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. 2:19-cv-2359-JAM-EFB PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 FEDERAL BUREAU OF INVESTIGATION, 15 Defendant. 16
17 18 The court previously granted plaintiff’s request to proceed in forma pauperis, but 19 dismissed his complaint with leave to amend pursuant to 28 U.S.C. 1915(e)(2).1 ECF No. 6. 20 Plaintiff subsequently filed a first amended complaint (ECF No. 7), as well as motions for leave 21 to file documents electronically (ECF No. 8), for a preliminary injunction (ECF No. 10), and to 22 conduct discovery (ECF No. 12). As explained below, the first amended complaint also fails to 23 state a claim and must be dismissed. Further, as discussed below, it is recommended the 24 dismissal be without further leave to amend. Accordingly, plaintiff’s motions should be denied as 25 moot. 26 ///// 27 1 This case, in which plaintiff is proceeding in propria persona, was referred to the 28 undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 1 As previously explained to plaintiff, although pro se pleadings are liberally construed, see 2 Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be 3 dismissed for failure to state a claim if it fails to set forth “enough facts to state a claim to relief 4 that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) 5 (citing Conley v. Gibson, 355 U.S. 41 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s 6 obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and 7 conclusions, and a formulaic recitation of a cause of action’s elements will not do. Factual 8 allegations must be enough to raise a right to relief above the speculative level on the assumption 9 that all of the complaint’s allegations are true.” Id. (citations omitted). Dismissal is appropriate 10 based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to 11 support cognizable legal theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 12 1990). 13 Under this standard, the court must accept as true the allegations of the complaint in 14 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 15 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, 16 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading 17 requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a 18 complaint to include “a short and plain statement of the claim showing that the pleader is entitled 19 to relief, in order to give the defendant fair notice of what the claim is and the grounds upon 20 which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)). 21 Like the original complaint’s allegations, the first amended complaint’s allegations are 22 difficult to follow. The 28-page amended complaint is filled with rambling about an alleged 23 conspiracy by defendant the Federal Bureau of Investigation (“FBI”) to arrest and convict 24 plaintiff of a crime. ECF No. 7. Liberally construed, the amended complaint alleges that the FBI 25 is employing teenage girls to work as prostitutes in effort to trick men, including plaintiff, into 26 committing crimes. Id. at 13. Plaintiff claims that the FBI has instructed teenage girls to enter his 27 car with drug paraphernalia to make it appear plaintiff permits minors to use drugs. Id. He 28 further alleges the FBI has been falsely informing members of the community that plaintiff is a 1 pedophile and is “pimping teens across state lines.” Id. at 14. He also claims he has been 2 subjected to constant surveillance, and that FBI agents “monitor which street [he is] driving down 3 and place a teen in [his] path.” Id. 4 The complaint alleges that the FBI’s conduct violated plaintiff’s right to free speech under 5 the First Amendment and to equal protection and due process under the Fourteenth Amendment. 6 Id. at 9-11. It appears plaintiff is attempting to allege Bivens2claims against the FBI for violation 7 of his constitutional rights. As plaintiff was previously informed, federal agencies, such as the 8 FBI, are not amendable to suit under Bivens. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69- 9 70 (2001). 10 The complaint also alleges that the FBI was negligent and made defamatory statements. 11 Id. at 6, 13. Plaintiff’s purported negligence claim rests on vague and conclusory allegations that 12 fail to provide defendant with sufficient notice of the factual basis for plaintiff’s claim. Jones v. 13 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least 14 some degree of particularity overt acts which defendants engaged in that support plaintiff’s claim. 15 Id. The allegations must be short and plain, simple and direct and describe the relief plaintiff 16 seeks. Fed. R. Civ. P. 8(a); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); Galbraith v. 17 County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002). Plaintiff has not alleged facts 18 which, if presented to defendant, would adequately put it on notice of the facts underlying his 19 negligence claim. 20 More significantly, the negligence claim fails as a matter of law as plaintiff fails to allege 21 compliance with the Federal Tort Claims Act (“FTCA”). Tort claims—including claims for 22 negligence—must be brought against the United States pursuant to the FTCA. 28 U.S.C. § 2671- 23 2680; see also Kennedy v. U.S. Postal Service, 145 F.3d 1077, 1078 (9th Cir. 1998) (“[T]he 24 United States is the only proper party defendant in an FTCA action”). The FTCA requires a 25 plaintiff, prior to commencing a civil action, to file an administrative tort claim with the 26 appropriate agency. 28 U.S.C. § 2675(a). “The timely filing of an administrative claim is a 27 2 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 28 (1971).
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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. 2:19-cv-2359-JAM-EFB PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 FEDERAL BUREAU OF INVESTIGATION, 15 Defendant. 16
17 18 The court previously granted plaintiff’s request to proceed in forma pauperis, but 19 dismissed his complaint with leave to amend pursuant to 28 U.S.C. 1915(e)(2).1 ECF No. 6. 20 Plaintiff subsequently filed a first amended complaint (ECF No. 7), as well as motions for leave 21 to file documents electronically (ECF No. 8), for a preliminary injunction (ECF No. 10), and to 22 conduct discovery (ECF No. 12). As explained below, the first amended complaint also fails to 23 state a claim and must be dismissed. Further, as discussed below, it is recommended the 24 dismissal be without further leave to amend. Accordingly, plaintiff’s motions should be denied as 25 moot. 26 ///// 27 1 This case, in which plaintiff is proceeding in propria persona, was referred to the 28 undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 1 As previously explained to plaintiff, although pro se pleadings are liberally construed, see 2 Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be 3 dismissed for failure to state a claim if it fails to set forth “enough facts to state a claim to relief 4 that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) 5 (citing Conley v. Gibson, 355 U.S. 41 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s 6 obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and 7 conclusions, and a formulaic recitation of a cause of action’s elements will not do. Factual 8 allegations must be enough to raise a right to relief above the speculative level on the assumption 9 that all of the complaint’s allegations are true.” Id. (citations omitted). Dismissal is appropriate 10 based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to 11 support cognizable legal theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 12 1990). 13 Under this standard, the court must accept as true the allegations of the complaint in 14 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 15 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, 16 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading 17 requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a 18 complaint to include “a short and plain statement of the claim showing that the pleader is entitled 19 to relief, in order to give the defendant fair notice of what the claim is and the grounds upon 20 which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)). 21 Like the original complaint’s allegations, the first amended complaint’s allegations are 22 difficult to follow. The 28-page amended complaint is filled with rambling about an alleged 23 conspiracy by defendant the Federal Bureau of Investigation (“FBI”) to arrest and convict 24 plaintiff of a crime. ECF No. 7. Liberally construed, the amended complaint alleges that the FBI 25 is employing teenage girls to work as prostitutes in effort to trick men, including plaintiff, into 26 committing crimes. Id. at 13. Plaintiff claims that the FBI has instructed teenage girls to enter his 27 car with drug paraphernalia to make it appear plaintiff permits minors to use drugs. Id. He 28 further alleges the FBI has been falsely informing members of the community that plaintiff is a 1 pedophile and is “pimping teens across state lines.” Id. at 14. He also claims he has been 2 subjected to constant surveillance, and that FBI agents “monitor which street [he is] driving down 3 and place a teen in [his] path.” Id. 4 The complaint alleges that the FBI’s conduct violated plaintiff’s right to free speech under 5 the First Amendment and to equal protection and due process under the Fourteenth Amendment. 6 Id. at 9-11. It appears plaintiff is attempting to allege Bivens2claims against the FBI for violation 7 of his constitutional rights. As plaintiff was previously informed, federal agencies, such as the 8 FBI, are not amendable to suit under Bivens. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69- 9 70 (2001). 10 The complaint also alleges that the FBI was negligent and made defamatory statements. 11 Id. at 6, 13. Plaintiff’s purported negligence claim rests on vague and conclusory allegations that 12 fail to provide defendant with sufficient notice of the factual basis for plaintiff’s claim. Jones v. 13 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least 14 some degree of particularity overt acts which defendants engaged in that support plaintiff’s claim. 15 Id. The allegations must be short and plain, simple and direct and describe the relief plaintiff 16 seeks. Fed. R. Civ. P. 8(a); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); Galbraith v. 17 County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002). Plaintiff has not alleged facts 18 which, if presented to defendant, would adequately put it on notice of the facts underlying his 19 negligence claim. 20 More significantly, the negligence claim fails as a matter of law as plaintiff fails to allege 21 compliance with the Federal Tort Claims Act (“FTCA”). Tort claims—including claims for 22 negligence—must be brought against the United States pursuant to the FTCA. 28 U.S.C. § 2671- 23 2680; see also Kennedy v. U.S. Postal Service, 145 F.3d 1077, 1078 (9th Cir. 1998) (“[T]he 24 United States is the only proper party defendant in an FTCA action”). The FTCA requires a 25 plaintiff, prior to commencing a civil action, to file an administrative tort claim with the 26 appropriate agency. 28 U.S.C. § 2675(a). “The timely filing of an administrative claim is a 27 2 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 28 (1971). 1 jurisdictional prerequisite to the bringing of a suit under the FTCA and, as such, should be 2 affirmatively alleged in the complaint.” Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980); 3 see Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000) (“The requirement of an 4 administrative claim is jurisdictional.”). Here, the amended complaint does not allege plaintiff 5 filed an administrative claim. Consequently, he has failed to establish the court’s jurisdiction 6 over his negligence claim. 7 Plaintiff’s defamation claim also fails since the federal government has not waived its 8 sovereign immunity for such claims. 28 U.S.C. § 2680(h); see Walker v. Chugachmuit, 46 F. 9 App’x 421, 425 (9th Cir. 2002) (“The FTCA specifically provides that the Government has not 10 waived its sovereign immunity with respect to any claim arising out of . . . libel [or] slander . . . . 11 (internal quotations omitted)). 12 Accordingly, the amended complaint must be dismissed for failure to state a claim 13 pursuant to 28 U.S.C. 1915(e)(2). Further, the court finds that granting further leave to amend 14 would be futile. Plaintiff has already been afforded an opportunity to amend, and his allegations 15 continue to fall far short of stating a cognizable claim. Consequently, it is recommended that the 16 dismissal be without further leave to amend.3 See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 17 1987) (while the court ordinarily would permit a pro se plaintiff to amend, leave to amend should 18 not be granted where it appears amendment would be futile). 19 Accordingly, it is hereby RECOMMENDED that: 20 1. Plaintiff’s first amended complaint (ECF No. 7) be dismissed without leave to amend; 21 and 22 ///// 23 ///// 24 3 As noted, plaintiff has also moved for leave to file documents electronically (ECF No. 25 8), for injunctive relief (ECF No. 10), and to conduct discovery (ECF No. 12). Because the 26 amended complaint must be dismissed without leave to amend, these motions must necessarily be denied as moot. Plaintiff’s motion for injunctive relief must also be denied since plaintiff is 27 unable to demonstrate a likelihood of success on the merits. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (A party must demonstrate a likelihood of success on the 28 merits in support of the grant of preliminary injunctive relief). wOAOe 2 LDV □□□ VAIN EP MVOC tO PIR Te AY VI
1 2. Plaintiff’s motions for leave to file documents electronically (ECF No. 8), for 2 || injunctive relief (ECF No. 10), and to conduct discovery (ECF No. 12) be denied as moot. 3 These findings and recommendations are submitted to the United States District Judge 4 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 5 || after being served with these findings and recommendations, any party may file written 6 || objections with the court and serve a copy on all parties. Such a document should be captioned 7 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 8 || within the specified time may waive the right to appeal the District Court’s order. Turner □□□ 9 | Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 10 | DATED: May 14, 2020. tid, PDEA EDMUND F. BRENNAN 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28