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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 MARLIN GIOVANNI PICKENS, CASE NO. C22-5438 MJP 11 Plaintiff, ORDER OF DISMISSAL 12 v. 13 CENTRAL INTELLIGENCE AGENCY, 14 Defendant. 15 16 17 The Court issues this Order of Dismissal after reviewing Plaintiff’s Complaint. (Dkt. No. 18 5.) Having reviewed the Complaint, the Court DISMISSES the Complaint WITH PREJUDICE 19 pursuant to 28 U.S.C. § 1915(e)(2)(B) because the claims are barred by sovereign immunity and 20 because the Complaint fails to state a claim for relief as required by Rule 8 of the Federal Rules 21 of Civil Procedure. 22 BACKGROUND 23 Plaintiff Marlin Giovanni Pickens has filed a Bivens action against the Central 24 Intelligence Agency. (Dkt. No. 5-1 at 3-5.) Plaintiff appears to allege that the availability of 1 pornography on the internet violates the constitutional rights of all American citizens. (Id. at 4.) 2 But Plaintiff does not identify any actions taken or omitted by the CIA or its agents or any injury 3 he has personally suffered. 4 ANALYSIS
5 A. Legal Standard 6 There are certain minimum standards that apply to any complaint filed in federal district 7 court. The standards applicable to Plaintiff’s complaint are contained in Rule 8 of the Federal 8 Rules of Civil Procedure. To satisfy Rule 8, a complaint “must contain sufficient factual matter, 9 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 10 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim 11 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 12 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 13 678. “But where the well-pleaded facts do not permit the court to infer more than the mere 14 possibility of misconduct,” the allegations are inadequate to satisfy Rule 8. Id. at 679. And
15 “[w]here a complaint pleads facts that are merely consistent with a defendant’s liability, it stops 16 short of the line between possibility and plausibility of entitlement to relief.” Twombly, 559 U.S. 17 at 557 (quotation omitted); see Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004) 18 (“[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion 19 to dismiss.”). 20 When a plaintiff appears without counsel in a civil rights case, “the court must construe 21 the pleadings liberally and must afford plaintiff the benefit of any doubt.” Karim-Panahi v. Los 22 Angeles Police Dep’t, 839 F.2d 621, 624 (9th Cir. 1988). Yet this lenient standard does not 23
24 1 excuse a pro se litigant from meeting the most basic pleading requirements. See Am. Ass’n of 2 Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107-08 (9th Cir. 2000). 3 And because Plaintiff has been granted leave to proceed with this matter without paying 4 the filing fee, the Court is required to “dismiss the case at any time if the court determines” that
5 the action: (1) “is frivolous or malicious”; (ii) “fails to state a claim on which relief may be 6 granted” or (iii) “seeks monetary relief against a defendant who is immune from such relief.” 28 7 U.S.C. § 1915(e)(2)(B). Before the Court may dismiss the complaint as frivolous or for failure to 8 state a claim, it “must provide the pro se litigant with notice of the deficiencies of his or her 9 complaint and an opportunity to amend the complaint prior to dismissal.” McGucken v. Smith, 10 974 F.2d 1050, 1055 (9th Cir. 1992). Leave to amend need not be granted “where the 11 amendment would be futile or where the amended complaint would be subject to dismissal.” 12 Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). 13 B. Defects in Complaint 14 Having reviewed Plaintiff’s Complaint, the Court finds that its claims are barred by
15 sovereign immunity, do not state a claim for relief, and appear to be frivolous. The Court 16 DISMISSES the claims WITH PREJUDICE because amendment would be futile. 17 Bivens actions are the judicially-crafted counterpart to Section 1983. They enable victims 18 to sue individual federal officers for damages resulting from violations of constitutional rights. 19 Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). To state a claim under Bivens, a 20 plaintiff must allege facts showing that: (1) a right secured by the Constitution or laws of the 21 United States was violated, and (2) the alleged deprivation was committed by a federal actor. 22 Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). “Actions under § 1983 and those under 23
24 1 Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor 2 under Bivens.” Id. 3 The first and primary problem with Plaintiff’s Complaint is that its claims against the 4 CIA are barred by sovereign immunity. The United States, as a sovereign, may not be sued
5 without its consent, and the terms of its consent define the court’s jurisdiction. United States v. 6 Dalm, 494 U.S. 596, 608 (1990). A waiver of the United States’ sovereign immunity must be 7 unequivocally expressed in statutory text. Lane v. Pena, 518 U.S. 187, 192 (1996). “[T]he United 8 States has not waived its sovereign immunity in action seeking damages for constitutional 9 violations.” Thomas-Lazer v. FBI, 851 F.2d 1202, 1207 (9th Cir. 1988). Further, Bivens actions 10 are only available against individual federal officials, not against the United States or agency of 11 the United States. FDIC v. Meyer, 510 U.S. 471, 486 (1994) (“An extension of Bivens to 12 agencies of the Federal Government is not supported by the logic of Bivens itself.”). Here, 13 Plaintiff’s claims against the CIA, an agency of the United States, are barred by sovereign 14 immunity. And Plaintiff has not identified any individual CIA agents that may be responsible for
15 or who have caused injury to Plaintiff. As such, the Court finds that the claims are barred by 16 sovereign immunity and must be DISMISSED. 17 Second, Plaintiff has failed to allege any facts to support his Bivens claims as required to 18 state a claim for relief. The Complaint alleges vaguely that Plaintiff’s and all American citizens’ 19 rights have been violated, without identifying who caused the violation, what acts or omission 20 relate to the violation of rights, and whether any acts or omissions occurred that are attributable 21 to any agent or employee of the CIA.
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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 MARLIN GIOVANNI PICKENS, CASE NO. C22-5438 MJP 11 Plaintiff, ORDER OF DISMISSAL 12 v. 13 CENTRAL INTELLIGENCE AGENCY, 14 Defendant. 15 16 17 The Court issues this Order of Dismissal after reviewing Plaintiff’s Complaint. (Dkt. No. 18 5.) Having reviewed the Complaint, the Court DISMISSES the Complaint WITH PREJUDICE 19 pursuant to 28 U.S.C. § 1915(e)(2)(B) because the claims are barred by sovereign immunity and 20 because the Complaint fails to state a claim for relief as required by Rule 8 of the Federal Rules 21 of Civil Procedure. 22 BACKGROUND 23 Plaintiff Marlin Giovanni Pickens has filed a Bivens action against the Central 24 Intelligence Agency. (Dkt. No. 5-1 at 3-5.) Plaintiff appears to allege that the availability of 1 pornography on the internet violates the constitutional rights of all American citizens. (Id. at 4.) 2 But Plaintiff does not identify any actions taken or omitted by the CIA or its agents or any injury 3 he has personally suffered. 4 ANALYSIS
5 A. Legal Standard 6 There are certain minimum standards that apply to any complaint filed in federal district 7 court. The standards applicable to Plaintiff’s complaint are contained in Rule 8 of the Federal 8 Rules of Civil Procedure. To satisfy Rule 8, a complaint “must contain sufficient factual matter, 9 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 10 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim 11 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 12 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 13 678. “But where the well-pleaded facts do not permit the court to infer more than the mere 14 possibility of misconduct,” the allegations are inadequate to satisfy Rule 8. Id. at 679. And
15 “[w]here a complaint pleads facts that are merely consistent with a defendant’s liability, it stops 16 short of the line between possibility and plausibility of entitlement to relief.” Twombly, 559 U.S. 17 at 557 (quotation omitted); see Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004) 18 (“[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion 19 to dismiss.”). 20 When a plaintiff appears without counsel in a civil rights case, “the court must construe 21 the pleadings liberally and must afford plaintiff the benefit of any doubt.” Karim-Panahi v. Los 22 Angeles Police Dep’t, 839 F.2d 621, 624 (9th Cir. 1988). Yet this lenient standard does not 23
24 1 excuse a pro se litigant from meeting the most basic pleading requirements. See Am. Ass’n of 2 Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107-08 (9th Cir. 2000). 3 And because Plaintiff has been granted leave to proceed with this matter without paying 4 the filing fee, the Court is required to “dismiss the case at any time if the court determines” that
5 the action: (1) “is frivolous or malicious”; (ii) “fails to state a claim on which relief may be 6 granted” or (iii) “seeks monetary relief against a defendant who is immune from such relief.” 28 7 U.S.C. § 1915(e)(2)(B). Before the Court may dismiss the complaint as frivolous or for failure to 8 state a claim, it “must provide the pro se litigant with notice of the deficiencies of his or her 9 complaint and an opportunity to amend the complaint prior to dismissal.” McGucken v. Smith, 10 974 F.2d 1050, 1055 (9th Cir. 1992). Leave to amend need not be granted “where the 11 amendment would be futile or where the amended complaint would be subject to dismissal.” 12 Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). 13 B. Defects in Complaint 14 Having reviewed Plaintiff’s Complaint, the Court finds that its claims are barred by
15 sovereign immunity, do not state a claim for relief, and appear to be frivolous. The Court 16 DISMISSES the claims WITH PREJUDICE because amendment would be futile. 17 Bivens actions are the judicially-crafted counterpart to Section 1983. They enable victims 18 to sue individual federal officers for damages resulting from violations of constitutional rights. 19 Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). To state a claim under Bivens, a 20 plaintiff must allege facts showing that: (1) a right secured by the Constitution or laws of the 21 United States was violated, and (2) the alleged deprivation was committed by a federal actor. 22 Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). “Actions under § 1983 and those under 23
24 1 Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor 2 under Bivens.” Id. 3 The first and primary problem with Plaintiff’s Complaint is that its claims against the 4 CIA are barred by sovereign immunity. The United States, as a sovereign, may not be sued
5 without its consent, and the terms of its consent define the court’s jurisdiction. United States v. 6 Dalm, 494 U.S. 596, 608 (1990). A waiver of the United States’ sovereign immunity must be 7 unequivocally expressed in statutory text. Lane v. Pena, 518 U.S. 187, 192 (1996). “[T]he United 8 States has not waived its sovereign immunity in action seeking damages for constitutional 9 violations.” Thomas-Lazer v. FBI, 851 F.2d 1202, 1207 (9th Cir. 1988). Further, Bivens actions 10 are only available against individual federal officials, not against the United States or agency of 11 the United States. FDIC v. Meyer, 510 U.S. 471, 486 (1994) (“An extension of Bivens to 12 agencies of the Federal Government is not supported by the logic of Bivens itself.”). Here, 13 Plaintiff’s claims against the CIA, an agency of the United States, are barred by sovereign 14 immunity. And Plaintiff has not identified any individual CIA agents that may be responsible for
15 or who have caused injury to Plaintiff. As such, the Court finds that the claims are barred by 16 sovereign immunity and must be DISMISSED. 17 Second, Plaintiff has failed to allege any facts to support his Bivens claims as required to 18 state a claim for relief. The Complaint alleges vaguely that Plaintiff’s and all American citizens’ 19 rights have been violated, without identifying who caused the violation, what acts or omission 20 relate to the violation of rights, and whether any acts or omissions occurred that are attributable 21 to any agent or employee of the CIA. Nor does the Complaint contain any allegations showing 22 causation—that is, facts that might show how any acts or omissions, policies, customs, or 23 practices, allegedly caused a deprivation of Plaintiff’s rights. These vague and conclusory
24 1 allegations of wrongdoing without factual support are insufficient to state a claim. This is an 2 independent basis on which the Court finds the Complaint must be DISMISSED. 3 Third, given the Court’s present understanding of the allegations in the Complaint, the 4 Court finds the claims to be frivolous. Plaintiff’s concerns about pornography appears to have no
5 nexus either to the CIA or to Plaintiff. The claim “lacks an arguable basis either in law or in fact” 6 and appear frivolous as pleaded. See Neitzke v. Williams, 490 U.S. 319, 325 (1989). This is an 7 independent basis on which the Court finds the Complaint must be DISMISSED. 8 CONCLUSION 9 Given the deficiencies described above, the Court DISMISSES Plaintiff’s Complaint. 10 Because Plaintiff’s claims are barred by sovereign immunity and appear frivolous, the Court 11 DISMISSES the claims WITH PREJUDICE because amendment would be futile. See Saul, 928 12 F.2d at 843; 28 U.S.C. § 1915(e)(2)(B). 13 The Clerk is directed to send Plaintiff and all counsel a copy of this Order. 14 Dated June 21, 2022. A 15 16 Marsha J. Pechman United States Senior District Judge 17 18 19 20 21 22 23 24