Granger v. Federal Bureau of Investigations

• Court: District Court, W.D. Washington
• Decided: January 21, 2025
• Docket: 2:24-cv-01946
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 LONI NICOLE GRANGER et al., CASE NO. 2:24-cv-01946-LK 11 Plaintiff, ORDER DENYING MOTIONS 12 v. AND DISMISSING COMPLAINT 13 FEDERAL BUREAU OF INVESTIGATION et al., 14 Defendants. 15 16 This matter comes before the Court sua sponte. On December 4, 2024, United States 17 Magistrate Judge Michelle L. Peterson granted pro se Plaintiffs Loni Nicole Granger and Casey 18 Michael Granger’s application to proceed in forma pauperis (“IFP”) and their complaint was 19 posted on the docket. Dkt. Nos. 4–5. Summons have not yet been issued. Having reviewed the 20 complaint, the record, and the applicable law, the Court declines to issue summons and, for the 21 reasons set forth below, dismisses Plaintiffs’ complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). 22 The Court also denies Plaintiffs’ motion for protection, motion for discovery, application for court- 23 appointed counsel, motion to seal, and motion to compel. Dkt. Nos. 6–7, 9–10, 12. 24 1 I. BACKGROUND 2 On December 4, 2024, Plaintiffs filed a pro se complaint in this Court against Defendants 3 Federal Bureau of Investigation (“FBI”) and Jacob Danesi, who is allegedly the Sheriff of 4 Galveston County, Texas. Dkt. No. 5 at 2. Plaintiffs bring a Section 1983 claim against Defendants,

5 asserting violations of 18 U.S.C. §§ 241 and 242. Id. at 5. Plaintiffs also purport to bring a Bivens 6 claim against the FBI. Id. at 5–6. 7 From what the Court can discern from Plaintiffs’ complaint, they appear to allege that 8 despite numerous requests, the FBI refused to provide assistance to them even though they claimed 9 (and continue to claim) that they are being threatened by certain individuals, including Danesi. 10 See, e.g., id. at 6, 10, 11. Plaintiffs allege that the events giving rise to their claims began in October 11 2019 and have continued to the present day, and occurred in several cities in Texas (including 12 Alvin, Santa Fe, La Marque, and Galveston), as well as in Seattle, Washington. Id. at 6. 13 After the Court granted their motions for leave to proceed in forma pauperis, Dkt. No. 4; 14 see also Dkt. Nos. 1–2, Plaintiffs filed several motions, including a motion for protection, a motion

15 for discovery (including a supplement), an application for court-appointed counsel, a motion to 16 seal, and motion to compel. Dkt. Nos. 6–10, 12. 17 II. DISCUSSION 18 A. Legal Standard 19 The Court must dismiss a case when the plaintiff is proceeding IFP “at any time” if it 20 determines that the complaint is frivolous, fails to state a claim on which relief may be granted, or 21 seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. 22 § 1915(e)(2)(B)(i)–(iii). The standard for determining whether a plaintiff has failed to state a claim 23 under Section 1915(e) is the same as the standard applied under Federal Rule of Civil Procedure

24 12(b)(6). Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Dismissal under Rule 1 12(b)(6) may be based on either the lack of a cognizable legal theory or the absence of sufficient 2 facts alleged under a cognizable legal theory. Shroyer v. New Cingular Wireless Servs., Inc., 622 3 F.3d 1035, 1041 (9th Cir. 2010). 4 Although the Court construes pro se complaints liberally, see Bernhardt v. Los Angeles

5 Cnty., 339 F.3d 920, 925 (9th Cir. 2003), such complaints must still include “(1) a short and plain 6 statement of the grounds for the court’s jurisdiction, . . . (2) a short and plain statement of the claim 7 showing that the pleader is entitled to relief; and (3) a demand for the relief sought[.]” Fed. R. Civ. 8 P. 8(a). A plaintiff’s pro se status does not excuse compliance with this bedrock requirement. See 9 Am. Ass’n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107–08 (9th Cir. 2000) 10 (explaining that the lenient pleading standard does not excuse a pro se litigant from meeting basic 11 pleading requirements); Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992) (although the court 12 has an obligation to liberally construe pro se pleadings, it “may not supply essential elements of 13 the claim that were not initially pled” (quoting Ivey v. Bd. of Regents of the Univ. of Alaska, 673 14 F.2d 266, 268 (9th Cir. 1982))). Rule 8(a)’s standard “does not require ‘detailed factual

15 allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me 16 accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 17 U.S. 544, 555 (2007)). 18 In addition, federal courts are courts of limited jurisdiction, and they “possess only that 19 power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 20 U.S. 375, 377 (1994). This means that the Court can only hear certain types of cases. Home Depot 21 U.S.A., Inc. v. Jackson, 587 U.S. 435, 438 (2019). The typical bases for federal jurisdiction are 22 established where (1) the complaint presents a federal question “arising under the Constitution, 23 laws, or treaties of the United States” or (2) where the parties are diverse (e.g., residents of different

24 states) and the amount in controversy exceeds $75,000. 28 U.S.C. §§ 1331, 1332. The Court must 1 dismiss the action if it “determines at any time that it lacks subject-matter jurisdiction” over a case. 2 Fed. R. Civ. P. 12(h)(3). The party asserting jurisdiction has the burden of establishing it. See 3 United States v. Orr Water Ditch Co., 600 F.3d 1152, 1157 (9th Cir. 2010). 4 B. Plaintiffs’ Complaint Fails to State a Federal Cause of Action

5 Plaintiffs filed their complaint using a form intended for alleged civil rights violations made 6 pursuant to 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 7 403 U.S. 388 (1971). Dkt. No. 5 at 1, 4–6. Because Plaintiffs indicate that they are bringing both a 8 Section 1983 action and a Bivens action, id. at 4–6, the Court assumes Plaintiffs are asserting 9 federal question jurisdiction. However, they have failed to establish jurisdiction under either 10 theory. See Taylor v. Lai, No. C13-1425-JLR, 2013 WL 6000068, at *3 (W.D. Wash. Nov. 12, 11 2013) (“The mere mention of 42 U.S.C. § 1983 and particular constitutional provisions does not 12 establish jurisdiction where the complaint on its face discloses the absence of an essential element 13 of such a claim.” (cleaned up)). 14 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

15 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 16 the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 17 487 U.S. 42, 48 (1988). The FBI is not “a person” susceptible of suit under Section 1983, so 18 Plaintiffs’ Section 1983 claim against the FBI is dismissed with prejudice. See Norman v. White 19 House, No. 22-CV-05154-JSC, 2022 WL 4468276, at *3 (N.D. Cal. Sept. 26, 2022). Plaintiffs do 20 not allege that Denesi was acting under color of state law, nor do they allege that he participated 21 in any deprivation of their constitutional rights. See, e.g., Jones v. Williams, 297 F.3d 930, 934 22 (9th Cir. 2002) (explaining that a plaintiff must allege that each defendant personally participated 23 in the conduct alleged to have violated his constitutional rights). Instead, Plaintiffs only allege that

24 he violated 18 U.S.C. §§ 241 and 242, which are criminal statutes. To the extent Plaintiffs are 1 attempting to institute criminal charges against Defendants, they cannot do so, as only a United 2 States Attorney can initiate a criminal prosecution in federal court. See Rhodes v. Robinson, 399 3 F. App'x 160, 165 (9th Cir. 2010) (citing Keenan v. McGrath, 328 F.2d 610, 611 (1st Cir. 1964) 4 (per curiam)). Such criminal law claims are dismissed with prejudice.

5 Plaintiffs’ Bivens claim is also without basis. “Bivens created a remedy for violations of 6 constitutional rights committed by federal officials acting in their individual capacities.” Consejo 7 de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007). 8 “[A] Bivens action can be maintained against a defendant in his or her individual capacity only, 9 and not in his or her official capacity.” Daly–Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.1987). 10 Thus, a plaintiff may not bring a Bivens claim against a federal agency such as the FBI. F.D.I.C. 11 v. Meyer, 510 U.S. 471, 484–85 (1994). Plaintiffs’ Bivens claim against the FBI is therefore 12 dismissed with prejudice. 13 Furthermore, to the extent the relief Plaintiffs seek is premised on the notion that the FBI 14 had a non-discretionary duty to help them, they have not identified a legal basis for such relief.

15 See DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 196–97 (1989) (“[T]he Due 16 Process Clauses generally confer no affirmative right to governmental aid, even where such aid 17 may be necessary to secure life, liberty, or property interests of which the government itself may 18 not deprive the individual”; accordingly, “a State’s failure to protect an individual against private 19 violence simply does not constitute a violation of the Due Process Clause.”); Piechowicz v. United 20 States, 885 F.2d 1207, 1214 n.9 (4th Cir. 1989) (holding that DeShaney “applies equally in a suit 21 against the United States, given the Supreme Court’s essentially identical interpretations of the 22 concept under the [Fifth and Fourteenth] [A]mendments”); see also Berkovitz by Berkovitz v. 23 United States, 486 U.S. 531, 536 (1988) (discussing when the discretionary function exception

24 bars a suit for tortious conduct against the government). 1 Plaintiffs’ complaint therefore fails to state either a Section 1983 claim or a Bivens claim. 2 Accordingly, the Court dismisses Plaintiffs’ complaint. 3 The Court is mindful that “[u]nless it is absolutely clear that no amendment can cure the 4 defect . . . a pro se litigant is entitled to notice of the complaint’s deficiencies and an opportunity

5 to amend prior to dismissal of the action.” Lucas v. Dep’t of Corrs., 66 F.3d 245, 248 (9th Cir. 6 1995). Because amendment may be possible with respect to certain claims, the Court grants leave 7 to file an amended complaint. However, this Order limits Plaintiffs to the filing of an amended 8 complaint that attempts to cure the specific deficiencies identified in this Order. They may not 9 reallege the claims that have been dismissed with prejudice against the FBI and Danesi. If Plaintiffs 10 choose to file an amended complaint, they are cautioned that they must clearly identify the basis 11 for this Court’s subject matter jurisdiction. They must also clearly identify the basis for venue in 12 the Western District of Washington. See 28 U.S.C. § 1391(b); see also, e.g., Adeyinka v. First Jud. 13 Dist. of Pa., No. 3:23-cv-01333-HZ, 2023 WL 6248840, at *2 (D. Or. Sept. 26, 2023). 14 Plaintiffs’ motions for protection and discovery, Dkt. Nos. 6–7, as well as their motion to

15 compel, Dkt. No. 12, are also dismissed as moot. 16 C. Plaintiffs’ Application for Court-Appointed Counsel is Denied 17 Plaintiffs also request that the Court appoint counsel to represent them because they “do 18 not know where to find or obtain the proper attorney” and do not have “time for the time frame of 19 12/30/2024.” Dkt. No. 9 at 2–3. These circumstances, however, do not entitle them to court- 20 appointed counsel. “Unlike in criminal cases that implicate the Sixth Amendment right to counsel, 21 civil litigants who cannot afford counsel are not constitutionally guaranteed the appointment of a 22 lawyer.” Adir Int’l, LLC v. Starr Indem. & Liab. Co., 994 F.3d 1032, 1039 (9th Cir. 2021). This is 23 true even for Section 1983 actions. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981).

24 1 The Court does have authority pursuant to 28 U.S.C. § 1915(e)(1) to “request” appointment 2 of counsel for litigants proceeding in forma pauperis in “exceptional circumstances.” Agyeman v. 3 Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). However, this statute “does not actually 4 authorize the court to force a lawyer to take a case.” Sifuentes v. Nautilus, Inc., No. C21-5613-

5 JLR, 2022 WL 1014963, at *1 (W.D. Wash. Apr. 5, 2022) (“Nor does the court have staff attorneys 6 standing by to represent pro se litigants.”); see also Mallard v. U.S. Dist. Court, 490 U.S. 296, 307 7 (1989) (Section 1915(e) does not authorize compulsory appointments); Dragasits v. Rucker, No. 8 18-CV-0512-WQH-AGS, 2021 WL 4710854, at *2 (S.D. Cal. Oct. 8, 2021) (“[T]he statutory 9 authority to recruit civil counsel” does not allow the Court to “force attorneys to represent an 10 indigent civil litigant.”). And the exceptional circumstances inquiry requires the Court to consider 11 “the likelihood of success on the merits as well as the ability of the petitioner to articulate his 12 claims pro se in light of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 13 952, 954 (9th Cir. 1986). Neither consideration is dispositive, and the Court must view them 14 together. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

15 Neither consideration weighs in Plaintiffs’ favor. First, the Court cannot weigh the merits 16 of their claims on the undeveloped, limited record before it. See, e.g., Sam v. Renton Sch. Dist., 17 No. C21-1363-RSM, 2021 WL 4952187, at *1 (W.D. Wash. Oct. 25, 2021) (“The Court cannot 18 conclude on this thin record whether these claims have a strong likelihood of success on the 19 merits.”). And Plaintiffs have not otherwise provided any compelling arguments or evidence that 20 this case is likely to succeed on the merits. See Ralls v. Facebook, No. C16-0007-JLR, 2016 WL 21 10591399, at *2 (W.D. Wash. Apr. 25, 2016). Second, this case does not appear to present the type 22 of legally or factually complex issues that would preclude Plaintiffs from adequately articulating 23 their claims pro se. “[A] litigant must meet a high bar to show that the legal issues involved are

24 sufficiently complex, and that he is therefore impeded in his ability to present his case.” Siglar v. 1 Hopkins, 822 F. App'x 610, 612 (9th Cir. 2020). As discussed above, Plaintiffs allege both a 2 Section 1983 and Bivens claim, neither of which are “exceptionally complex.” Cf. Agyeman, 390 3 F.3d at 1103–04. 4 D. Plaintiffs’ Motion to Seal Does Not Comply with Local Civil Rule 5(g)

5 Finally, Plaintiffs have filed a motion to seal the case, or “at least [their] written 6 statements.” Dkt. No. 10; see also Dkt. No. 5 at 9–19 (Plaintiffs’ “written statements”). Courts 7 have recognized a “general right to inspect and copy public records and documents, including 8 judicial records and documents.” Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 9 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). Accordingly, 10 when a district court considers a sealing request, “a strong presumption in favor of access is the 11 starting point.” Id. (cleaned up). This presumption, however, “is not absolute and can be overridden 12 given sufficiently compelling reasons for doing so.” Foltz v. State Farm Mut. Auto. Ins. Co., 331 13 F.3d 1122, 1135 (9th Cir. 2003) (citing San Jose Mercury News, Inc. v. U.S. Dist. Ct., 187 F.3d 14 1096, 1102 (9th Cir. 1999)).

15 The standard for determining whether to seal a record depends on the filing with which the 16 sealed record is associated and whether such filing is “more than tangentially related to the merits 17 of a case.” See Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 1092, 1098–1102 (9th Cir. 2016). 18 If the filing at issue is more than tangentially related to the merits of the case, the court must apply 19 the “compelling reasons” standard to the motion to seal. See id. If the filing is only tangentially 20 related to the merits, the party seeking to seal the records need only show “good cause.” See id. 21 Additionally, in the Western District of Washington, parties moving to seal documents 22 must comply with the procedures established by Local Civil Rule 5(g). Under that rule, the party 23 who designates a document confidential must provide a “specific statement of the applicable legal

24 standard and the reasons for keeping a document under seal, including an explanation of: (i) the 1 legitimate private or public interest that warrant the relief sought; (ii) the injury that will result if 2 the relief sought is not granted; and (iii) why a less restrictive alternative to the relief sought is not 3 sufficient.” LCR 5(g)(3)(B). 4 Here, Plaintiffs “[r]equest to have [their] case sealed or at least [their] written statements

5 sealed” for “[their] protection.” Dkt. No. 10 at 1. This conclusory explanation does not satisfy the 6 requirements of Local Civil Rule 5(g). Muñoz v. United States, 28 F.4th 973, 978 (9th Cir. 2022) 7 (pro se litigants “are subject to the same procedural requirements as other litigants”). 8 The Court therefore denies without prejudice Plaintiffs’ motion to seal. The Court reminds 9 Plaintiffs that materials to assist pro se litigants are available on the United States District Court 10 for the Western District of Washington’s website, including a Pro Se Guide to Filing Your Lawsuit 11 in Federal Court. https://www.wawd.uscourts.gov/representing-yourself-pro-se. Despite the 12 leeway afforded to them, pro se litigants must comply with case deadlines, the Federal Rules of 13 Civil Procedure, and the Western District of Washington’s Local Civil Rules, which can also be 14 found on the Western District of Washington’s website.

15 III. CONCLUSION 16 For the foregoing reasons, the Court DISMISSES Plaintiffs’ complaint, Dkt. No. 5, with 17 limited leave to amend as described above. The Court also DENIES Plaintiffs’ motion for 18 protection, motion for discovery, request for court-appointed counsel, motion to seal, and motion 19 to compel. Dkt. Nos. 6–7, 9–10, 12. Plaintiffs’ amended complaint, should they choose to file one, 20 must be legible and must provide a short and plain statement of the factual basis of Plaintiffs’ claim 21 as required by Federal Rule of Civil Procedure 8. A timely filed amended complaint operates as a 22 complete substitute for an original pleading. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 23 1992). For that reason, any amended complaint must clearly identify the defendant, the claim

24 asserted, the specific facts that Plaintiffs believe support the claim, and the specific relief 1 requested. If Plaintiffs do not file a proper amended complaint by February 11, 2025, this action 2 will be dismissed with prejudice. 3 Dated this 21st day of January, 2025. 4 A

5 Lauren King United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23