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Pennie v. Obama

United States District Court, N.D. Texas, Dallas Division

June 2, 2017

DEMETRICK PENNIE and LARRY KLAYMAN, Plaintiffs,
v.
BARACK HUSSEIN OBAMA, ERIC HOLDER, LOUIS FARRAKHAN, NATION OF ISLAM, REVEREND AL SHARPTON, NATIONAL ACTION NETWORK, BLACK LIVES MATTER, RASHAD TURNER, OPAL TOMETI, PATRISSE CULLORS, ALICIA GARZA, DERAY MCKESSON, JOHNETTA ELZIE, NEW BLACK PANTHER PARTY, MALIK ZULU SHABAZZ, GEORGE SOROS, and HILLARY CLINTON, Defendants.

          MEMORANDUM OPINION AND ORDER

          Sam A. Lindsay United States District Judge

         Before the court are: the Individual Federal Defendants' Motion to Dismiss (Doc. 21), filed September 19, 2016; The United States of America's Motion to Dismiss (Doc. 23), filed September 19, 2016; Motion to Dismiss by Deray McKesson (Doc. 32), filed September 28, 2016; Defendant Reverend Al Sharpton and National Action Network's Alternative Motion to Dismiss Plaintiffs' Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(1)(2)(6) and 12(h)(3) (Doc. 40), filed September 30, 2016; the Honorable Minister Farrakhan's Motion to Dismiss the Purported Amended Complaint Pursuant to Federal Rule[s] of Civil Procedure 12(b)(1)(2)(3)(4)(5)(6) and 12(h)(3) (Doc. 41), filed September 30, 2016; Motion for Sanctions Against Plaintiffs and Plaintiffs' Counsel by Defendant Deray McKesson (Doc. 74), filed November 25, 2016; Plaintiffs' Cross-Motion for Sanctions (Doc. 87), filed December 16, 2016; Motion to Dismiss of Defendant George Soros (Doc. 80), filed December 5, 2016; Motion to Dismiss of Defendant Malik Zulu Shabazz, Esq. (Doc. 90), filed December 19, 2016; Motion to Dismiss of Defendant Rashad Turner (Doc. 103), filed January 23, 2017; Defendants Opal Tometi and Patrisse Cullors' Motion to Dismiss (Doc. 112), filed February 7, 2017; and Defendant Hillary Rodham Clinton's Motion to Dismiss the Amended Complaint (Doc. 141), filed May 8, 2017. Having considered the motions, responses, replies, pleadings, record, and applicable law, the court grants the Individual Federal Defendants' Motion to Dismiss (Doc. 21); denies the Motion for Sanctions Against Plaintiffs and Plaintiffs' Counsel by Defendant Deray McKesson (Doc. 74); denies Plaintiffs' Cross-Motion for Sanctions (Doc. 87); and denies as moot all remaining motions to dismiss (Docs. 23, 32, 40, 41, 80, 90, 103, 112, and 141).

         I. Background Facts and Procedural History

         On July 9, 2016, Larry Klayman (“Klayman”) brought this purported class action lawsuit on behalf of himself and “law enforcement persons of all races and ethnicities, as well as relevant Jews, and Caucasians” against Defendants President Barack Hussein Obama (“President Obama”); former Attorney General Eric H. Holder, Jr. (“General Holder”); Minister Louis Farrakhan (“Minister Farrakhan”); Reverend Al Sharpton (“Reverend Sharpton”); Rashad Turner (“Turner”); Patrisse Cullors (“Cullors”); Alicia Garza (“Garza”); Deray McKesson (“McKesson”); and Opal Tometi (“Tometi”). Pl.'s Orig. Class Action Compl. ¶ 5 (Doc. 1). On September 16, 2016, Klayman, along with Sergeant Demetrick Pennie (“Sergeant Pennie”), a police officer employed by the City of Dallas Police Department, filed an amended complaint in which they named as additional Defendants Nation of Islam; National Action Network (“NAN”); Black Lives Matter; Johnetta Elzie (“Elzie”); New Black Panther Party; Malik Zulu Shabazz (“Shabazz”); George Soros (“Soros”); and former Secretary of State Hillary Clinton (“Secretary Clinton”) (collectively, “Defendants”). See Pls.' Am. Compl. (the “Amended Complaint”) (Doc. 16).

         Klayman is a former federal prosecutor and the “high profile” founder of Freedom Watch and Judicial Watch. Pls.' Am. Compl. ¶ 16. The mission of these entities is to “enforce the rule of law and fight against racism, public corruption, and to further civil rights and equality for all persons under the U.S. Constitution.” Id. Plaintiffs assert that “Klayman has been highly visible and active in defending police, other law enforcement officials, Jews, Christians and Israel and opposing Defendants' efforts to stir up racial, ethnic and religious conflict to suit their agendas in every area of American life in court and in public.” Id.

         In the Amended Complaint, Plaintiffs purport to bring this lawsuit on behalf of themselves, and a proposed class that they define as including: “all police officers and other law enforcement persons of all races and ethnicities including but not limited to Jews, Christians and Caucasians who have been threatened and targeted and harmed by the Defendants' ignited race war, and who reside within this district and the domestic United States.” Id. ¶ 5.

         The gravamen of Plaintiffs' claims is that Defendants have made public statements that have incited criminal activity by others across the country, including riots, murders, and threats of death and bodily injury, as well as the Dallas Police Shooting in July 2016. Plaintiffs allege that Defendants participated in a conspiracy to incite “their supporters and others to engage in threats of [sic] and attacks to cause serious bodily injury or death upon police officers and other law enforcement persons of all races and ethnicities including but not limited to Jews, Christians and Caucasians.” Id. ¶ 1. Plaintiffs allege that Defendants undertook these actions with the aim of “incit[ing] a racial war in America.” Id. ¶ 54. Among other things, Plaintiffs allege that Defendants, acting in concert, have: fomented a race war (¶ 16); encouraged disaffected minority groups to ignore, disrespect, and assault law enforcement officials (¶ 27); incited violence by publicly stating that law enforcement are disproportionately arresting and prosecuting minority groups (¶ 30); caused an increase in crime rates by preventing law enforcement officials from doing their duties (¶ 31); sent a “clear signal that it is acceptable and required to kill white people, especially white police officers and other law enforcement[]” (¶ 42); and accused the legal system of a conspiracy to kill black men (¶ 44). Plaintiffs allege that:

The inevitable, entirely foreseeable, and predictable result directly and proximately caused by the war on police and law enforcement incited by each and ever[y] Defendant[] came to a head on July 7, 2016[, ] in Dallas, Texas. At around 9:00 p.m., on July 7, 2016, at a “Black Live Matters” protest, at least one sniper shot twelve (12) police officers that were on duty to keep the peace at the rally. (“Dallas Police Shooting”).

Id. ¶ 17.

         A. Allegations as to President Obama

         With respect to President Obama, Plaintiffs allege that he “used his position of great authority to ratify, endorse, embrace, and condone the violence against police officers and other law enforcement persons of all races and ethnicities including but not limited to Jews, Christians and Caucasians perpetrated by his co-Defendants[.]” Id. ¶ 169. Plaintiffs allege that:

when someone as influential as the President of the United States of America affirmatively acts to perpetrate, incite, condone, ratify and further propagate the violent and hateful dogmas guiding [Black Lives Matter, Nation of Islam, and New Black Panther Party], as well as the other Defendants, the predictable result is the explosion of violence against police officers and other law enforcement persons of all races and ethnicities including but not limited to Jews, Christians and Caucasians[.]

Id. Plaintiffs further allege that “[r]evealing the knowing, willful, and intentional purpose of the Defendants' concerted actions, on October 30, 2008, then[-]candidate Defendant Obama roared to an excited crowd of his supporters: ‘We are five days away from fundamentally transforming America.'” Id. ¶ 170. Plaintiffs allege that by definition, “to fundamentally transform an entire society, requires replacing the old society with a new version of society.” Id. ¶ 171. Plaintiffs allege that to effect this, President Obama used a “divide and conquer” strategy, by furthering, in concert with the other Defendants, “a race war pitting blacks against whites, furthering the mission and credo of Muslims and Black Muslims such as Defendant Farrakhan and others against police officers and other law enforcement persons of all races and ethnicities including but not limited to Jews, Christians and Caucasians.” Id. Plaintiffs allege that President Obama “fueled [and] incited discord by stating in his frequent and persistent theme ‘that there's a long history in the country of African Americans and Latinos being stopped by law enforcement disproportionately.'” Id. ¶ 174. Plaintiffs allege that President Obama used “anti-police rhetoric” following various high profile shootings of African Americans and did not try to stop riots related to the shootings, stirring up racial tensions and hatred for police officers. Id. ¶¶ 175-77.

         According to Plaintiffs, President Obama has “conspired with all Defendants and others to incite violence, looting, arson, assault against law enforcement and helpless communities with the purpose of making a new ‘fundamentally transformed America' appear preferable to the crime waves and chaos they themselves are creating.” Id. ¶ 178. Plaintiffs also allege that President Obama “has conspired with, encouraged, engaged in joint planning with, and developed strategies, plans, and courses of action with parties responsible for carrying out acts of deadly violence against police officers and other law enforcement persons of all races and ethnicities including but not limited to Jews, Christians and Caucasians[, ]” and has done so acting in concert with the other Defendants. Id. ¶ 179.

         As one example of the alleged conspiracy with co-Defendants, Plaintiffs allege that Reverend Sharpton “has visited with [President] Obama seventy-three (73) times in the White House as of February 27, 2015.” Id. ¶ 180. Plaintiffs allege that when Reverend Sharpton visited the White House in February 2015, the topic of the meeting, according to the White House, “was the presidential task force formed in response to violent clashes with police in Ferguson, Missouri, and New York sparked by the killings of Michael Brown and Eric Garner.” Id.

         As another example of the alleged conspiracy, Plaintiffs allege that President Obama has ties to the black nationalist movement in Chicago and that, for many years, he and Minister Farrakhan, who has endorsed him and called him the new “messiah, ” have been connected either directly or through intermediaries. Id. ¶¶ 181-82.

         Plaintiffs also contend that President Obama conspired with Black Lives Matter, as evidenced by a White House meeting with Black Lives Matter after the Dallas Police Shooting, at which he stated, “[w]e're not at a point yet where communities of color feel confident that their police departments are serving them with dignity and respect and equality.” Id. ¶ 185. Plaintiffs allege President Obama made this statement “to implicitly blame law enforcement officers for the Dallas Police Shooting, instead of holding the true culprits-his co-Defendants-responsible.” Id.

         Plaintiffs allege that President Obama's acts of inviting his co-Defendants to the White House “serve to legitimize, ratify and further the hateful and violent doctrines that these parties advocate and is a direct indication of [President] Obama's attempts to help perpetrate, incite, condone, ratify and further propagate the racist actions” of his co-Defendants, “resulting in threats and severe bodily injury or death to law enforcement and others[.]” Id. ¶ 186.[1]

         B. Allegations as to General Holder

         With respect to General Holder, Plaintiffs allege that he “used his position of authority and influence to help perpetrate, incite, condone, ratify and further propagate the hateful and violent message and actions perpetrated by co-Defendants [Nation of Islam, New Black Panther Party, and Black Lives Matter] by improperly targeting law enforcement officers for investigation.” Id. ¶ 210. Plaintiffs allege that throughout “his time as Attorney General, Defendant Holder's Department of Justice (“DOJ”) publicly targeted and blamed America of ‘biased policing' and ‘implicit bias' in law enforcement[, ]” and that he “incited a civil war against police and law enforcement agents during his time as Attorney General.” Id. ¶¶ 211-12. Plaintiffs allege that General Holder and the DOJ spread “false propaganda” to “inaccurately convince blacks that they are being targeted by police and other law enforcement persons, ” and that without these lies “the violent uprising and civil war against police would not have occurred.” Id. ¶ 216. Finally, Plaintiffs allege that:

As a result of Defendant Holder's actions and inactions, to help perpetrate, incite, condone, ratify and further propagate the hateful and violent dogmatic beliefs of co-Defendants, they have been allowed to spread and profligate [sic], and have caused explosions of violence against police officers and other law enforcement persons of all races and ethnicities including but not limited to Jews, Christians and Caucasians, including threats and severe bodily injury or death against Plaintiffs and those similarly situated.

Id. ¶ 220.

         C. Allegations as to Standing

         Sergeant Pennie and Klayman do not allege they were the targets of any of the alleged violence against law enforcement before filing this lawsuit, but they contend that they have received threats as a result of filing this lawsuit. Id. ¶¶ 15-16. Plaintiffs allege that Sergeant Pennie has “been threatened with death and/or serious bodily harm by Defendants, acting alone and/or in concert.” Id. ¶ 15. Plaintiffs allege that Klayman “received a call from Defendant New Black Panther Party and Black Lives Matter acting in concert with the other Defendants, ” and that certain threats of physical harm were made during the call. Id. ¶ 16. Plaintiff Klayman also asserts he was “present in the United States of America before and at the time that innocent police oficers” and others were “subjected to threats and actual violence.” Id.

         D. The Lawsuit

         Plaintiffs, acting through Klayman as their counsel, assert the following claims against Defendants: (1) “Deprivation of Civil Rights: Aiding and Abetting Murder” in violation of 42 U.S.C. § 1983 (“Count One”); (2) “Conspiracy to Deprive Plaintiffs of Civil Rights: Right to Life and Liberty” in violation of 42 U.S.C. § 1985 (“Count Two”); (3) “Fifth Amendment Violation: Deprivation of Right to Life” in violation of “Bivens v. VI Unknown Named Agents of Federal Bureau of Narcotics” (“Count Three”); (4) assault (“Count Four”); (5) intentional infliction of emotional distress (“Count Five”); and (6) “Terrorist Promotion of Gang Activity under Florida Law” (“Count Six”). Pls.' Am. Compl. ¶¶ 221-61. For relief, Plaintiffs request:

that judgment be entered against Defendants, each and every one of them, jointly and severally, for compensatory and actual damages as a result of their demonstrable physical and emotional injury to Plaintiffs, punitive damages because of Defendants' callous and reckless indifference and malicious acts, and attorney[']s fees, costs, an award in excess of $500, 000, 000.00 or $1, 500, 000, 000.00 in trebled damages where appropriate, punitive damages, and such other relief the Court may deem just and proper.

Id. at 65 (“Prayer for Relief”).

         Of the seventeen Defendants named in this lawsuit, five have not filed motions to dismiss or otherwise appeared, namely, Defendants Garza, Elzie, Nation of Islam, New Black Panther Party, and Black Lives Matter. The court has already dismissed without prejudice all claims against Defendants Garza and Elzie based on Plaintiffs' failure to effect service of process under Federal Rule of Civil Procedure 4(m). See Order (Doc. 127). For the reasons stated below, see infra Sec. III(C), the court similarly dismisses without prejudice all claims against Defendants Nation of Islam, New Black Panther Party, and Black Lives Matter pursuant to Rule 4(m) for failure to effect service of process, properly, notwithstanding numerous extensions of time allowed by the court.

         Of the twelve Defendants who have been served, all have filed motions to dismiss Plaintiffs' claims and this action for, among other reasons, lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, improper service of process, and failure to state claims upon which relief can be granted. See Doc. Nos. 21, 23, 32, 40, 41, 80, 90, 103, 112, and 141. Each motion has been fully briefed. Plaintiffs, in response to the various motions to dismiss, have withdrawn Counts One and Two with respect to Defendants President Obama and General Holder (the “Individual Federal Defendants”), and Counts One, Two, and Three as against the remaining nonfederal Defendants. The court treats all withdrawn claims as a voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1)(A)(i), as no answer or summary judgment motion has been filed, except that of Defendant Turner. These counts as to Defendant Turner will be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2), as he filed an answer; however, no objection has been filed to his dismissal.

         For the reasons that follow, the court concludes that Count Three, as to the Individual Federal Defendants, should be dismissed because Plaintiffs lack standing. Further, given that Plaintiffs have agreed to withdraw all federal claims (Counts One through Three) against the remaining ten Defendants, only state law claims remain and, in the absence of federal subject matter jurisdiction under either 28 U.S.C. §§ 1331 or 1332(a), the court declines to exercise supplemental jurisdiction over all state law claims and will dismiss them without prejudice. Therefore, the court will deny as moot all remaining motions to dismiss.

         II. Applicable Legal Standards A.Federal Rule of Civil Procedure 12(b)(1) - Subject Matter Jurisdiction

         A federal court has subject matter jurisdiction over civil cases “arising under the Constitution, laws, or treaties of the United States, ” or over civil cases in which the amount in controversy exceeds $75, 000, exclusive of interest and costs, and in which diversity of citizenship exists between the parties. 28 U.S.C. §§ 1331, 1332. Federal courts are courts of limited jurisdiction and must have statutory or constitutional power to adjudicate a claim. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994) (citations omitted); Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Absent jurisdiction conferred by statute or the Constitution, they lack the power to adjudicate claims and must dismiss an action if subject matter jurisdiction is lacking. Id.; Stockman v. Federal Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998) (citing Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994)). A federal court must presume that an action lies outside its limited jurisdiction, and the burden of establishing that the court has subject matter jurisdiction to entertain an action rests with the party asserting jurisdiction. Kokkonen, 511 U.S. at 377 (citations omitted). “[S]ubject-matter jurisdiction cannot be created by waiver or consent.” Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001).

         A federal court has an independent duty, at any level of the proceedings, to determine whether it properly has subject matter jurisdiction over a case. Ruhgras AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (“[S]ubject-matter delineations must be policed by the courts on their own initiative even at the highest level.”); McDonal v. Abbott Labs., 408 F.3d 177, 182 n.5 (5th Cir. 2005) (A “federal court may raise subject matter jurisdiction sua sponte.”) (citation omitted).

         In considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, “a court may evaluate (1) the complaint alone, (2) the complaint supplemented by undisputed facts evidenced in the record, or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001) (citation omitted). Thus, unlike a Rule 12(b)(6) motion to dismiss for failure to state a claim, the district court is entitled to consider disputed facts as well as undisputed facts in the record and make findings of fact related to the jurisdictional issue. Clark v. Tarrant Cty., 798 F.2d 736, 741 (5th Cir. 1986). All factual allegations of the complaint, however, must be accepted as true. Den Norske Stats Oljeselskap As, 241 F.3d at 424.

         B. Rule 4 - Service of Process

         It is undisputed that “[b]efore a . . . federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (citing Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)). Service of process in a federal action is governed generally by Rule 4 of the Federal Rules of Civil Procedure. When service is not made on a defendant within 90 days after filing of the complaint, the court may, after notice to the plaintiff, dismiss the action as to that defendant without prejudice, or, instruct the plaintiff to effect service within a specific time. Fed.R.Civ.P. 4(m).

         The intent of the rules for serving process is to give sufficient notice to defendants of any actions filed against them. See 4 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1061 (4th ed. 2013) (“[Federal Rule 4] was designed to provide maximum freedom and flexibility in the procedures for giving all defendants . . . no matter where they might be located, notice of the commencement of the action and to eliminate unnecessary technicality in connection with service of process.”).

         III. Analysis of the Individual Federal Defendants' Motion to Dismiss

         A. Standing

         Plaintiffs assert six claims against the Individual Federal Defendants: (1) “Deprivation of Civil Rights: Aiding and Abetting Murder” in violation of 42 U.S.C. § 1983 (Count One); (2) “Conspiracy to Deprive Plaintiffs of Civil Rights: Right to Life and Liberty” in violation of 42 U.S.C. § 1985 (Count Two); (3) “Fifth Amendment Violation: Deprivation of Right to Life” in violation of “Bivens v. VI Unknown Named Agents of Federal Bureau of Narcotics” (Count Three); (4) assault (Count Four); (5) intentional infliction of emotional distress (Count Five); and (6) “Terrorist Promotion of Gang Activity under Florida Law” (Count Six). Pls.' Am. Compl. ¶¶ 221-61.

         On September 19, 2016, the Individual Federal Defendants filed a Motion to Dismiss the federal claims asserted in Counts One, Two, and Three.[2] In support of dismissal, the Individual Federal Defendants contend that Plaintiffs lack standing, that their claims are barred by absolute and qualified immunity, and that they have failed to state a plausible claim for relief.

         As previously stated, Plaintiffs, in response to the Individual Federal Defendants' Motion to Dismiss, have agreed to withdraw Counts One and Two. See Pls.' Resp. 25. Accordingly, the court will dismiss without prejudice Counts One and Two and limit its analysis to the Individual Federal Defendants' arguments made in support of dismissing Count Three.

         The threshold issue of subject matter jurisdiction must be resolved first. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam) (“When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.”).

         The jurisdiction of federal courts is defined and limited by Article III of the United States Constitution. Flast v. Cohen, 392 U.S. 83, 94 (1968). Article III, § 2 of the Constitution extends the “judicial Power” of the United States only to “Cases” or “Controversies.” U.S. Const. art III, § 2. Under the “case-or-controversy” requirement, each plaintiff must establish he or she has standing to sue. Raines v. Byrd, 521 U.S. 811, 818 (1997).

         The “irreducible constitutional minimum” of standing has three elements: (1) the plaintiff must suffer an “injury in fact, ” meaning the injury must be “an invasion of a legally protected interest” and must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical;” (2) causation, meaning the injury must be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court;” and (3) redressability, meaning that it must be likely, not merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). When a case is at the pleading stage, as here, “the plaintiff must ‘clearly . . . allege facts demonstrating' each element.” Spokeo v. Robins, __ U.S. __, 136 S.Ct. 1540, 1547 (2016) (quoting Warth v. Seldin, 422 U.S. 490, 498-99 (1975)). “The triad of injury in fact, causation, and redressability constitutes the core of Article III's case-or-controversy requirement, and the party invoking federal jurisdiction bears the burden of establishing its existence.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103-04 (1998); see also Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794, 800 (5th Cir. 2012) (same).

         The Individual Federal Defendants argue that Plaintiffs have failed to meet any of the three requirements for Article III standing, and that, therefore, the Amended Complaint must be dismissed for lack of jurisdiction. In response, Plaintiffs argue:

Defendants contend that Plaintiffs lack standing to bring this action. This contention is categorically false. As Plaintiffs pled, Defendants have acted in concert to create, in effect, a war on law enforcement officers and others through repeated calls to death and violence. Plaintiff Klayman is a member of the law enforcement community, as a former U.S. Department of Justice attorney, as well as a member of this Court. Plaintiff Pennie is a sergeant with the Dallas Police Department. Indeed, the Federal Defendants have personally threatened both Plaintiffs with death and/or serious bodily harm, directly or indirectly, as a result of their manufactured war on police. Am. Compl. at ¶¶ 16, 27.

Pls.' Resp. 5 (Doc. 56). The court will address each required element of standing in turn.

         The Individual Federal Defendants argue that Plaintiffs have failed to articulate an injury in fact. The injury-in-fact test “requires that the party seeking review be himself among the injured.” Lujan, 504 U.S. at 562-63. To have standing, “a plaintiff must have more than a general interest common to all members of the public.” Lance v. Coffman, 549 U.S. 437, 439 (2007).

         According to the Amended Complaint, Sergeant Pennie and Klayman were not the target of any of the alleged violence against law enforcement before filing this lawsuit, but they have received threats as a result of filing this lawsuit. Pls.' Am. Compl. ¶¶ 15-16. Plaintiffs allege that Sergeant Pennie has “been threatened with death and/or serious bodily harm by Defendants, acting alone and/or in concert.” Id. ¶ 15. Plaintiffs allege that Klayman “received a call from Defendant New Black Panther Party and Black Lives Matter acting in concert with the other Defendants, ” and that certain threats of physical harm were made during the call. Id. ¶ 16. Klayman also alleges he was “present in the United States of America before and at the time the innocent police officers” and others were “subjected to threats and actual violence.” Id.

         Sergeant Pennie fails to allege any facts supporting his conclusory allegation that he was threatened, including when he was threatened, how he was threatened, and by whom. Such conclusory allegations are insufficient to confer standing. See Beal v. Midlothian Indep. Sch. Dist. 070908 of Ellis Cty., 2002 WL 1033085, at *3 (N.D. Tex. May 21, 2002) (dismissing for lack of standing because “[o]ther than one boilerplate, conclusory allegation . . . Plaintiffs do not set forth any specific factual allegations” that demonstrated an injury in fact); Sartin v. EKF Diagnostics, Inc., 2016 WL 3598297, at *3 (E.D. La. July 5, 2016) (“Absent supporting factual allegations, [plaintiff's] bare assurance that an unspecified injury exists is insufficient to establish Article III standing.”). With respect to Klayman, even assuming these threats were made, as the court must in addressing a motion to dismiss, nothing in the Amended Complaint suggests that Plaintiff Klayman was threatened by the Individual Federal Defendants. Further, Klayman's allegation that he has standing because he was an individual present in the United States when violence occurred demonstrates that he has no “concrete and particularized” injury, but instead only has a “general interest common to all members of the public.” Lance, 549 U.S. at 439.

         In opposition to the Individual Federal Defendants' argument that the pleadings are insufficient to allege an injury in fact, Plaintiffs contend that they have standing because the injury alleged need not necessarily be one that the Plaintiff has already suffered, and can be satisfied by a future injury that is likely to occur. In support, Plaintiffs cite a series of cases for the proposition that a threat of future harm can be an injury in fact, and contend that courts can use probabilistic evidence to establish the concreteness of the injury. See ...


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