Case 1:06-cv-00044-GH Document 15 Filed 01/19/2007 Page 1 of 2

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

DON HAMRICK )
)
Plaintiff )
)
vs. ) No. 1:06CV00044 GH
)
PRESIDENT GEORGE W. BUSH; )
MICHAEL CHERTOFF )
MICHAEL PRENDERGAST )
ADMIRAL THOMAS H. COLLINS )
JUDGE REGGIE B. WALTON )
JUDGE ELLEN SEGAL HUVELLE )
DENNIS BARGHAAN )
HEATHER GRAHAM-OLIVER )
)
Defendants )

MOTION TO DISMISS

Comes now the defendants President George W. Bush, Michael Chertoff,

Secretary, Department of Homeland Security; Michael Prendergast, Associate Director

for Security Operations, Department of Transportation; Admiral Thomas H. Collins,

Former Commandt, U.S. Coast Guard; Admiral Thad W. Allen, Commandt, U.S. Coast

Guard; Dennis Barghaan, Assistant U.S. Attorney, Eastern District of Virginia and

Heather Graham-Oliver, Assistant U.S. Attorney, District of Columbia, pursuant to Rule

12(b), Fed. R. Civ.P., and respectfully state:

The plaintiff’s complaint should be dismissed pursuant to Rule 12(b)(1), (2), (3)

and (6), as demonstrated by the Memorandum in Support of Defendants’ Motion to

 Case 1:06-cv-00044-GH Document 15 Filed 01/19/2007 Page 2 of 2

Dismiss filed contemporaneously herewith.

WHEREFORE, defendants respectfully pray that the Court enter an Order

dismissing the plaintiff’s Complaint.

Respectfully Submitted,

TIM GRIFFIN
United States Attorney

/s/ Richard M. Pence, Jr.

RICHARD M. PENCE, JR., AR BAR 69059

Assistant U.S. Attorney
P.O. Box 1229
Little Rock, Arkansas 72203
(501)340-2600

CERTIFICATE OF SERVICE

I, Richard M. Pence, Jr., do hereby certify that have served a copy of the foregoing
upon the plaintiff by U.S. Mail, postage prepaid this 19th day of January, 2007.

Mr. Don Hamick

5860 Wilburn Road
Wilburn, AR 72179 /s/ Richard M. Pence, Jr.
________________________________
Richard M. Pence, Jr.

2
 Case 1:06-cv-00044-GH Document 16-1 Filed 01/19/2007 Page 1 of 16

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

DON HAMRICK )
)
Plaintiff )
)
vs. ) No. 1:06CV00044 GH
)
PRESIDENT GEORGE W. BUSH; )
MICHAEL CHERTOFF )
MICHAEL PRENDERGAST )
ADMIRAL THOMAS H. COLLINS )
JUDGE REGGIE B. WALTON )
JUDGE ELLEN SEGAL HUVELLE )
DENNIS BARGHAAN )
HEATHER GRAHAM-OLIVER )
)
Defendants )

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

I. Introduction

Plaintiff Don Hamrick is employed as a merchant seaman. He works on

commercial vessels. He alleges that his residence is Wilburn, Arkansas, within the

Eastern District of Arkansas. The U.S. Coast Guard has, to the extent authorized by

statute and regulation, oversight responsibility for the merchant marine. The Coast Guard

is authorized to issue identification cards (U.S. Merchant Mariner’s Document) to

merchant seamen. 46 U.S.C.§ 7302, 7303.

In January of 2002, Hamrick applied to the Coast Guard to have his identification

card endorsed “National Open Carry Handgun,” which, according to Hamrick, would
 Case 1:06-cv-00044-GH Document 16-1 Filed 01/19/2007 Page 2 of 16

allow him to carry a handgun any place in the United States. The Coast Guard on

4/19/02, denied Hamrick’s request. Exh. 1. In response to email messages received from

Hamrick, the Coast Guard on 5/24/02 sent Hamrick a letter informing him that its

decision of 4/19/02 was the agency’s final agency decision and that no further action on

his request would be taken. Exh. 2. The Coast Guard’s decision was reiterated in letters

to Hamrick on 4/29/03 and 1/7/04. Exh. 3, 4.

On 7/18/02 Hamrick filed two pro se civil actions in the U.S. District Court for the

District of Columbia. Each case was assigned to District Judge Ellen S. Huvelle. The

defendants in Case No. 1:02-cv-01434-ESH were Captain J.P. Brusseau, the U.S. Coast

Guard officer who denied Hamrick’s request for a “National Open Carry Handgun”

endorsement on his Merchant Mariner’s identification card; Admiral Thomas H. Collins,

Commandant of the U.S. Coast Guard and Paul J. Pluta, Rear Admiral, U.S. Coast Guard.

The defendants were represented by Heather D. Graham-Oliver, Assistant U.S. Attorney,

U.S. Attorney’s Office, District of Columbia. Judge Huvelle granted the defendants’

Motion to Dismiss. Hamrick appealed to the Court of Appeals for the District of

Columbia. His appeal was dismissed on 1/3/06 for lack of prosecution. Exh. 5.

Case No. 1:02-cv-01435-ESH was a Petition for Writ of Mandamus, and related

declaratory and injunctive relief, against President George W. Bush, Captain Brusseau,

and other federal officials to compel the Coast Guard to approve Hamrick’s application

for a “National Open Carry Handgun” endorsement on his merchant marine document.

2
 Case 1:06-cv-00044-GH Document 16-1 Filed 01/19/2007 Page 3 of 16

By memorandum dated 10/9/02, Judge Huvelle concluded that the essential elements for a

Writ of Mandamus were lacking. Exh. 6. An Order was entered on 10/10/02 dismissing

Hamrick’s Petition for Writ of Mandamus with prejudice, and dismissing his motions for

injunctive and declaratory relief as moot. Exh. 7. The District of Columbia Circuit Court

of Appeals affirmed the District Court’s judgment, denied Hamrick’s Petition for

Rehearing and denied his Petition for Rehearing En Banc. Exh. 8. Hamrick’s Petition

for Certiorari was denied. 540 U.S. 940 (2004).

Hamrick filed another civil action in the District Court for the District of

Columbia, No. 1:03-cv-02160-RBW against President George W. Bush, and others,

alleging claims under the Racketeer Influenced and Corrupt Organizations Act (RICO),

18 U.S.C. §§ 1962, 1964(c), and various constitutional claims. The case was assigned to

U.S. District Judge Reggie B. Walton. In addition to President Bush, the defendants

included John Ashcroft, U.S. Attorney General; Thomas Ridge, Secretary of the

Department of Homeland Security; Admiral Collins; Captain Brusseau, and Judge

Huvelle. The defendants are represented Dennis C. Barghaan, Jr., Assistant U.S.

Attorney, Eastern District of Virginia, who was appointed special attorney to represent

the defendants.

On 8/16/04 the District Court granted the defendants’ Motion to Dismiss. Judge

Walton found that Hamrick’s suit was subject to dismissal because he had not responded

to the defendant’s Motion to Dismiss. In addition, the District Court decided that the

3
 Case 1:06-cv-00044-GH Document 16-1 Filed 01/19/2007 Page 4 of 16

judicial defendants were not subject to suit because of absolute immunity, the government

had not waived its sovereign immunity for RICO claims, and the remaining claims were

barred by res judicata (claim preclusion) because of Judge Huvelle’s judgment in case no.

1:02-cv-01434-ESH. Exh. 9.

On appeal, the District of Columbia Circuit Court granted the defendants’ Motion

for Summary affirmance, except as to Hamrick’s Second Amendment claims against the

non-judicial defendants, which were remanded for further proceedings. The Circuit Court

said, in an unpublished order, that Hamrick had filed an opposition to the defendant’s

motion to dismiss, and further, his Second Amendment claims were not barred by res

judicata. The Court did not address the merits of Hamrick’s Second Amendment claims.

2006 WL 1524593 (D.C. Cir. 2006), copy attached as Exh. 10.

After remand, Hamrick filed a motion to transfer the case to the U.S. District

Court, Eastern District of Arkansas, which Judge Walton denied without prejudice.

Hamrick on 8/24/06 filed a motion to dismiss his remaining claims without prejudice.

The defendants filed a response acknowledging that, since they had neither filed an

answer to the complaint nor filed a motion for summary judgment, Hamrick may obtain a

voluntary dismissal without prejudice pursuant to Rule 41(a)(1). Hamrick’s motion to

dismiss without prejudice is still pending with the U.S. District Court, District of

Columbia, Case No. 1:03-cv-02160-RBW.

In the meantime, Michael Prendergast, Associate Director of Security Operations,

4
 Case 1:06-cv-00044-GH Document 16-1 Filed 01/19/2007 Page 5 of 16

U.S. Department of Transportation, on 9/17/04 issued a Memorandum that Hamrick

should not be admitted to any of the DOT headquarters, FAA headquarters, or U.S. Coast

Guard headquarters buildings without obtaining prior approval from security. Exh. 11.

Hamrick had sent to Admiral Collins a document which showed an individual pointing a

handgun, with language which the Coast Guard regarded as threatening, and another

showing bullet holes in a target and blood dripping from the words “terrorists” and

“criminals.” Exh. 12, 13. Hamrick says that he did not receive the 9/17/04 Do Not

Admit Notice. A second Notice was issued by Prendergast on 8/11/06 when Hamrick

attempted to enter the Coast Guard headquarters building. The second notice provides

that, should Hamrick have any official business at the Coast Guard headquarters building,

he should notify the Office of Security and arrange for clearance to enter or access the

building. Exh. 14.

In the case at bar, Hamrick filed a 1,685 page pleading on 9/11/06, entitled “Civil

RICO Complaint.” Subsequently, two addendums to the Complaint were filed. The

defendants in the instant action are President George W. Bush; Michael Chertoff,

Secretary, U.S. Department of Homeland Security; Michael Prendergast, Associate

Director for Security Operations, U.S. Department of Transportation; Admiral Thomas H.

Collins,1 Commandant, U.S. Coast Guard; U.S. District Judge Reggie B. Walton; U.S.

1
Hamrick has pending a motion to substitute in place of Admiral Collins the current
Commandt of the U.S. Coast Guard, Admiral Thad W. Allen, who became Commandt on
5/25/06. Hamrick notes that “the Commandt is a defendant in its official capacity...”. Docket
No. 11.

5
 Case 1:06-cv-00044-GH Document 16-1 Filed 01/19/2007 Page 6 of 16

District Judge Ellen S. Huvelle; Assistant U.S. Attorney Dennis Barghaan; and Assistant

U.S. Attorney Heather Graham-Oliver.

The Complaint alleges that fraudulent, corrupt and illegal actions of the defendants

constitute a pattern of racketeering activity in violation of the civil RICO statute, 18

U.S.C. 1962, 1964(c). Compl. pp. 42-44, 75-82. The Coast Guard’s 4/19/02 decision

denying Hamrick’s request for a “National Open Carry Handgun” endorsement on his

Merchant Seaman’s document, Judge Huvelle’s decisions in case no. 1:02-cv-01434 and

no. 1:02-cv-01435, and Judge Walton’s decision in case no. 1:03-cv-02160 are “Rulings

under Judicial Review” in this action. Compl. 15.

Hamrick seeks to recover monetary damages in the sum of $9 million on his RICO

claim. Compl. p.41, 560. He also seeks, as a remedy to rectify the RICO violation, a

Writ of Mandamus compelling the Coast Guard to place a “National Open Carry

Handgun” endorsement on his merchant seaman’s document. Compl., pp. 42, 59, 75.

II.
Judicial Defendants

The judicial defendants, U.S. District Judges Ellen S. Huvelle and Reggie L.

Walton, have not contacted the U.S. Department of Justice regarding representation in

this matter. They may be unaware that they have been named as defendants in Hamrick’s

complaint pending in this district. Nevertheless, it is clear that all claims against them are

barred by judicial immunity. The allegations regarding their alleged unlawful conduct are

founded on the performance of their judicial duties in Hamrick’s lawsuits in the District

6
 Case 1:06-cv-00044-GH Document 16-1 Filed 01/19/2007 Page 7 of 16

Court for the District of Columbia. The Court should sua sponte dismiss all claims

against U.S. District Judges Huvelle and Walton because they have absolute immunity

from suit. Mireles v. Waco, 502 U.S. 9 (1991).

III.
Plaintiff’s Complaint Does Not Comply With Rule 8(a), Fed.R.Civ.P.

A claim for relief must contain (1) a short and plain statement of the jurisdictional

grounds, (2) a short and plain statement of the claim showing that the pleader is entitled

to relief, and (3) a demand for judgment for the relief the pleader seeks. Rule 8(a), Fed.

R. Civ. P.

Plaintiff’s 1,685 page complaint, plus addendums, mentions a civil RICO claim

and a claim for a Writ of Mandamus to compel the U.S. Coast Guard to place a “national

open carry handgun” endorsement on his merchant seaman’s identification card. To the

extent there possibly could be other legally distinct claims contained in the complaint,

they should be dismissed without prejudice for failure to comply with Rule 8(a).

IV.
The Court Lacks Subject Matter Jurisdiction Over Plaintiff’s RICO Claim

All of the alleged unlawful actions of the defendants were taken in the

performance of their official duties, or alleged failure to exercise their official duties.

Hamrick asserts in his complaint that he has the “right and duty to openly keep and bear

arms intrastate and interstate travel as a U.S. Seafarer [able seaman] and as a U.S. citizen

in addition to the right and duty to openly keep and bear arms aboard U.S. Vessels during

7
 Case 1:06-cv-00044-GH Document 16-1 Filed 01/19/2007 Page 8 of 16

heightened security needs [subject to the discretion of the master of the vessel under

maritime law]...”. (emphasis original)(Compl., p.75-76). Hamrick contends that ideally

all federal law enforcement agencies, the U.S. Congress and the Federal Judiciary would

become defendants, as well as their state-level counterparts in his RICO act claim.

Hamrick states:

I do not have the resources to bring such a pervasive lawsuit against the
United States and the 50 states on the allegation that the differing laws of
the 50 states places me at imminent risk of arrest and prosecution for
possession of a handgun out-of-state is the essence of racketeering activity
in violation of the Second, Ninth, Tenth, Thirteenth and Fourteenth
Amendments. Therefore, I am limited to bringing the civil RICO Act
lawsuit against those agencies of the United States who have directly
violated my rights.” Compl. p. 76.

Hamrick’s complaint further alleges: “The RICO Act can be employed against the

U.S. Government because the U.S. Government is a type of enterprise. Compl. p.57. He

asserts that, as a plaintiff with a civil RICO case, he is acting as a “private Attorney

General.” Compl., pp.45, 48, 57.

The above quoted allegations of the complaint indicate that this is an official

capacity lawsuit. There is no clear statement to the contrary. Absent a clear statement

that claims are being asserted against the government officials in their personal capacities,

a complaint is regarded as asserting claims against the defendants in their official

capacities. Johnson v. Outboard Marine Corporation, 172 F. 3d 531, 535 (8 th Cir. 1999);

Murphy v. State of Arkansas, 127 F. 3d 750, 754 (8 th Cir. 1997); Egerdahl v. Hibbing

8
 Case 1:06-cv-00044-GH Document 16-1 Filed 01/19/2007 Page 9 of 16

Community College, 72 F. 3d 615, 619-20 (8 th Cir. 1995). A complaint against a

government employee in his or her official capacity is the legal equivalent of a suit

against the government itself. Bankhead v. Knickrehm, 360 F. 3d 839, 844 (8 th Cir.

2004); Bufford v. Runyon, 160 F. 3d 1199, 1203 (8 th Cir. 1998).

To sue the United States, the plaintiff must show both a grant of subject matter

jurisdiction and a waiver of sovereign immunity. Taylor v. United States, 248 F. 3d 736,

737 (8 th Cir. 2001). Sovereign immunity is jurisdictional in nature. Absent a waiver,

sovereign immunity bars suits against the United States, its agencies and employees in

their official capacities. FDIC v. Meyer, 510 U.S. 471, 475 (1994); United States v.

Mitchell, 463 U.S. 206, 212 (1983); United States v. Sherwood, 312 U.S. 584, 586 (1941).

Waiver of sovereign immunity by the United States must be explicit. Dept. of the Army v.

Blue Fox, Inc., 525 U.S. 261 (1999); Lane v. Pena, 518 U.S. 187, 192 (1996).

The United States has not waived its sovereign immunity with respect to civil

actions brought against the United States under the RICO statute. Donahue v. FBI, 204 F.

Supp. 2d 169, 172 (D.Mass. 2002); Bell Consumers, Inc. v. Lay, 203 F. Supp. 2d 1202,

1208-09 (W.D. Wash. 2002), aff’d, 56 Fed. Appx. 381 (9 th Cir. 2003); Daddona v.

Gaudio, 156 F. Supp. 2d 153, 157 (D.Conn. 2000); Peia v. United States, 152 F. Supp. 2d

226, 234 (D.Conn. 2001); Deutsch v. Dept. of Justice, 881 F. Supp. 49, 55 (D.D.C.,

1995), aff’d, 93 F. 3d 986 (D.D.C. 1996). Consequently, Hamrick’s RICO Act claim

should be dismissed for lack of subject matter jurisdiction.

9
 Case 1:06-cv-00044-GH Document 16-1 Filed 01/19/2007 Page 10 of 16

V.
Plaintiff’s Claim for a Writ of Mandamus is Barred By Res Judicata,
And Even If It Were Not, Plaintiff Cannot Satisfy
the Essential Elements for a Writ of Mandamus

In his October, 2002 decision in case no. 1:02-cv-01435-ESH, Judge Huvelle

decided that Hamrick did not satisfy the requirements for a Writ of Mandamus to compel

the Coast Guard to approve his application for a “National Open Carry Handgun”

endorsement on his merchant marine document. Exh.6. The judgment of the District

Court was affirmed on appeal. Exh. 8. As to Hamrick’s claim in the instant case for a

Writ of Mandamus directing the U.S. Coast Guard to grant his request for the “National

Open Carry Handgun” endorsement, the decision in the previous action in the U.S.

District Court for the District of Columbia, Case no. 1:02-cv-01435-ESH, is res judicata.

Banks v. International Union v. Electronic Workers, 390 F. 3d 1049, 1052 (8 th Cir. 2005).

Even if res judicata were not applicable here, nevertheless, Hamrick cannot

demonstrate he is entitled to a Writ of Mandamus. Hamrick cannot establish a clear and

indisputable right to the relief he seeks, and the U.S. Coast Guard does not have a

nondiscretionary duty to honor his request. 28 U.S.C. 1361; In re Lane, 801 F. 2d 1040,

1042 (8 th Cir. 1986); Allied Chemical Corp. v. Daiflon, 449 U.S. 33, 34 (1980).

The Coast Guard’s refusal to place a “National Open Carry Handgun”

endorsement on his merchant seaman document does not violate the Second Amendment.

Hamrick has not been charged with any violation of federal firearm criminal statutes. He

10
 Case 1:06-cv-00044-GH Document 16-1 Filed 01/19/2007 Page 11 of 16

is not under investigation for any such criminal offense. The Coast Guard has not

confiscated any firearm owned by, or in the possession of, Hamrick. The endorsement

Hamrick is seeking would confer a privileged status and give him exemption from all

federal, state and local laws regarding possession of firearms and carrying firearms in

public.

The Coast Guard’s decision to deny the requested endorsement does not implicate

the Second Amendment, whatever its parameters. Even if it did, Hamrick does not have a

clear right to the relief he seeks, nor do any of the defendants have a clear duty to grant

the endorsement he wants. See the analysis of Judge Huvelle in her October, 2002

decision. Exh. 6. See also, Seegars v. Ashcroft, 292 F. Supp. 2d 201 (D.D.C. 2004),

rev’d in part on other grounds, 396 F. 3d 1248 (D.D.C. 2005), cert. den. 1265 Ct. 1187

(2006); Silveira v. Lockyer, 312 F. 3d 1052 (9 th Cir. 2002).

As to the alleged duty of the Coast Guard, it is simply authorized to endorse an

individual’s merchant marine document as an “able seaman” and to endorse the

classifications in which the seaman is qualified to serve. 46 U.S.C. § 7303, 7306. The

classifications of “able seaman” are: unlimited, limited, special, offshore, supply vessels,

sail, and fishing industry. 46 U.S.C. § 7306(b). There is no reference to an endorsement

to carry handguns.

11
 Case 1:06-cv-00044-GH Document 16-1 Filed 01/19/2007 Page 12 of 16

VI.
The Court Lacks Subject Matter Jurisdiction
Over Any Constitutional Claims

To the extent Hamrick’s complaint could be interpreted as asserting separate and

distinct claims to recover monetary damages based on constitutional violations, the Court

does not have subject matter jurisdiction over any such claims. Claims to recover

monetary damages for infringement of constitutional rights cannot be maintained against

the United States, its agencies, and its employees acting in their official capacities.

F.D.I.C. v. Meyer, 510 U.S. 471, 475-78, 484-86 (1994); Buford v. Runyon, 160 F. 3d

1199, 1203 (8 th Cir. 1998); Hartje v. Federal Trade Commission, 106 F. 3d 1406, 1408

(8 th Cir. 1997).

VII
Should the Complaint be Construed to Assert
Claims Against the Defendants In Their Individual Capacities,
such Claims are Barred for Multiple Reasons

As discussed in IV above, this is an official capacity lawsuit. Even if the

complaint did assert any claims against the defendants in their personal capacities, such

claims would be barred for numerous reasons.

A. Lack of Personal Jurisdiction

The Complaint does not make a prima facie showing that the Court has personal

jurisdiction over any of the defendants. Dever v. Hentzen Coatings, Inc., 380 F. 3d 1070,

1072-73 (8 th Cir. 2004). The defendants, none of whom are residents of, or employed in,

the State of Arkansas, do not have the necessary minimum contacts to satisfy due process

12
 Case 1:06-cv-00044-GH Document 16-1 Filed 01/19/2007 Page 13 of 16

requirements. Dever, 380 F. 3d 1073; Anderson v. Dassault Aviation, 361 F. 3d 449, 451

(8 th Cir. 2004), cert denied, 543 U.S. 1015; Ferrell v. West Bend Mutual Insurance Co.,

393 F. 3d 786, 790 (8 th Cir. 2005); Capital Equipment, Inc. v. CNH America, LLC, 394 F.

Supp. 2d 1054, 1055 (E.D. Ark. 2005)[opinion by Judge Eisele].

B. Lack of Venue

Hamrick cannot rely on 28 U.S.C. 1391(e) for any personal capacity claim against

the defendants. That venue statute pertains to civil actions against officers of the United

States acting in their official capacity. It does not apply to claims to recover monetary

damages from federal officials in their individual capacities. Stafford v. Briggs, 444 U.S.

527 (1980); Borntrager v. Stevas, 772 F. 2d 419 (8 th Cir. 1985); Cameron v. Thornburgh,

983 F. 2d 253, 256 (D.C.C., 1993). The applicable venue provision would be § 1391(a)

or § 1391(b) of Title 28, U.S. Code. Neither of those provisions would allow venue in the

Eastern District of Arkansas in this case.

C. Principles of Respondeat Superior are not Applicable

The defendants President Bush, Secretary Chertoff and Admiral Collins, and his

successor, had no personal involvement in the alleged unlawful actions mentioned in the

complaint. A claim to recover monetary damages for constitutional violations cannot be

based on Respondeat Superior or agency principles. Bufford, 160 F. 3d 1203(n)7;

Estate of Rosenberg v. Crandell, 56 F. 3d 35, 37 (8 th Cir. 1985). Similarly, personal

participation in the affairs of the alleged enterprise is a prerequisite for RICO civil

13
 Case 1:06-cv-00044-GH Document 16-1 Filed 01/19/2007 Page 14 of 16

liability. Brower v. Rattensperger, Hughes & Co., 199 F. 3d 961, 964 (7 th Cir. 2000);

Titan Inter., Inc. v. Becker, 189 F. Supp. 2d 817, 823 (C.D. Ill. 2001); Reeves v. Earnst &

Young, 507 U.S. 170, 179 (1993).

D. The Essential Elements of a Civil RICO Claim are Lacking

To establish a Civil RICO claim, a plaintiff must show, inter alia, the existence of

an enterprise, the defendant participated in the conduct of the enterprises’ affairs and such

participation was through a pattern of racketeering activity. Sedima, S.P.R.L. v. Imrex

Co., 473 U.S. 479, 496 (1985); Danielson v. Burnside-Ott Aviation Training Center, Inc.,

941 F. 2d 1220, 1231 (D.C.C. 1991); Regency Communications, Inc. v. Cleartel

Communications, Inc., 304 F. Supp. 2d 1, 9 (D.C.C., 2004). The term “racketeering

activity” refers to criminal offenses, or a threat of continued criminal activity. 18 U.S.C.

1961(1); H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 232 (1989).

The defendants who had any personal involvement in the actions complained of

(defendant’s Michael Prendergast, Associate Director for Security Operations, U.S.

Department of Transportation, U.S. District Judges Huvelle and Walton and Assistant

U.S. Attorneys Barghaan and Graham-Oliver) were performing their official duties of

office, although not in a manner to Hamrick’s satisfaction. Their conduct does not, as a

matter of law, constitute an “enterprise,” nor a “pattern of racketeering activity,” for

purposes of a RICO claim.

E. The defendants have absolute or qualified immunity from suit.

14
 Case 1:06-cv-00044-GH Document 16-1 Filed 01/19/2007 Page 15 of 16

As discussed in part II above, the judicial defendants have absolute immunity.

Assistant U.S. Attorneys Barghaan and Graham-Oliver, likewise, have absolute immunity

for their actions in defending the federal officials who were defendants in Hamrick’s

lawsuits in the District Court for the District of Columbia. Burns v. Reed, 500 U.S. 478,

492 (1991); Imbler v. Pachtman, 424 U.S. 409, 431 (1976); Dunham v. Wadley, 195 F. 3d

1007, 1010-1011 (8 th Cir. 2000). President Bush is entitled to absolute immunity.

Clinton v. Jones, 520 U.S. 681, 693-94 (1997). The other defendants, at a minimum,

would be entitled to qualified immunity, which would shield them from liability for their

conduct that does not violate a clearly established statutory or constitutional right which a

reasonable person would be expected to have known. Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982); Bankhead, 360 F. 3d 843; Omni v. Behavioral Health v. Miller, 285 F.

3d 646, 651 (8 th Cir. 2002). Application of immunity to a particular case presents a

question of law. Swenson v. Trickey, 995 F. 2d 132, 133 (8 th Cir. 1993).

VIII.
Any Claims Not Dismissed Should Be Transferred to
the U.S. District Court for the District of Columbia

If, after this Court rules in the case at bar, there are any remaining claims not

dismissed, this case should be transferred to the U.S. District Court for the District of

Columbia. Pursuant to 28 U.S.C. § 1404(a), the District Courts have discretion to transfer

a civil case to any other U.S. District Court where the action could have been brought.

Section 1404(a) provides: “For the convenience of the parties and witnesses, in the

15
 Case 1:06-cv-00044-GH Document 16-1 Filed 01/19/2007 Page 16 of 16

interest of justice, a District Court may transfer any civil action to any other district or

division where it might have been brought.” 28 U.S.C. §1404(a).

The U.S. District Court for the District of Columbia has extensive experience with

the same or similar allegations as those asserted by Hamrick in his present action pending

in the Eastern District of Arkansas. The defendants are employed by federal judicial or

executive agencies that have offices in or near the District of Columbia. For the

convenience of the parties and witnesses, and in the interest of justice, if there are any

claims remaining after the Court rules on the defendants’ motion to dismiss, this action

should be transferred to the District Court for the District of Columbia.

Respectfully Submitted,

TIM GRIFFIN
United States Attorney

/s/ Richard M. Pence, Jr.

RICHARD M. PENCE, JR., AR BAR 69059

Assistant U.S. Attorney
P.O. Box 1229
Little Rock, Arkansas 72203
(501)340-2600

CERTIFICATE OF SERVICE

I, Richard M. Pence, Jr., do hereby certify that have served a copy of the foregoing
upon the plaintiff by U.S. Mail, postage prepaid this 19th day of January, 2007.

Mr. Don Hamick

5860 Wilburn Road
Wilburn, AR 72179 /s/ Richard M. Pence, Jr.
________________________________
Richard M. Pence, Jr.

16
Case 1:06-cv-00044-GH Document 16-2 Filed 01/19/2007 Page 1 of 1
Case 1:06-cv-00044-GH Document 16-3 Filed 01/19/2007 Page 1 of 2
Case 1:06-cv-00044-GH Document 16-3 Filed 01/19/2007 Page 2 of 2
Case 1:06-cv-00044-GH Document 16-4 Filed 01/19/2007 Page 1 of 1
Case 1:06-cv-00044-GH Document 16-5 Filed 01/19/2007 Page 1 of 1
Case 1:06-cv-00044-GH Document 16-6 Filed 01/19/2007 Page 1 of 4
Case 1:06-cv-00044-GH Document 16-6 Filed 01/19/2007 Page 2 of 4
Case 1:06-cv-00044-GH Document 16-6 Filed 01/19/2007 Page 3 of 4
Case 1:06-cv-00044-GH Document 16-6 Filed 01/19/2007 Page 4 of 4
Case 1:06-cv-00044-GH Document 16-7 Filed 01/19/2007 Page 1 of 4
Case 1:06-cv-00044-GH Document 16-7 Filed 01/19/2007 Page 2 of 4
Case 1:06-cv-00044-GH Document 16-7 Filed 01/19/2007 Page 3 of 4
Case 1:06-cv-00044-GH Document 16-7 Filed 01/19/2007 Page 4 of 4
Case 1:06-cv-00044-GH Document 16-8 Filed 01/19/2007 Page 1 of 1
Case 1:06-cv-00044-GH Document 16-9 Filed 01/19/2007 Page 1 of 2
Case 1:06-cv-00044-GH Document 16-9 Filed 01/19/2007 Page 2 of 2
Case 1:06-cv-00044-GH Document 16-10 Filed 01/19/2007 Page 1 of 12
Case 1:06-cv-00044-GH Document 16-10 Filed 01/19/2007 Page 2 of 12
Case 1:06-cv-00044-GH Document 16-10 Filed 01/19/2007 Page 3 of 12
Case 1:06-cv-00044-GH Document 16-10 Filed 01/19/2007 Page 4 of 12
Case 1:06-cv-00044-GH Document 16-10 Filed 01/19/2007 Page 5 of 12
Case 1:06-cv-00044-GH Document 16-10 Filed 01/19/2007 Page 6 of 12
Case 1:06-cv-00044-GH Document 16-10 Filed 01/19/2007 Page 7 of 12
Case 1:06-cv-00044-GH Document 16-10 Filed 01/19/2007 Page 8 of 12
Case 1:06-cv-00044-GH Document 16-10 Filed 01/19/2007 Page 9 of 12
Case 1:06-cv-00044-GH Document 16-10 Filed 01/19/2007 Page 10 of 12
Case 1:06-cv-00044-GH Document 16-10 Filed 01/19/2007 Page 11 of 12
Case 1:06-cv-00044-GH Document 16-10 Filed 01/19/2007 Page 12 of 12
Case 1:06-cv-00044-GH Document 16-11 Filed 01/19/2007 Page 1 of 2
Case 1:06-cv-00044-GH Document 16-11 Filed 01/19/2007 Page 2 of 2
Case 1:06-cv-00044-GH Document 16-12 Filed 01/19/2007 Page 1 of 1
Case 1:06-cv-00044-GH Document 16-13 Filed 01/19/2007 Page 1 of 1
Case 1:06-cv-00044-GH Document 16-14 Filed 01/19/2007 Page 1 of 1
Case 1:06-cv-00044-GH Document 16-15 Filed 01/19/2007 Page 1 of 1