
Des Reves for no reasons, even though Images Des Reves
does not break any laws. The City of Concord employees
would telephone call and locate Images Des Reves's
geographical location, and stop the owner of Images
Des Reves due to being a male person of color who has
a wedding photography business. The City of Concord
violated the Electronic Communication Privacy Act.
The United States Homeland Securities Violated the
Electronic communication privacy Act; with the Federal
Bureau of Investigation possessing Aboussa, the owner
of Images Des Reves, and telling the United States
Homeland Securities not to give Aboussa his travel
documents for traveling, the violation of 4th amendment
due to Aboussa being a male person of color that's
being telephone called by the Federal Bureau of
Investigation.
Compl. (Doc. No. 1) at 2-3 (emphasis in original).
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A. Federal Defendants
The federal defendants – United States Postal Service
(“USPS”), Federal Bureau of Investigation (“FBI”), and
Department of Homeland Security (“DHS”) -- assert several bases
for dismissal. Because the court finds that the plaintiffs have
failed to state a claim for relief against any of these
defendants, it recommends dismissal of the claims against them
pursuant to Fed. R. Civ. P. 12(b)(6).
At a minimum, in order to defeat a motion under Rule
12(b)(6), a plaintiff must set forth minimal facts as to who did
what to whom, when, where, and why,” in order to “give the
defendants fair notice of what the claims are and the grounds
for those claims.” Ruiz-Rosa v. Rullan, 485 F.3d 150, 154 (1st
Cir. 2007). Mr. Aboussa has failed to meet this minimum
pleading requirement. He alleges that the USPS violated Images’
Fourth Amendment rights by “giving [its] mails and shipments to
the Government” and allowing the FBI to track him and prevent
Images’ mail from reaching its intended destination. Compl.
(Doc. No. 1) at 2. The lack of any factual allegations
describing the mail at issue or the circumstances surrounding
the alleged seizures is fatal to this claim.
The claims against the FBI are similarly flawed. The
allegation that the FBI has been calling Images describes no
Fourth Amendment violation. And the allegation that the FBI has
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been “controlling” his family members in violation of the Fourth
Amendment and the Electronic Communications Privacy Act, 18
U.S.C. § 2510, et. seq. are little more than bare recitations of
statutes with no factual allegations to support the statutes’
application. Cf. Hamman v. Carpenter, 937 F.3d 86, 90 (1st Cir.
2019) (“A plaintiff is not entitled to ‘proceed perforce’ by
virtue of allegations that merely parrot the elements of the
cause of action.”) (cleaned up).
Finally, Mr. Aboussa’s claim against the FBI under the
Freedom of Information Act (“FOIA”) should also be dismissed.
The complaint does not indicate what documents were requested,
when such a request was made, or whether all administrative
prerequisites were satisfied. As this court has previously
observed:
Before seeking judicial review of an agency's response
to a FOIA request, a plaintiff generally must exhaust
all administrative remedies. Kottori v. F.B.I., 784
F.Supp.2d 83, 85 (D. Mass. 2011) (noting that “FOIA's
administrative scheme ‘favors treating failure to
exhaust as a bar to judicial review’ ”) (quoting
Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004)). To
properly exhaust all administrative remedies, the
requester must comply with the agency's regulations,
Union Leader Corp. v. U.S. Dep't of Homeland Sec., No.
12-CV-18-JL, 2012 WL 1000333, at *1 (D.N.H. Mar. 23,
2012), and must “exhaust ... the administrative
appeals process . . . before bringing suit.” King v.
U.S. Dep't of Justice, No. CV 15-1445 (RDM), 2017 WL
1166309, at *3 (D.D.C. Mar. 28, 2017).
Villar v. Fed. Bureau of Investigation, No. 15-CV-270-LM, 2017
WL 3602008, at *3 (D.N.H. Aug. 21, 2017). In light of the
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foregoing, Mr. Aboussa’s threadbare assertion of a FOIA
violation is insufficient to state a claim for relief.
B. State of New Hampshire
Mr. Aboussa claims that the New Hampshire State Police
have violated his rights under the Fourth Amendment and the ECPA
by calling him to ascertain his location and damaging certain
electronic equipment and internet connections. He asserts that
these actions were taken because he has a wedding business and
he is a “male person of color.” Compl. (Doc. No. 1) at 2, 4.
As with his claims against the federal defendants, these claims,
lacking any details, are insufficient to “give the defendants
fair notice of what the claims are and the grounds for those
claims.” Ruiz-Rosa v. Rullan, 485 F.3d at 154. The claims
against the State of New Hampshire should therefore be
dismissed.
C. City of Concord
Mr. Aboussa’s allegations against the City of Concord are
limited to a Fourth Amendment claim based on “stopping [him] .
. . due to being a male person of color,” employees calling him
to ascertain his location and an unspecified violation of the
ECPA. Compl. (Doc. No. 1) at 2,4. The complaint contains no
information as to the time, place, or circumstances of any of
these occurrences. As this court cautioned in a prior action
Mr. Aboussa brought in this court, “[b]are allegations that the
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defendants violated a lengthy recitation of laws, without facts
which indicate in any way how defendants violated those laws, do
not suffice to survive a motion under Rule 12(b)(6).” Aboussa
v. New Hampshire, No. 22-CV-284-LM, 2023 WL 6317936, at *4
(D.N.H. Sept. 28, 2023). The City of Concord’s motion to
dismiss should be granted.
Conclusion
For the reasons set forth above, the defendants’ motions to
dismiss (Doc. Nos. 21, 22 & 24) should be granted. Dismissal of
the claims brought by Images should be without prejudice.1 Any
objections to this Report and Recommendation must be filed
1 Citing LR 83.6(c) and 28 U.S.C. § 1654, the defendants
argue that Mr. Aboussa should not be permitted to prosecute
claims on behalf of his business. In his objection (Doc. No.
26), Mr. Aboussa asserts that the business is a sole
proprietorship “that has no separate existence from its owner,”
and that he should therefore be allowed to proceed. The First
Circuit Cout of Appeals has interpreted section 1654 as
permitting a pro se litigant to represent only himself. O'Diah
v. Volkswagen of Am., Inc., 91 F. App’x 159, 160 (1st Cir.
2004); but see Bowers v. Denali State Bank, No.
421CV00007SLGDMS, 2021 WL 5871532, at *2 (D. Alaska Aug. 26,
2021), report and recommendation adopted, No. 421CV00007SLGMMS,
2021 WL 5015601 (D. Alaska Oct. 28, 2021) (“In the Ninth
Circuit, sole proprietors “may proceed pro se” under § 1654
because “[a] sole proprietorship has no legal existence apart
from its owner.”) (quoting Sharemaster v. U.S. Sec. & Exch.
Comm'n, 847 F.3d 1059, 1066 n.4 (9th Cir. 2017)). Accordingly,
while the claims asserted by Images do not meet the required
standards of Rule 12(b)(6), dismissal of the claims brought by
Images should be without prejudice.
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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
January 18, 2024
cc: Ekoue Dodji Aboussa, pro se
Counsel of Record
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