Guy v. US Department of Justice

Opinion

San Francisco Division KENNETH CARL GUY, Case No. 21-cv-02640-LB

Plaintiff, ORDER SCREENING COMPLAINT v. WITH LEAVE TO AMEND

U.S. DEPARTMENT OF JUSTICE, Re: ECF No. 1 Defendant. The plaintiff Kenneth Guy, who represents himself in this action and who is proceeding in forma pauperis, sued the United States Department of Justice (DOJ) because his former employer, Newsmax Media, allegedly obtained his personal information — from a local Sheriff’s office — contained in the Criminal Justice Information Systems, “which is maintained by the Department of Justice.” He claims that this was an unreasonable search and seizure under color of law, in violation of 42 U.S.C. § 1983, Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 399 (1971), and the Constitution (here, the Fourth Amendment).1 Before directing the United States Marshal to serve the defendant with the complaint, the court must screen it for minimal legal 1 Compl. – ECF No. 1 at 1 (¶ 2), 6–7 (¶¶ 23–25), 9 (¶ 29). Citations refer to material in the Electronic viability. 28 U.S.C. § 1915(e)(2)(B). The plaintiff did not plausibly plead a federal claim for several reasons, including the age of the alleged injury, the lack of involvement by any federal actors in the alleged wrongdoing, and his failure to plausibly plead venue or personal jurisdiction. In this order, the court identifies the complaint’s deficiencies and gives the plaintiff an opportunity to amend the complaint by May 18, 2021 to cure them. The plaintiff worked for Newsmax Media, where he “endure[d] months of endless harassment intent on forcing the Plaintiff to voluntarily terminate his own employment.”2 He “ended his employment relationship” with Newsmax in October 2014, allegedly had claims against them for employment discrimination (which “harmed the Plaintiff severely enough to be the cause of [a] foreclosure action” in Florida, where he cross-claimed against Newsmax), and settled his dispute with Newsmax for one month’s severance pay.3 “Newsmax Media Inc. should have included the Department of Justice in the Plaintiff’s employment settlement agreement, but they did not.”4 The basis for the DOJ’s liability is Newsmax’s alleged access to the plaintiff’s personal information (contained in the DOJ’s Criminal Justice Information Systems) that Newsmax allegedly obtained from an informant at a local Sheriff’s office: 24. In no coincidence, two managers at Newsmax Media Inc. discussed the “fact” that the CEO of Newsmax Media Inc., Chris Ruddy, has an informant at a local Sheriff’s office, that upon request, they provide to him any personal and/or classified information on anyone stored in the Criminal Justice Information Systems, which is maintained by the Department Of Justice. The two managers further discussed how information on the Plaintiff was provided to the CEO of Newsmax Media Inc., and while the specifics of that information was not disclosed in that conversation that the Plaintiff was clearly meant to overhear, that information would be and allegedly was enough to justify terminating the Plaintiff’s employment at Newsmax Media Inc. In that same conversation, one of the managers has commented on how Chris Ruddy had stated in that conversation that he would make looking up a potential employee’s classified CJIS information a standard hiring practice for every potential employee. 2 Id. at 3 (¶ 13). 3 Id. at 3–4 (¶¶ 10–18). . . . 26. An unreasonable search was made regarding the Plaintiff’s classified information maintained by the Department of Justice by a Department of Justice employee because the information provided, if any information was provided, was provided to a civilian in a civilian capacity for use by a private company.5 The plaintiff alleged that he “does not have a criminal record, and when he was an employee at Newsmax Media, Inc., he did not have any direct knowledge of any criminal investigation regarding the Plaintiff.”6 He also alleged that “he does have a criminal record, but the Plaintiff has been victimized by crimes executed by criminals claiming to use the alleged joinder by Newsmax Media Inc. and the Department of Justice regarding allegations made by a Newsmax Media Inc. employee that led to the termination of his employment at Newsmax Media Inc. as a means to fraudulently associate with that cause of action to either avoid arrest or delay prosecution in matters entirely unrelated to a possible unreasonable search allegedly made by a Department of Justice employee.”7 In the complaint, the plaintiff explains why he is filing this lawsuit: he tried to raise a Bivens claim as a result of actions by an employee of the state of Florida, learned that a Bivens claim lies only against a federal employee, and filed this lawsuit to eliminate any resulting ambiguity and for the sake of finality. 21. In the state case in Florida, the Plaintiff communicated his intention to seek a remedy for a Bivens wrong. However, a Bivens wrong can only be committed by a Federal employee. In the cross claim filed in that foreclosure case, the Plaintiff communicated his intention to seek a remedy for that Bivens wrong as a consequence of the actions of an employee of the State of Florida. For this reason, it is the intention of this complaint to eliminate any legal ambiguity that may have been caused by the Plaintiff’s legal naiveté. 22. Even though Newsmax Media Inc. has already settled their claims with the Plaintiff on all causes of action(s) that led to the Plaintiff’s termination of employment with Newsmax Media Inc., for the sake of finality, the Plaintiff files this Complaint with the intention of ending any possible controversy related to the alleged Bivens Wrong that, according to Newsmax Media Inc., led to the Plaintiff’s termination of employment with Newsmax Media Inc.8 5 Id. at 7–8 (¶¶ 24, 26). 6 Id. at 6 (¶ 23). 7 Id. at 8 (¶ 28). The complaint has one claim against the DOJ (styled a § 1983/Bivens claim) asserting a constitutional violation on the ground that the information from the DOJ Criminal Justice Information Systems, “if any information was provided, was provided to a civilian in a civilian capacity for use by a private company.” If classified or private information “is stored by law enforcement personnel for law enforcement purposes, the disclosure of that classified information to a civilian for use other than for a criminal investigation would be an unreasonable search of the Plaintiff’s classified information, causing harm to the Plaintiff, specifically in this instance, the loss of the Plaintiff’s job at Newsmax Media Inc.”9 He does not seek any monetary relief and requests Declaratory Relief from the Department of Justice: Instead, the Plaintiff seeks finality to be established on any civil claim and/or claims that the Plaintiff may have regarding the facts that led to the termination of his employment at Newsmax Media Inc. so that any individual victimizing the Plaintiff can no longer assert a fraudulent joinder with any cause of action related to the Department of Justice, claiming the joinder alleged by Newsmax Media Inc. as a means for any individual breaking the law against the Plaintiff to either avoid arrest or delay their prosecution.10 The plaintiff attaches eight exhibits to his complaint (numbered A through H and mostly related to the Florida lawsuit) to support the factual allegations in his complaint: (A) his answer to the foreclosure complaint; (B) his motion to add a missing party (presumably Newsmax) in the foreclosure action; (C) the results of a polygraph examination that he took (and passed) in August 2020; (D) a November–December 2014 Wells Fargo statement (reflecting an address in Florida) showing his receipt of the Newsmax severance payment; (E) his September 2017 motion to stay the Florida foreclosure proceedings to allow him to “seek[] a remedy for a Bivens wrong” based on allegations of misconduct (that he reported to the FBI) by Florida law-enforcement officers; (F) his notice of a hearing on his motion; (G) the judgment in favor of the mortgage company in the Florida foreclosure action; and (H) his motion to redact health-care information in this case.11 The questions and answers to the polygraph examination are as follows: (1) “Has extortion been attempted on you 9 Id. at 7–8 (¶¶ 26–27). 10 Id. at 9 (¶¶ 29–30). to get you to end your current legal case?” (Answer: yes.); (2) “Was it suggested to you to add the demand letter in your Florida foreclosure case?” (Answer: yes.); (3) Were you informed at Newsmax that you were a CJIS/Bivens leak victim after they knew a discrimination lawsuit was eminent?” (Answer: yes.); and (4) “Were you ever a drug dealer in Virginia or Florida?” (Answer: no.).12 1. Sua Sponte Screening – 28 U.S.C. § 1915(e)(2) A complaint filed by any person proceeding in forma pauperis under 28 U.S.C. § 1915(a) is subject to a mandatory and sua sponte review and dismissal by the court to the extent that it is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc). Section 1915(e)(2) mandates that the court reviewing an in forma pauperis complaint make and rule on its own motion to dismiss before directing the United States Marshals to serve the complaint under Federal Rule of Civil Procedure 4(c)(2). Lopez, 203 F.3d at 1127. “The language of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule of Civil Procedure 12(b)(6).” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). The in forma pauperis statute “is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). Under Rule 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. Rule 8(a)(2) requires that a complaint include a “short and plain statement” showing the plaintiff is entitled to relief. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint need not contain “detailed factual allegations,” but the plaintiff must “provide the grounds of his entitlement to relief,” which “requires more than labels and conclusions”; a mere “formulaic recitation of the elements of a cause of action” is insufficient. Twombly, 550 U.S. at 555 (cleaned up). In determining whether to dismiss a complaint under Rule 12(b)(6), the court ordinarily is limited to the face of the complaint. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). Factual allegations in the complaint must be taken as true and reasonable inferences drawn from them must be construed in favor of the plaintiff. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). The court cannot assume, however, that “the [plaintiff] can prove facts that [he] has not alleged.” Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). “Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Federal courts must construe pro se complaints liberally. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). A pro se plaintiff need only provide defendants with fair notice of his claims and the grounds upon which they rest. Hearns, 413 F.3d at 1043. He need not plead specific legal theories so long as sufficient factual averments show that he may be entitled to some relief. Id. at 1041. When dismissing a case for failure to state a claim, the Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez, 203 F.3d at 1130 (internal quotations omitted). Venue is an issue in this lawsuit. “A civil action may be brought in — (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal either dismiss the case without prejudice, or, if it is in the “interest of justice,” transfer the case “to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a); In re Hall, Bayoutree Assocs., Ltd., 939 F.2d 802, 804 (9th Cir. 1991). Ordinarily, the interest of justice requires transferring the case to a proper venue rather than dismissing the case. Baeta v. Sonchik, 273 F.3d 1261, 1264–65 (9th Cir. 2001). An action may be transferred to another court if: (1) that court is one where the action might have been brought; (2) the transfer serves the convenience of the parties; and (3) the transfer will promote the interests of justice. Kinney v. Gutierrez, No. 3:16- cv-02287-LB, 2016 WL 4268679, at *2 (N.D. Cal. Aug. 15, 2016) (citing E & J Gallo Winery v. F. & P. S.p.A., 899 F. Supp. 465, 466 (E.D. Cal. 1994)). Personal jurisdiction is an issue too. The plaintiff has the burden of establishing personal jurisdiction over the defendants in a lawsuit. Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015). 2. Application The plaintiff does not plausibly plead a Bivens claim against the United States. First, the plaintiff alleged that that someone in a local Sheriff’s office wrongfully gave information from the Criminal Justice Information Systems to his former employer (because that information can be used only for a law-enforcement purpose). He alleges no wrongful conduct by any federal employee. A private right of action for damages may be implied from the Constitution itself for constitutional violations by federal employees or their agents. Bivens, 403 U.S. at 392–97 (1971) (Fourth Amendment unreasonable search and seizure). But a plaintiff may not sue state actors directly under the Constitution under a Bivens theory of recovery, even if a remedy is not available to the plaintiff under 42 U.S.C. § 1983. Martinez v. City of L.A., 141 F.3d 1373, 1382 (9th Cir. 1998) (plaintiff who cannot sue under § 1983 because he is not a citizen or alien resident of U.S. cannot sue state police officers under Bivens). Second, a Bivens remedy exists solely against individual federal officials, not against the United States. Kreines v. United States, 33 F.3d 1105, 1109 (9th Cir. 1994); Thomas-Lazear v. FBI, 851 F.2d 1202, 1207 (9th Cir. 1988). Because the purpose of Bivens is to deter the individual officer, the Bivens remedy does not extend to damages actions against federal agencies, even where individual officers are protected by qualified immunity. FDIC v. Meyer, 510 U.S. 471, 484–86 (1994). Third, the exclusive remedy for money-damages claims against the United States is under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671–2680, which waived the sovereign immunity of the United States for certain torts committed by federal employees acting within the scope of their employment. Id. at 475–76; see 28 U.S.C. § 2680(h) (the intentional-torts exception does not apply to certain intentional torts (assault, battery, false imprisonment, false arrest, abuse of process or malicious prosecution) committed by a federal “investigative or law enforcement officer”). A related issue is exhaustion of administrative remedies and the statute of limitations for any FTCA claim. A plaintiff must exhaust administrative remedies for his claim before filing an FTCA action in federal court. 28 U.S.C. § 2675(a); Alvarado v. Table Mt. Rancheria, 509 F.3d 1008, 1018–19 (9th Cir. 2007). The FTCA’s statute of limitations is not jurisdictional and may be equitably tolled. United States v. Wong, 575 U.S. 402, 407 (2015). This applies to both of the FTCA’s limitation provisions found in 28 U.S.C. § 2401(b): the two-year period for filing a claim with the appropriate agency and the six-month period for filing suit after agency denial. Id. at 406; Gallardo v. United States, 755 F.3d 860, 864 (9th Cir. 2014). A claim accrues within the meaning of § 2401(b) when the plaintiff knows both the existence and the cause of his injury, and not at a later time when he also knows that the acts inflicting the injury may constitute a claim. United States v. Kubrick, 444 U.S. 111, 118–25 (1979); see, e.g., Gallardo, 755 F.3d at 864 (negligence claim against U.S. Marine Corps in connection with sexual assault accrued when plaintiff became aware of her injury and its immediate cause, not when she learned of the Corps’ negligence). A litigant seeking equitable tolling of the FTCA’s limitation provisions must establish two elements: (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way. Wong, 575 U.S. at 407–08. Given that the offending conduct took place in 2014, the plaintiff does not plausibly plead that he could bring an FTCA claim. Fourth, and similarly, a Bivens claim likely is time barred. Assuming that the injury happened in California (a prerequisite to this court’s jurisdiction), California’s two-year personal injury statute (9th Cir. 1991) (holding that § 1983 statute of limitations applies to Bivens actions). The statute of limitations is an affirmative defense which may not be raised by the court sua sponte. Krug v. Imbordino, 896 F.2d 395, 396 (9th Cir. 1990). But it may be grounds for sua sponte dismissal under 28 U.S.C. § 1915 where the defense is complete and obvious from the face of the pleadings or the court’s own records. Franklin v. Murphy, 745 F.2d 1221, 1228–30 (9th Cir. 1984). Fifth, the plaintiff does not seek monetary relief. The only available relief in a Bivens action is an award of money damages for any injuries caused by a defendant acting in his or her individual capacity. Ministerio Roca Solida v. McKelvey, 820 F.3d 1090, 1093–96 (9th Cir. 2016). A federal court lacks subject matter jurisdiction over a Bivens suit that seeks only equitable relief. Id. at 1095 (citing Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007)). Finally, the plaintiff has the burden of establishing this court’s jurisdiction, including personal jurisdiction over any defendant. Ranza, 793 F.3d at 1068. The plaintiff lives here now, but many of his allegations are about events in Florida. Even assuming a federal actor’s involvement, a tort in Florida likely does not give rise to the court’s personal jurisdiction here over a defendant there. Walden v. Fiore, 571 U.S. 277, 283–91 (2014). Also, if the events took place in Florida, and the defendants reside there, there is no venue in this district. 28 U.S.C. § 1391(b). In sum, the plaintiff cannot bring a Bivens claim against the DOJ and instead must name individual federal defendants in their individual (and not official) capacities. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1988). He cannot bring a Bivens claim only for equitable relief. Any claims likely are untimely. And it is uncertain whether the court would have personal jurisdiction over any individual federal defendant or venue over the lawsuit. More fundamentally, it is not certain what relief the plaintiff seeks. To the extent that he seeks finality about what claims he may have, this order may provide that insight. Because the plaintiff did not plausibly plead any claims, the court gives notice of the complaint’s deficiencies and offers the plaintiff an opportunity to cure those deficiencies if he can. The court appreciates the attention that the plaintiff gave to his complaint, including providing 1 case and the lack of involvement by any federal actors in the alleged wrongdoing, the court 2 suggests that the plaintiff probably cannot cure the complaint’s deficiencies. 3 5 The plaintiff must file any amended complaint by May 18, 2021. Another option is that if this 6 order provides the clarity that the plaintiff seeks, he can file a one-page dismissal of his case. If the 7 plaintiff does not file an amended complaint by May 18, 2021, the court will reassign the case to a 8 district judge and recommend that the newly assigned judge dismiss the case. 9 11 Dated: April 20, 2021 LAUREL BEELER %L United States Magistrate Judge

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