UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 17-440 (TJK) SHAPAT NABAYA, Plaintiff , v. JESSICA D. ABER et al. , Defendants

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MEMORANDUM OPINION Plaintiff Shapat Nabaya, proceeding pro se , has filed the instant Bivens action, naming as defendants the following individu als: (1) Assistant U.S. Attorn eys (“AUSAs”) Jessica Aber and Gabrielle Michalak, U.S. Distric t Court Judge Hannah Lauck, U.S . Magistrate Judge David Novak, and U.S. Probation Officer T anya L. Smith (collectively, the “Federal Defendants”); and (2) Federal Public Defenders J oseph Camden and Mary Maguire (co llectively, the “FPD Defendants,” and together with the Federal Defendants, the “Def endants”). ECF No. 1 (“Compl.”); ECF No. 4 (“Am. Compl.”). Nabaya, who has previously filed lawsuits using the name NormanAbbott, is a serial filer with a history of bringing meritl ess cases, in this court and o thers, against public officials. See,

e.g. , United States v. Nabaya , No. 3:14-cv-835 (HEH), 2015 WL 300499 (E.D. Va. Jan. 22, 2015); Nabaya v. Dudeck , 38 F. Supp. 3d 86 (D.D.C. 2014); Abbott v. Trant , No. 09-cv-2337, 2009 WL 4899214 (D.D.C. Dec. 9, 2009) . In January 2015, based on Nabaya’s “historically meritless” litigation against the IRS, a federal judge in the E astern District of Virgnia permanently enjoined him from f iling tax lawsuits in any federa l court without first seeking leave to do so. See Nabaya , 2015 WL 300499, at *1, *3.2 While there are, unfortunately, some people like Nabaya who abu se our country’s legal system in this way, he has earne d the unusual distinction of be ing convicted for it. A few months before filing this lawsuit, Nabaya was indicted in the Eastern District of Virginia for his “ pro se legal crusade” against an IRS Revenue Officer known as Wally St ark, in the course of which he filed multiple vexatious and harassing lawsuits against Stark i n state and federal court. See Superseding Indictment, United States v. Nabaya , No. 3:17-cr-03 (E.D. Va. May 15, 2017) (“E.D. Va. Dkt.”), ECF No. 86-1 at 1. Even as he faced criminal liab ility for his history of vexatiou s litigation, Nabaya filed numerous frivolous motions that represented, in the words of th e judge presiding over his case, a “reckless abuse of procedure.” United States v. Nabaya , No. 3:17-cr-03, 2017 WL 3880660, at *1 (E.D. Va. Sept. 5, 2017), writ denied , 706 F. App’x 127 (4th Cir. 2017) . In October 2017, Nabaya was convicted of Retalia ting Against an Officer by False Claim, 18 U.S.C. § 1521, and making a False Statement in Bankruptcy, 18 U.S.C. § 152(3). See Judgment in a Criminal Case, E.D. Va. Dkt., ECF No. 306. In F ebruary 2018, he was sentenced to 71 months in fed eral prison. Id. at 2. This lawsuit arises from those criminal proceedings. The Defen dants are various personnel—judges, prosecutors, a probation officer, and defense attorneys—who took part in them. Before the Court are motions to dismiss by the Federal D efendants, ECF No. 12, and by the FPD Defendants, ECF N o. 6. Although it was not timely file d, the Court will consider Nabaya’s opposition to the motions to dismiss. See ECF No. 21 (“Opp.”). Also before the Court are Nabaya’s motions to amend hi s complaint. In the first, he seeks to add Stark as a defendant. ECF No. 26 (“1st Mot. Am.”). I n the second, he seeks to add AU SA Scott Sroka, who represents the Federal Defendants in this case, as a defendant as well. E CF No. 29 (“2d Mot. Am.”). For3 the reasons set forth below, the Court will grant the Defendant s’ motions to dismiss because the Court lacks personal jurisdiction over them, and deny Nabaya’s motions to amend his complaint. Analysis A. Motions to Dismiss “Because Bivens suits are suits against govern ment officials in their individu al, rather than their official, capacities, personal jurisdiction over the individual defendants is necessary to maintain a Bivens claim.” Deutsch v DOJ , 881 F. Supp. 49, 52 (D.D.C. 1995), aff’d , 93 F.3d 986 (D.C. Cir. 1996). “When personal jurisdiction is challenged un der Rule 12(b)(2), the plaintiff bears the burden of establishing a factual basis for the Court’ s exercise of personal jurisdiction over each defendant.” Chandler v. Stover , 211 F. Supp. 3d 289, 296 (D.D.C. 2016) (citing Crane v. N.Y. Zoological Soc’y , 894 F.2d 454, 456 (D.C. Cir. 1990)). The plaintiff “must mak e a prima facie showing of the pertinent jurisdictional facts.” First Chi. Int’l v. United Exch. Co. , 836 F.2d 1375, 1378 (D.C. Cir. 1988). Although a pro se plaintiff’s complaint must be “liberally construed,” he is “not freed from the requirement to plead an a dequate jurisdictional basis for [his] claims.” McDaniel v. FEDITC LLC , 825 F. Supp. 2d 157, 160 (D.D.C. 2011) (quoting Kurtz v. United States , 779 F. Supp. 2d 50, 51 (D.D.C. 2011)). “Federal courts ordinarily follow state law in determining the bounds of their jurisdiction over persons.” Daimler AG v. Bauman , 571 U.S. 117, 134 (2014) (citing Fed. R. Civ. P. 4(k)(1)(A)). In this Circuit, c ourts look to District of Colum bia law to determine whether personal jurisdiction may be exercised. Chandler , 211 F. Supp. 3d at 296 (citing United States v.
Ferrara , 54 F.3d 825, 828 (D.C. Cir. 1995)). Under the District of Co lumbia’s generaljurisdiction statute, a court may exercise general jurisdictionover a defendant “domiciled in” the District of Columbia. D.C. Code § 13-422. Under the District of Columbia’s long-arm statute, a court may exercise specific jurisdiction over a defendant if hi s actions fall within one of seven4 enumerated categories, such as “transacting any business in the District of Columbia,” “causing tortious injury in the Distric t of Columbia by an act or omissi on in the District of Columbia,” or “causing tortious injury in the D istrict of Columbia by an act or omission outside the District of Columbia if [the defendant] re gularly does or solicits business , engages in any other persistent course of conduct, or derives s ubstantial reve nue from goods us ed or consumed, or services rendered, in the District of Co lumbia.” D.C. Code § 13-423(a)( 1), (3)-(4). In a ddition, specific jurisdiction is proper only if the plainti ff’s claim “arise[s]” from the defendant’s alleged actions. Id. § 13-423(a). The Court concludes that it does not have personal jurisdictionover any of the Defendants, under either statute . Nabaya has not alleged any f acts showing that any Defendant lives in or maintains his or her principal place of business in the District of Col umbia; all appear to work in Virginia. See Compl.; Am. Compl.; Opp. Moreove r, he has not pointed to any f act that suggests that any Defendant ’s alleged conduct occurred in or had any effect in the District of Columbia. See Compl.; Am. Compl.; Opp. In fact, a ll of the Defendants’ alleg ed conduct appears to have occurred in Virgi nia. Nabaya’s claim is that h e was unlawfully prosecuted—but that happened in the Easter n District of Virginia. See Compl.; Am. Compl.; Opp. Therefore, the Court lacks personal jurisdicti on over all the Defendants, and the Complaint against them must be dismissed. 1

1 The Complaint must also be dismissed because the District of C olumbia is not a proper venue for this action. A plaintiff may file suit against an “officer or employee of the United States . . . in any judicial distri ct in which (A) a defendant in the actionresides, (B) a subs tantial part of the events or omissions giving rise to the claim occurred, or a sub stantial part of property that is the subject of the action is situate d, or (C) the plaintiff resides if no real property i s involved in the action.” 28 U.S.C. § 1391(e)(1). B ut the Complaint is devoid of facts that w ould justify venue under any of these avenues. As al ready discussed, Nabaya has n ot alleged that any Defendant resides in the District of Colum bia, or that Defendants’ allege d conduct occurred in the District5 B. Motions to Amend Complaint Under Federal Rule of Civil Procedure 15(a)(2), if a party may no longer amend his pleading as of right, then he “ma y amend [his] pleading only wi th the opposing party’s written consent or the court’s leave,” and “[t]he court should freely g ive leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). However , “[c]ourts may deny a motionto amend a complaint as futile . . . if the proposed claim would not survive a motion to dismi ss.” Williams v. Lew , 819 F.3d 466, 471 (D.C. Cir. 2016) (second alte ration in original) (quot ing James Madison Ltd. ex rel. Hecht v. Ludwig , 82 F.3d 1085, 1099 (D.C. Cir. 1996)). For reasons stated bel ow, the Court will deny Nabaya’s motions to amend his complaint because such amend ments would be futile. In his first motion to amend, Naba ya seeks to add Stark as a de fendant, but does not allege any conceivable cause of action against him. See 1st Mot. Am. at 1. Regardless, Nabaya asserts no factual basis upon whi ch the Court may exercise pers onal jurisdiction over Stark. See id. There is no indication that Star k resides in or maintains his principal place of business in the District of Columbia, or that St ark’s alleged act ions are conne cted or linked to t he District of Columbia. Id. Because adding Stark as a defendant would not save Nabaya’s com plaint from dismissal under Rule 12(b)(2), h is first proposed amendment is futile. In his second motion to amend, Nabaya seeks to add Sroka, who r epresents the Federal Defendants in this case, as a defendant. See 2d Mot. Am. at 1. This pr oposed amendment is futile because Nabaya’s claims against Sroka would not survive a Rule 12(b)(6) motion to dismiss, for two reasons. First, Nabaya alleges that Sroka is “committing fraud on the Co urt by not filing his oath of office” with the Court. 2d Mot . Am. at 1. However, it is w ell established—as explained in

of Columbia. In addition, he has not alleged that he himself r esides in the District of Columbia. See Compl.; Am. Compl.; Opp.6 case law arising from prior li tigation brought by Nabaya—that “ there is no aut hority requiring that attorneys representing the United States file an oath of o ffice with the Court.” Nabaya , 38 F. Supp. 3d at 94; see also id. at 94 n.5 (noting that 5 U.S.C . § 2906 requires only that the Department of Justice retain acopy of its employees’ oath of o ffice). Moreover, the statutes that Nabaya cites for this propositi on are inapposite: (1) 5 U.S.C. § 3331 requires certain appointees to take an oath of office but doe s not require the filing of an y oath with any court; (2) 18 U.S.C. § 1918 is a criminal statute prohib iting federal employees from acts of disloyalty; and (3) 18 U.S.C. § 7333 does not exist. See 2d Mot. Am. at 1. Thus, Nabaya’s assertion that Sroka failed to file his oath with the Court is not a cognizable claim. Second, Nabaya alleges that Sroka , in representin g the Federal Defendants, is “supporting racial discrimination and fraud” in violation of the Fifth and Fourteenth Amendments to the Constitution. 2d Mot. Am. at 1-2. H owever, Sroka is a governm ent attorney who i s “entitled to absolute immunity with regard t o [his] actions in carrying out [his] role in the judicial process.” Simon v. Bickell , 737 F. Supp. 2d 10, 16 (D.D.C. 2010) (collecting cases). “Su ch immunity attaches when the government atto rney acts as an ‘advocate’ within the scope of [his] duties.” Id. (quoting Gray v. Bell , 712 F.2d 490, 499 (D.C. Cir. 1983)); see also Ruiz Rivera v. Holder , 666 F. Supp. 2d 82, 94-95 (D.D.C. 2009) ( finding that governmen t attorneys defending a federal agency were entitled to absolute immunity for the manner in whi ch they presented evidence and conveyed their arguments—conduct that was “plainly advocatory i n nature” and of the type that “standard judicial procedures a re meant to address”). Here, Nabaya’s allegations relate directly to Sroka’s advocacy in this case on behalf of the Federal Defen dants, see 2d Mot. Am. at 1-2, which clearly falls within the s cope of Sroka’s duties as a gov ernment attorney. Thus, Sroka is entitled to absolute immunity with respect to Nabaya’s constitu tional claims.7 Finally, Nabaya’s bad faith in filing these motions to amend p rovides another, independent ground for denying them. See, e.g. , Bode & Grenier, LLP v. Knight , 808 F.3d 852, 860 (D.C. Cir. 2015). The proposed amendments to the Complaintare simply the latest examples of Nabaya’s misguided efforts to sue virtually every p ublic official he thinks has wronged him, including Sroka (hi s opposing counsel in this case ) and Stark (the previous target of his vexatious litigation, whi ch led to his present confineme nt). “[I]n light of Plaintiff’s extensive litigation history, i n this district and others, and the frivolous nature of certain allegations, the Court declines to afford Plaintiff leave to am end.” Papadopoulos v. Amaker , No. 12-cv-3608 (DLI) (RLM), 2013 WL 3226757, at *5 (E.D.N.Y. June 2 5, 2013) (citing Gianetti v. Blue Cross & Blue Shield of Ct., Inc. , 351 F. App’x 520, 522 (2d Cir. 2009)); see also In re Sindram , 464 B.R. 495, 496-97 (D.D.C. 2011) (denial of leave to amend in light of “extensive history as a serial filer”). Conclusion For the foregoing reasons, the Court will DENY Nabaya’s motions to amend his complaint, ECF Nos. 26, 29, and GRANT both the Federal Defendants’ and the FPD Defendants’ motions to dismiss, ECF Nos. 6, 12, in a separate o rder. In addition, because the action is dismissed, the Court will deny as moot the other outs tanding motions on the docket.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: March 31, 2018