1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN B. JOHNSON, No. 2:23-cv-02622 SCR P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 UNKNOWN FBI AGENTS, 15 Defendants. 16
17 18 Plaintiff Kevin B. Johnson proceeds without counsel and seeks relief for alleged violations 19 of his rights by unknown FBI agents. This matter was referred to the undersigned by Local Rule 20 302. See 28 U.S.C. § 636(b)(1). Plaintiff’s first amended complaint (“FAC”) is before the court 21 for screening. (ECF No. 11.) For the reasons set forth below, the FAC fails to state a claim and 22 should be dismissed without further leave to amend. 23 I. Screening Requirement 24 Pursuant to 28 U.S.C. § 1915(e), the court must screen every in forma pauperis 25 proceeding, and must order dismissal of the case if it is “frivolous or malicious,” “fails to state a 26 claim on which relief may be granted,” or “seeks monetary relief against a defendant who is 27 immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 28 (2000). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 1 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 2 Cir. 1984). The court may dismiss a claim as frivolous if it is based on an indisputably meritless 3 legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. 4 Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a short and plain statement 5 of the claim that shows the pleader is entitled to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 6 544, 555 (2007). In order to state a cognizable claim, a complaint must contain more than “a 7 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 8 sufficient “to raise a right to relief above the speculative level.” Id., 550 U.S. at 555. The facts 9 alleged must “‘give the defendant fair notice of what the... claim is and the grounds upon which it 10 rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555). In 11 reviewing a complaint under this standard, the court accepts as true the non-conclusory 12 allegations of the complaint and construes the pleading in the light most favorable to the plaintiff. 13 See id.; Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 14 II. Background and Plaintiff’s Allegations in the FAC 15 As the court previously noted when screening plaintiff’s original complaint, plaintiff 16 already proceeds in at least one other currently pending case in this court against unknown FBI 17 agents. (See ECF No. 6 at 3, citing Johnson v. Unknown FBI Agents, No. 2:22-cv-01375-KJM- 18 DB.)1 Nevertheless, the court granted plaintiff leave to amend because it was not clear whether 19 the present action involved different alleged underlying events. (See id.) 20 In the FAC filed on July 26, 2024, plaintiff alleges unknown FBI agents, acting in 21 conjunction with the highway patrol, staged a car accident involving plaintiff on or about August 22 13, 2020. (ECF No. 11 at 1.)2 Plaintiff suffered injuries. (Id.) 23 Plaintiff further alleges in the FAC that unspecified racist FBI agents are “perpetrating a 24 fraud” against him. (ECF No. 11 at 2.) Plaintiff is “constantly stalked and approached with these 25 teen[s] for the sole reason of trying to make [plaintiff] look like something [he’s] not. These teen 26 1 The other case also named Johnson v. Unknown FBI Agents has been reassigned and is now 27 designated No. 2:22-cv-01375-KJM-SCR. 2 Plaintiff’s original complaint in this case alleged a staged car accident occurring on or about 28 July 13, 2020. (See ECF No. 1 at 5.) 1 age operatives are dishonest… and are forced to lie about men to paint a pedophile jacket on 2 them.” (Id.) Plaintiff alleges “the FBI is responsible for teen porn” and “the FBI and all Law 3 Enforcement wrongly convict Black men because of their agenda.…” (Id. at 3.) Plaintiff seeks 4 monetary damages and injunctive relief. (Id.) 5 III. Discussion 6 The FAC fails to state a claim and should be dismissed without further leave to amend at 7 this time. First, plaintiff fails to state a “Bivens” claim for damages for any alleged deprivations 8 of his rights, in part, because plaintiff does not identify any individual officer of the FBI as a 9 defendant or what each defendant allegedly did. See Bivens v. Six Unknown Named Agents of 10 Fed. Bureau of Narcotics, 403 U.S. 388 (1971); F.D.I.C. v. Meyer, 510 U.S. 471, 484-866 (1994) 11 (holding that Bivens actions lie against individual federal agents but not federal agencies). In 12 cases where the names of law enforcement officers are unknown, the plaintiff must still “make 13 individualized allegations about each ... and may not merely name an indistinguishable group of 14 Doe defendants.” MGA Entm't v. Dynacraft BSC, Inc., Case No. 2:17-cv-08222-ODW-KS, 2018 15 WL 2448123, at *8 (C.D. Cal. May 30, 2018) (quoting Rhue v. Signet Domain LLC, No. C 13- 16 8664 DMG (JC), 2015 WL 4111701, at *5 (C.D. Cal. July 8, 2015)); see also Dempsey v. 17 Schwarzenegger, No. C 09-2921 JSW (PR), 2010 WL 1445460, at *2 (N.D. Cal. Apr. 9, 2010) 18 (dismissing former inmate's civil-rights claims against 10 undifferentiated Doe defendants). 19 Plaintiff was previously informed of this defect in his allegations. (See ECF No. 6 at 3.) Plaintiff 20 has failed to remedy the defect, suggesting he cannot do so. 21 Second, plaintiff fails to state a claim for any tort under the Federal Tort Claims Act 22 (“FTCA”) because plaintiff fails to allege the jurisdictional prerequisite of exhausting 23 administrative remedies has been satisfied. See McNeil v. United States, 508 U.S. 106, 113 24 (1993). A lawsuit cannot be instituted upon a FTCA claim unless the claimant has first presented 25 the claim to the appropriate federal agency and his claim was finally denied by the agency in 26 writing. 28 U.S.C. § 2675(a). The claim must be presented to the appropriate agency “within two 27 years after such claim accrues.” 28 U.S.C. § 2401(b). If the agency denies the claim, suit must be 28 filed within six months of the date the agency sends its notice of claim denial. 28 U.S.C. § 1 2401(b). A lawsuit filed prior to the exhaustion of a claimant’s administrative claim is premature 2 and must be dismissed. McNeil, 508 U.S. at 113. Here, the FAC does not allege plaintiff filed a 3 timely administrative claim with the FBI or received a denial. Therefore, the FAC fails to 4 establish the court’s jurisdiction over a negligence claim under the FTCA. See Gillespie v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN B. JOHNSON, No. 2:23-cv-02622 SCR P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 UNKNOWN FBI AGENTS, 15 Defendants. 16
17 18 Plaintiff Kevin B. Johnson proceeds without counsel and seeks relief for alleged violations 19 of his rights by unknown FBI agents. This matter was referred to the undersigned by Local Rule 20 302. See 28 U.S.C. § 636(b)(1). Plaintiff’s first amended complaint (“FAC”) is before the court 21 for screening. (ECF No. 11.) For the reasons set forth below, the FAC fails to state a claim and 22 should be dismissed without further leave to amend. 23 I. Screening Requirement 24 Pursuant to 28 U.S.C. § 1915(e), the court must screen every in forma pauperis 25 proceeding, and must order dismissal of the case if it is “frivolous or malicious,” “fails to state a 26 claim on which relief may be granted,” or “seeks monetary relief against a defendant who is 27 immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 28 (2000). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 1 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 2 Cir. 1984). The court may dismiss a claim as frivolous if it is based on an indisputably meritless 3 legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. 4 Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a short and plain statement 5 of the claim that shows the pleader is entitled to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 6 544, 555 (2007). In order to state a cognizable claim, a complaint must contain more than “a 7 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 8 sufficient “to raise a right to relief above the speculative level.” Id., 550 U.S. at 555. The facts 9 alleged must “‘give the defendant fair notice of what the... claim is and the grounds upon which it 10 rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555). In 11 reviewing a complaint under this standard, the court accepts as true the non-conclusory 12 allegations of the complaint and construes the pleading in the light most favorable to the plaintiff. 13 See id.; Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 14 II. Background and Plaintiff’s Allegations in the FAC 15 As the court previously noted when screening plaintiff’s original complaint, plaintiff 16 already proceeds in at least one other currently pending case in this court against unknown FBI 17 agents. (See ECF No. 6 at 3, citing Johnson v. Unknown FBI Agents, No. 2:22-cv-01375-KJM- 18 DB.)1 Nevertheless, the court granted plaintiff leave to amend because it was not clear whether 19 the present action involved different alleged underlying events. (See id.) 20 In the FAC filed on July 26, 2024, plaintiff alleges unknown FBI agents, acting in 21 conjunction with the highway patrol, staged a car accident involving plaintiff on or about August 22 13, 2020. (ECF No. 11 at 1.)2 Plaintiff suffered injuries. (Id.) 23 Plaintiff further alleges in the FAC that unspecified racist FBI agents are “perpetrating a 24 fraud” against him. (ECF No. 11 at 2.) Plaintiff is “constantly stalked and approached with these 25 teen[s] for the sole reason of trying to make [plaintiff] look like something [he’s] not. These teen 26 1 The other case also named Johnson v. Unknown FBI Agents has been reassigned and is now 27 designated No. 2:22-cv-01375-KJM-SCR. 2 Plaintiff’s original complaint in this case alleged a staged car accident occurring on or about 28 July 13, 2020. (See ECF No. 1 at 5.) 1 age operatives are dishonest… and are forced to lie about men to paint a pedophile jacket on 2 them.” (Id.) Plaintiff alleges “the FBI is responsible for teen porn” and “the FBI and all Law 3 Enforcement wrongly convict Black men because of their agenda.…” (Id. at 3.) Plaintiff seeks 4 monetary damages and injunctive relief. (Id.) 5 III. Discussion 6 The FAC fails to state a claim and should be dismissed without further leave to amend at 7 this time. First, plaintiff fails to state a “Bivens” claim for damages for any alleged deprivations 8 of his rights, in part, because plaintiff does not identify any individual officer of the FBI as a 9 defendant or what each defendant allegedly did. See Bivens v. Six Unknown Named Agents of 10 Fed. Bureau of Narcotics, 403 U.S. 388 (1971); F.D.I.C. v. Meyer, 510 U.S. 471, 484-866 (1994) 11 (holding that Bivens actions lie against individual federal agents but not federal agencies). In 12 cases where the names of law enforcement officers are unknown, the plaintiff must still “make 13 individualized allegations about each ... and may not merely name an indistinguishable group of 14 Doe defendants.” MGA Entm't v. Dynacraft BSC, Inc., Case No. 2:17-cv-08222-ODW-KS, 2018 15 WL 2448123, at *8 (C.D. Cal. May 30, 2018) (quoting Rhue v. Signet Domain LLC, No. C 13- 16 8664 DMG (JC), 2015 WL 4111701, at *5 (C.D. Cal. July 8, 2015)); see also Dempsey v. 17 Schwarzenegger, No. C 09-2921 JSW (PR), 2010 WL 1445460, at *2 (N.D. Cal. Apr. 9, 2010) 18 (dismissing former inmate's civil-rights claims against 10 undifferentiated Doe defendants). 19 Plaintiff was previously informed of this defect in his allegations. (See ECF No. 6 at 3.) Plaintiff 20 has failed to remedy the defect, suggesting he cannot do so. 21 Second, plaintiff fails to state a claim for any tort under the Federal Tort Claims Act 22 (“FTCA”) because plaintiff fails to allege the jurisdictional prerequisite of exhausting 23 administrative remedies has been satisfied. See McNeil v. United States, 508 U.S. 106, 113 24 (1993). A lawsuit cannot be instituted upon a FTCA claim unless the claimant has first presented 25 the claim to the appropriate federal agency and his claim was finally denied by the agency in 26 writing. 28 U.S.C. § 2675(a). The claim must be presented to the appropriate agency “within two 27 years after such claim accrues.” 28 U.S.C. § 2401(b). If the agency denies the claim, suit must be 28 filed within six months of the date the agency sends its notice of claim denial. 28 U.S.C. § 1 2401(b). A lawsuit filed prior to the exhaustion of a claimant’s administrative claim is premature 2 and must be dismissed. McNeil, 508 U.S. at 113. Here, the FAC does not allege plaintiff filed a 3 timely administrative claim with the FBI or received a denial. Therefore, the FAC fails to 4 establish the court’s jurisdiction over a negligence claim under the FTCA. See Gillespie v. 5 Civiletti, 629 F.2d 637, 640 (9th Cir. 1980) (as a jurisdictional prerequisite, the timely filing of an 6 administrative claim must be affirmatively alleged in the complaint). 7 Moreover, it is clear that granting plaintiff further leave to amend would be futile. Plaintiff 8 has had multiple opportunities to present and amend his claims based on an alleged staged 9 automobile collision that occurred sometime in 2020 and alleged FBI attempts to entrap him 10 through teenagers, and each time plaintiff has been unable to state a claim. See, e.g., Johnson v. 11 United States (FBI), No. 2:21-cv-0959-JAM-CKD (E.D. Cal.) (alleging an automobile collision 12 where an FBI confidential informant allegedly struck and totaled plaintiff’s car); Johnson v. FBI, 13 No. 2:20-cv-02214-TLN-DB (E.D. Cal.), appeal dismissed as frivolous (9th Cir. 21-15577 July 14 16, 2021) (alleging attempts by the FBI to entrap plaintiff through teenage girls); Kevin B. 15 Johnson v. FBI, No. 2:19-cv-2359 JAM EFB PS, 2020 WL 2489735, (E.D. Cal. May 14, 2020), 16 recommendation to dismiss adopted, 2020 WL 3542257 (June 30, 2020) (same). Plaintiff 17 continues to repeat the same general allegations without heeding the court’s instructions on what 18 information the complaint must contain to state a valid claim. Granting further leave to amend 19 under these circumstances would be futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 20 (9th Cir. 1996) (no leave to amend where amendment would be futile); Williams v. California, 21 764 F.3d 1002, 1018 (9th Cir. 2014) (failure to articulate claims on two prior occasions 22 demonstrates futility of further amendment). 23 IV. Conclusion, Order, and Recommendation 24 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court 25 shall assign a district judge to this case. 26 In addition, IT IS HEREBY RECOMMENDED as follows: 27 1. Plaintiff’s first amended complaint be dismissed without further leave to amend for 28 failure to state a claim under Bivens; ] 2. Plaintiffs first amended complaint be dismissed without further leave to amend for 2 lack of FTCA jurisdiction; and 3 3. The Clerk of the Court be directed to close this case. 4 These findings and recommendations are submitted to the United States District Judge 5 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 21 days after 6 || being served with these findings and recommendations, plaintiff may file written objections with 7 || the court and serve a copy on all parties. Such a document should be captioned “Objections to 8 | Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the 9 || specified time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 10 | 1153 (9th Cir. 1991). 11 | Dated: September 6, 2024
13 SEAN C. RIORDAN 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28