United States District Court, W.D. Louisiana, Shreveport Division
JACQUELINE L. WHITAKER
MICHAEL P. HUERTA
DONALD E. WALTER, District Judge.
Before the court is a motion to dismiss, [Doc. #4], filed on behalf of defendant Michael P. Huerta ("Huerta"). Plaintiff Jacqueline L. Whitaker ("Whitaker"), proceeding pro se,  opposes the motion. [Doc. #6]. For the following reasons, the motion is GRANTED.
Whitaker's complaint alleges that she is the target of unauthorized aerial surveillance. [Doc. #1, p. 1]. She alleges that, beginning in January of 2011, "military planes from Barksdale Air Force base, unmarked small planes/helicopters, and unmanned drones" were regularly dispatched to her home to conduct surveillance on her, sometimes multiple times in a single day. Id. She further alleges that the surveillance occurred throughout the greater Shreveport-Bossier area, including at her place of employment, her daughter's place of employment, and her church. Id. at 2-4.
Whitaker's complaint does not state why she believes the surveillance is taking place. However, an earlier lawsuit filed by Whitaker in this court is instructive on this point. See Whitaker v. Barksdale Air Force Base, et. al, No. 5:14-cv-02342 (W.D. La. 2015) (" Whitaker I "). In that case, Whitaker claimed that federal and state officials began tracking her due to a dispute with Bob Coates, a "retired airman" who lives across the street from her. Whitaker I, Doc. #1, p. 1. After Whitaker lodged numerous complaints about Coates operating a daycare center out of his home, Coates allegedly told officials at Barksdale that Whitaker "was terrorizing his family." Id. As a result of Coates's statement, Barksdale officials allegedly directed the Federal Bureau of Investigation and the Louisiana State Police to follow Whitaker. Id. at 2-3. Whitaker claimed that she was then subjected to all manner of illegal surveillance and monitoring, including surveillance from the air. Id. at 2-3. The original suit was dismissed without prejudice on February 11, 2015. Whitaker I, Doc. #10.
One month after the dismissal, Whitaker filed the instant suit focusing exclusively on alleged aerial surveillance. This time, Whitaker claims that Michael P. Huerta, the head administrator of the Federal Aviation Administration ("FAA"), "authorized unrestricted air surveillance against her without a court order, " in violation of "FAA rules and procedures." [Doc. #1, p. 1; Doc. #3]. She therefore brings this Bivens  action against Huerta for violating her Fifth-Amendment right to procedural due process. Id. at 5-7. She also asserts a state-law tort claim for intentional infliction of emotional distress. Id. Huerta is the only defendant named in the suit.
Huerta now moves for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a plausible claim for relief. [Doc. #4]. Additionally, Huerta argues that Whitaker's claim should be dismissed based on res judicata and failure to state a cognizable claim for emotional distress under Louisiana law. Id. at 4-7.
II. LAW & ANALYSIS
As a preliminary matter, the court finds that the dismissal of Whitaker's earlier suit does not have preclusive effect on the current suit. In the original case, the court dismissed the matter without prejudice due to the named defendants being immune from suit under the Eleventh Amendment. Whitaker I, Doc. #10. Thus, the issues determined in the first suit are different from the issues presented in this suit. It is true that the first dismissal briefly addressed Whitaker's illegal-surveillance allegations against certain individuals referenced in Whitaker's pleadings and concluded that those allegations lacked merit. Id. at 17-18. However, Huerta was not one of those individuals. Because the prior judgment was not a final judgment on the merits as to the claims against Huerta, the doctrine of res judicata does not apply. See, e.g., Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005) (discussing res judicata requirements).
Huerta has moved for dismissal pursuant to Rule 12(b)(6). A motion filed pursuant to Rule 12(b)(6) challenges the sufficiency of a plaintiff's allegations. When ruling on a 12(b)(6) motion, the court accepts the plaintiff's factual allegations as true and views those facts in the light most favorable to the plaintiff. Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003). To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 652, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). "A claim has facial plausibility when the plaintiff pleads the factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.... Determining whether a complaint states a plausible claim for relief... [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. Although the court must accept as true all factual allegations set forth in the complaint, the same presumption does not extend to "conclusory allegations, unwarranted factual inferences, or legal conclusions." Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007) (quoting Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005)); see also Iqbal, 556 U.S. at 664 ("While legal conclusions can provide the complaint's framework, they must be supported by factual allegations.").
Whitaker bases her civil-rights claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the United States Supreme Court held that the Constitution provides an implied cause of action against any person who, under the color of federal law, acts to deprive another person of any right, privilege, or immunity secured by the Constitution and laws of the United States. Id. A Bivens action is analogous to an action under 42 U.S.C. § 1983, the difference being that Bivens applies to federal officials whereas a § 1983 claim applies to state officials. Izen v. Catalina, 398 F.3d 363, 367 n.3 (5th Cir. 2005). The analysis of a § 1983 action applies equally to a Bivens action. Id.
In order to state a cognizable Bivens claim, the plaintiff must allege: (1) that a constitutional right has been violated; and (2) that the conduct complained of was committed by a person acting under color of federal law. See, e.g., Hessbrook v. Lennon, 777 F.2d. 999, 1005 (5th Cir. 1985) (citing Davis v. Passman, 442 U.S. 228, 247 (1979)). Under both § 1983 and Bivens, "supervisory officials are not liable for the actions of subordinates on any theory of vicarious liability." Thompkins v. Belt, 828 F.2d 298, 303 (citations omitted). Rather, the plaintiff must show "(1) [the supervisor's] personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Id. at 304 (citing Harvey v. Andrist, 754 F.2d 569, 572 (5th Cir. 1985). Otherwise, a supervisor can only be held liable if the supervisor implements a policy so deficient that the policy itself is a violation of the plaintiff's constitutional rights. Id.
Even accepting Whitaker's allegations as true, she fails to state a plausible claim that a constitutional violation has taken place. At best, Whitaker establishes that there may have been low-flying aircraft in her vicinity on the dates listed in her complaint. The court does not accept as true the unwarranted factual inference that the aircraft were spying on her, much less the purely conclusory allegation that the head of the FAA personally authorized covert espionage. See, e.g., Plotkin v. IP Axess, Inc., 407 F.3d 690, 696 (5th Cir. 2002) ("We do not accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions."). There is no a reasonable expectation that further litigation or discovery will reveal that aerial surveillance took place or that Huerta - or any other person - personally engaged in any illegal conduct. As such, dismissal of Whitaker's Bivens claim is appropriate under Rule 12(b)(6).
Whitaker's state-law claim for emotional distress claim likewise fails. Under Louisiana law, a plaintiff seeking to recover for emotional distress must establish: "(1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct." White v. Monsanto Co., 585 So.2d 1205 (La. 1991). The allegations of Whitaker's complaint fail to give rise to a plausible belief that Huerta took any actions against plaintiff at all, let alone "extreme and outrageous" actions. Furthermore, there is no serious claim that Huerta "desired to ...