2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-6-2009

Kevin Twillie v. FBI Clevaland OH

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3182

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Recommended Citation

"Kevin Twillie v. FBI Clevaland OH" (2009). 2009 Decisions. Paper 288.

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CLD-027 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 09-3182

 

KEVIN L. TWILLIE, 

 Appellant

v.

STATE OF OHIO, CLEVELAND F.B.I.;

PENNSYLVANIA, READING, F.B.I.;

PITTSBURGH, PA F.B.I.

_____________________________________

On Appeal From the United States District Court

For the Western District of Pennsylvania

(D.C. Civ. No.09-cv-00013)

District Judge: Honorable Maurice B. Cohill

_______________________________________

Submitted For Possible Summary Action 

Under Third Circuit LAR 27.4 and I.O.P. 10.6

October 29, 2009

Before: BARRY, FISHER and COWEN, Circuit Judges

(Opinion filed: November 6, 2009)

_________

OPINION

_________

PER CURIAM

Kevin L. Twillie filed a pro se complaint against various field offices of the

Federal Bureau of Investigation (“F.B.I.”). In his complaint, he alluded generally to
“retaliation tactics” and “harassment.” He then described the circumstances that

precipitated his arrest for indecent assault in Pennsylvania, his sentence for the crime, his

decision to go to California after his sentencing, and his subsequent arrest and extradition

to Pennsylvania. Twillie also noted his efforts in Pennsylvania to get his belongings and

luggage from a California storage facility and to have a commercial tax preparer reissue

him a check. He alleged that the F.B.I. was somehow involved in efforts to try to hit him

and make him a paraplegic, that F.B.I. agents or informants are in “group sessions” in

which he participates, and that field offices of the F.B.I. are spreading rumors that he

likes boys instead of women. Seemingly related to his claim of rumormongering, he

stated that he guesses that a woman who invited him to her house to watch her son after

he met her at a rib festival was an F.B.I. agent. Twillie sought $5,000,000 in “punitive

damages” from several F.B.I. field offices, most of which were not named as defendants

in his complaint.

The defendants filed a motion to dismiss Twillie’s complaint, arguing that the

District Court lacked subject matter jurisdiction and that the allegations were frivolous,

nonsensical, and otherwise failed to state a claim against them. The District Court

granted the motion and dismissed the complaint. The District Court construed the

complaint as alleging, under Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1977), a claim of harassment and retaliation against the F.B.I.. 

Noting that a Bivens claim cannot be maintained against a federal agency such as the

F.B.I., the District Court dismissed the suit for failure to state a claim upon which relief
can be granted. The District Court held that any amendment to state a Bivens claim

against the defendants would be futile, so the District Court denied Twillie leave to

amend. 

Twillie subsequently filed the following one-line “claim”: “I would like to state

that my claim is, due to everything I documented my civil rights were violated, and my

amendments, so I would like relief granted.” The District Court construed Twillie’s

claim as a motion for reconsideration and denied it. 

Twillie appeals the District Court’s judgment. He filed a two-page informal brief

in which he implied that the District Court did not liberally construe his complaint; cited

the Fourteenth Amendment; claimed that his rights are being violated every day by U.S.

officers; stated that his belongings were taken from the basement of an apartment

building in 1992 or 1993 by an F.B.I. informant; and further stated that an F.B.I. field

office is defaming him by saying that he did not graduate from high school and that he is

schizophrenic. 

After Twillie filed his brief, the defendants filed a motion for summary affirmance

of the District Court’s judgment. In their motion, the defendants argue that there is no

basis in law or fact to disagree with the District Court’s ruling. They claim that Twillie’s

implication that the District Court did not liberally construe the complaint is frivolous. 

They contend that Twillie waived any Fourteenth Amendment claim by not raising it in

the District Court (and that it is also without merit if taken on its face, as the Fourteenth

Amendment applies to actions by a state not a federal actor, and also without merit if it
were taken as an effort to assert a claim under the Fifth Amendment). The defendants

similarly contend that the claims relating to the removal of belongings in 1992 or 1993

cannot be raised for the first time on appeal and could not survive a motion to dismiss. 

We will grant the defendants’ motion and summarily affirm the judgment of the

District Court because no substantial question is presented on appeal. L.A.R. 27.4; I.O.P.

10.6. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over a district court’s dismissal of a complaint for failure to state a claim upon which

relief can be granted. See Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir. 2004). We

review a decision to deny leave to amend, as well as a denial of a motion for

reconsideration, for abuse of discretion. See Koshatka v. Phila. Newspapers, Inc., 762

F.2d 329, 333 (3d Cir. 1985); Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000).

The District Court did not err in dismissing the complaint against the defendants. 

Despite Twillie’s claim to the contrary, the District Court explicitly and obviously

construed Twillie’s claims liberally, affording him the allowances due a pro se litigant. 

See Estelle v. Gamble, 429 U.S. 97, 107 (1976). Similarly construing the complaint

liberally, we agree with the District Court that Twillie presented claims against a federal

agency, not against individual officers or agents of a federal agency. A claim against a

federal agency cannot be raised under Bivens. See Wilkie v. Robbins, 551 U.S. 537, 550

(2007) (citing FDIC v. Meyer, 510 U.S. 471 (1994), for the proposition that Bivens has

not been extended to claims against federal agencies). 

Furthermore, there is an alternative basis for the District Court’s judgment in the
record. See Erie Telecomms. v. Erie, 853 F.2d 1084, 1089 (3d Cir. 1988) (holding that

we may affirm on an alternative basis supported by the record). To survive a motion to

dismiss, a complaint must “‘state a claim to relief that is plausible on its face.’” See

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007)). A claim is facially plausible when “the plaintiff pleads factual

content that allows the court to draw the reasonable interference that the defendant is

liable for the misconduct charged.” Id. (citing Twombly). To determine plausibility, we

consider the context of the claims and draw on our judicial experience and common

sense. See id. at 1950. 

In this case, we need not accept as true Twillie’s general allusions to “retaliation

tactics” and “harassment.” See Iqbal, 129 S. Ct. at 1949. We look to the factual

allegations he presented in support of his legal conclusions. See id. at 1950. On review,

we conclude that his allegations, rife with suppositions (he even uses the word “guess” in

presenting one aspect of his claim) and lacking in specificity, are simply not plausible. 

The facts he pleads, even construed liberally, do not allow us to infer more than the mere

possibility of misconduct, which does not show us that he is entitled to relief. See id. at

1950. 

The District Court, in dismissing Twillie’s complaint, did not abuse its discretion

in denying leave to amend because an amendment would have been futile. See Grayson

v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). As the District Court stated,

Twillie could not amend his claim to state a claim under Bivens against the F.B.I. because
a claim against the F.B.I. cannot be made under Bivens. See supra. Furthermore, it is not

apparent how Twillie could transform his implausible claims into plausible claims. To

the extent that Twillie makes us aware, through his informal brief, of claims that he

would have wanted to present in an amendment, we note that those claims are similarly

speculative and implausible. 

Furthermore, the District Court did not abuse its discretion in denying Twillie’s

motion for reconsideration because the one-sentence “claim” did not serve “to correct

manifest errors of law or fact or to present newly discovered evidence.” Harsco Corp. v.

Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). 

In short, the District Court properly dismissed Twillie’s complaint, denied leave to

amend, and denied Twillie’s subsequent motion for reconsideration. Furthermore, there

is no substantial question presented on appeal. Accordingly, we grant the Appellees’

motion for summary action, and we will summarily affirm the District Court’s judgment.