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Hussein v. Sessions

United States District Court, D. Minnesota

May 10, 2017

Gamada Ahmed Hussein, Plaintiff,
v.
Jeff Sessions, U.S. Attorney General; U.S. Department of Justice; James Comey, Director, Federal Bureau of Investigation; and John Does, Defendants.

          Gamada Ahmed Hussein, Shakopee, Minnesota, pro se.

          D. Gerald Wilhelm and David W. Fuller, United States Attorney's Office, Minneapolis, Minnesota, for Defendants.

          MEMORANDUM OPINION AND ORDER

          SUSAN RICHARD NELSON United States District Judge

         I. INTRODUCTION

         This matter comes before the Court on Plaintiff Gamada Ahmed Hussein's Objections [Doc. No. 37] to United States Magistrate Judge Steven E. Rau's Report and Recommendation (“R&R”), dated March 3, 2017 [Doc. No. 35]. The magistrate judge recommended that Defendants' Motion to Dismiss [Doc. No. 20] for lack of subject matter jurisdiction and for failure to state a claim be granted, and that the Second Amended Complaint [Doc. No. 18] (“SAC”) be dismissed without prejudice.

         Pursuant to statute, this Court reviews de novo any portion of the magistrate judge's opinion to which specific objections are made, and “may accept, reject, or modify, in whole or in part, the findings or recommendations” contained in that opinion. 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b); D. Minn. LR 72.2(b)(3). For the reasons stated herein, the Court overrules Hussein's objections and adopts the R&R, albeit with minor modifications.

         II. BACKGROUND

         The allegations contained in Hussein's 172-paragraph SAC, although extensive, are highly speculative, conclusory, and not grounded in fact. Paragraph 15 of the SAC is representative of the nature of the claims in this action:

Defendants acting in concert and each of them individually have conspired and contributed to the unlawful acts against Plaintiff, which include intense surveillance, physical, mental and psychological torture, oppression, harassment, discrimination, abuse, threats against his life, attempted assassination, intimidation, invasion of privacy and defamation by the government agencies, both local and federal, since 2008 and still going on. The harm against Plaintiff was also carried out by many other government agencies, officials and personnel who were only acting on the orders of and misinformation from Defendants, including line FBI special agents.

(SAC ¶ 15.)

         All individual Defendants are sued in their official capacities. (Id. at 1.) In total, Hussein brings eleven claims, which may be divided for purposes of analysis into three main groupings. Counts I through VI allege various civil rights claims, including violations of the Fourth and Fourteenth Amendments; the Privacy Act, 5 U.S.C. § 552a;[1] and 42 U.S.C. §§ 1981, 1983, and 1985. (See Id. ¶¶ 108-145.) Count VII alleges a civil cause of action for criminal mail-theft under 18 U.S.C. § 1708. (See Id. ¶¶ 146-149.) Finally, Counts VIII through XI raise tort claims, including invasion of privacy, defamation, and intentional infliction of emotional distress. (See Id. ¶¶ 150-172.) By way of remedy, Hussein asks the Court to declare that Defendants' alleged actions are in violation of the law; enjoin them from engaging in further such illegal activities; and award him compensatory and punitive damages, as well as fees and costs. (See Id. at 34-35.)

         Defendants moved to dismiss on October 4, 2016. As to the civil rights claims, Defendants argue that the United States has not waived sovereign immunity, and thus this Court lacks subject matter jurisdiction over those claims. (See R&R at 3-4.) Defendants further contend that Hussein's mail fraud claim should be dismissed because no civil remedies exist for violating what is a criminal statute, rendering this Court also without jurisdiction over that claim. (See Id. at 4.) Finally, Defendants argue that Hussein has failed to exhaust administrative remedies for his tort claims, and that, in the alternative, those claims should be dismissed under Federal Rule of Civil Procedure 12(b)(6).

         III. DISCUSSION

         A. STANDARD OF REVIEW

         Upon issuance of an R&R, a party may “serve and file specific written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b)(2) (emphasis added). “The objections should specify the portion of the magistrate judge's [R&R] to which objections are made and provide a basis for those objections.” Mayer v. Walvatne, No. 07-cv-1958 (JRT/RLE), 2008 WL 4527774, at *2 (D. Minn. Sept. 28, 2008). Objections which are not specific but merely parrot arguments already presented to and considered by the magistrate judge are not entitled to de novo review. Dunnigan v. Fed. Hom Loan Mortg. Corp., No. 15-cv-2626 (SRN/JSM), 2017 WL 825200, at *3 (D. Minn. Mar. 2, 2017) (citing Mashak v. Minnesota, No. 11-cv-473 (JRT/JSM), 2012 WL 928251, at *2 (D. Minn. Mar. 19, 2012)). Furthermore, when presenting arguments to a magistrate judge, parties must put forth “not only their ‘best shot' but all of their shots.” Ridenour v. Boehringer Ingelheim Pharm., Inc., 679 F.3d 1062, ...


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