Stefan Michalopoulos v. United States of America, et al.

Opinion

1 2 3 4 5 6 7 10 11 STEFAN MICHALOPOULOS, Case No. 1:24-cv-01169-CDB

12 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS WITH LEAVE 13 v. TO AMEND 14 UNITED STATES OF AMERICA, et al., (Doc. 30) 15 Defendants. ORDER DENYING PLAINTIFF’S MOTION 16 FOR DEFAULT JUDGMENT

17 (Doc. 33) 18 30-DAY DEADLINE 19 20 Pending before the Court1 is the motion of Defendants United States of America and Federal 21 Bureau of Investigation (“FBI”) (collectively, “Defendants”) to dismiss the complaint of Plaintiff 22 Stefan Michalopoulos (“Plaintiff”) (Doc. 1), filed on January 21, 2025. (Doc. 30). On March 4, 23 2025, Plaintiff filed a construed opposition to Defendants’ motion to dismiss (see Docs. 35, 36), 24 and on March 13, 2025, Defendants replied (Doc. 37). Following review of the parties’ filings 25 made in connection with the motion, the Court deemed the motion suitable for disposition without 26 hearing and oral argument and vacated the motion hearing set for April 1, 2025. (Doc. 38) (citing 27 1 Following all parties’ expression of consent to the jurisdiction of a magistrate judge for 1 Local Rule 230(g)). For the reasons set forth herein, the Court will grant Defendants’ motion to 2 dismiss the complaint and extend to Plaintiff leave to amend the complaint to the extent he can, in 3 good faith, remedy the deficiencies noted herein. 4 I. Relevant Background 5 A. Procedural History 6 Plaintiff initiated this action with the filing of a complaint on October 2, 2024. (Doc. 1). In 7 his complaint, Plaintiff asserts a single cause of action against Defendants pursuant to the Federal 8 Tort Claims Act (“FTCA”). See id. at 20. Specifically, Plaintiff alleges Defendants engaged in:

9 false accusations, government overdramatization and reckless disregard for the 10 truth, negligent tort, retaliation, discrimination, abuse of discretion, civil rights violation, unreasonable search and seizure, emotional distress, personal injury, 11 harassment, due process violation, perjury, invasion of privacy by intrusion, equal protection, grossly disproportionate cruel and unusual treatment and punishment. 12 13 Id. at 20-21. 14 On October 22, 2024, Plaintiff filed a document entitled “Important Notice to the Court” in 15 which he reiterated various of the allegations set forth in the complaint and made additional requests 16 for relief, to wit:

17 We are seeking legal and court ordered correction to this whole case. A proper court 18 ordered treatment plan using California's Laura's law, and a court order for the FBI to leave him alone from now on. A letter from the FBI saying they will no longer 19 target Stefan. A letter stating that he has been removed from the Terrorist Screening Dataset. A letter stating that he has been removed from the International Terrorist 20 Watchlist. A letter stating that he has been removed from the World Wide Target list for dangerous targets. Stefan was added to all these watchlists by the FBI for 21 constitutionally and legally impermissible reasons. This matter will be discussed in 22 d etail during the court hearings. 23 (Doc. 6 at 5). 24 Thereafter, Plaintiff made a series of filings, including: (1) a motion for leave to amend and 25 a lodged first amended complaint; (2) a motion for temporary restraining order; (3) a motion for 26 27 1 leave to file supplemental pleading; and (4) a further motion for temporary restraining order.2 2 (Docs. 10, 11, 12, 15, 16). 3 On December 13, 2024, Defendant the United States of America appeared and filed a joint 4 scheduling report, representing therein that it would seek an order substituting it for Defendant FBI 5 as the only proper party for claims under the FTCA and that it intended to file a motion to dismiss 6 the operative complaint. (Doc. 17 at 2, 3, 5-7). In light of that representation, on December 18, 7 2024, the Court ordered the parties to meet and confer and file a joint report proposing a briefing 8 schedule on Defendants’ anticipated motion to dismiss. (Doc. 21). On December 27, 2024, 9 pursuant to the parties’ stipulated agreement (Doc. 25), the Court ordered Defendants to file any 10 motion to dismiss no later than January 21, 2025, Plaintiff to file either an opposition or statement 11 of non-opposition thereto no later than February 4, 2025, and Defendants to file any reply no later 12 than February 21, 2025, and vacated the January 2, 2025, scheduling conference to be reset as 13 appropriate following the Court’s resolution of Defendant’s anticipated motion to dismiss. (Doc. 14 27). 15 On December 30, 2024, Plaintiff filed a purported opposition to Defendants’ anticipated 16 motion to dismiss (Doc. 28), which the Court disregards as an improper filing as it was 17 preemptively filed before Defendants filed any motion to dismiss. See Local Rule 230(c) 18 (“Opposition, if any, to the granting of the motion ... shall be filed and served no later than fourteen 19 (14) days after the motion was filed.”) (emphasis added). Further, notwithstanding Plaintiff filed 20 a request for entry of default against Defendants (Doc. 31), because Defendants timely filed a 21 responsive pleading, they are not in default. Accordingly, the Court will deny Plaintiff’s motion 22 for default judgment (Doc. 33). See (Docs. 8, 9, 13, 14, 17, 30). 23 B. The Complaint’s Factual Allegations 24 Plaintiff asserts a claim for damages under the Federal Tort Claims Act. (Doc. 1). In his 25 complaint, he alleges that his claims stem from actions taken by investigative officers and other 26 agency officials and employees of the federal government and the FBI “while acting within the 27

2 1 scope of their employment.” Id. ¶ 8. He alleges that since March 2003, he has been under audio 2 and video surveillance in his home and work and followed at all public places “for life[,]” including 3 being surveilled of his cell phone, computer, texts, emails, and in person. Id. ¶¶ 9, 14. He alleges 4 that the FBI is in violation of his civil and constitutional rights based on this “negligent and 5 discriminatory conduct” and that he was “secretly” sentenced to deprivation of his “whole life” 6 without the chance to defend himself. Id. ¶ 9. Plaintiff’s complaint appears to allege that he was 7 impermissibly placed on a government “watchlist,” i.e., the “FBI’s American Domestic ‘Terrorist 8 Screening Dataset’” based on his mental health issues including his belief that “[h]e thinks he is a 9 Navy SEAL[.]” Id. ¶ 12. He alleges that there is a “loophole” in the system because if he is on 10 these watchlists, then he is “automatically a National Security Threat” even though there is no 11 probable cause. Id. He asserts that warrants obtained for this surveillance are facially deficient and 12 unlawful with false information and that the FBI “covertly administers mind-altering substances” 13 that impairs his ability to function. Id. ¶ 14. 14 He asserts the “circumstances of this case have deprived [him]” of various constitutional 15 rights, including the rights to be presumed innocent, to equal protection, to freedom from 16 government discrimination, privacy, and other claimed rights. Id. ¶¶ 18-20. He asserts that 17 equitable relief is necessary to stop “this illegal surveillance because the FBI intention is to have 18 [him] under surveillance ‘for life.’” Id. ¶ 23. He alleges that the FBI mandates that he be drugged 19 in order to minimize and neutralize him as a threat because he “used to work out a lot and enjoy 20 health and fitness, and kept getting stronger … over the years [and] [] have been seen as a huge 21 threat than just mentally disabled.” Id. ¶ 26. 22 He alleges that in 2019 on the island of St. Croix, the FBI wanted him to leave the island 23 because it is a small community and for the safety of the people and the FBI administered 24 testosterone and other substances causing him to overdose for many months, leading to mental and 25 physical pain. Id. ¶ 29. He alleges that later in November 2019, he ran away to Canada to visit his 26 brother and was interrogated by various investigative units of the federal government when he 27 arrived. Id. He further alleges that the Canadian Security and Intelligence Service insisted he was 1 allegations including of being misinterpreted as “crazy” because “he thinks he is a Navy SEAL” 2 and of the FBI’s surveillance of him. See id. ¶¶ 34-35. 3 In his claim for violation of the FTCA, he asserts that his allegations “constitute negligent 4 and wrongful acts and omissions of agents and employees” of the federal government including 5 “false accusations, … negligent tort, retaliation, discrimination, civil rights violation,” and a 6 number of other violations. Id. ¶ 38. He asserts that the “intentional infliction of … psychological 7 torture and mental suffering” based on “the administration or application of mind-altering 8 substances or other procedures calculated to disrupt profoundly the senses or the personality” are 9 “circumstances where the defendant United States, if a private person, would be liable to the 10 Plaintiff[.]” Id. 11 Plaintiff asserts he has suffered damages and alleges an extensive list of injuries, including 12 physical, mental, emotional, and financial injuries. See id. ¶ 39(a)-(m); see also id. ¶¶ 40-46. For 13 example, Plaintiff alleges he has been tortured by “effects calculated by the FBI to impair [his] 14 brain and body” causing him various physical issues including “extreme bloating and 15 uncontrollable weight gain” and sexual dysfunction, insomnia, and other issues. See id. ¶ 40. He 16 alleges that since “overdosing in 2019, every day for many years now and until present day, [he 17 has] testicular pain from the FBI administration of these substances containing variations of 18 testosterones.” Id. ¶ 43. He alleges the FBI puts these substances in his food, prescription pills, 19 sprays it on his bed, towels, and other personal toiletries, belongings, and food items and “watches” 20 him shower and “knows” if he is “eating the food, sleeping in [his] bed, [etc.]” Id. ¶ 44. He alleges 21 that “[a]s a direct result of the actions of the government, [he has] been greatly distressed, 22 humiliated, and embarrassed” and has “sustained intense and severe mental suffering and 23 distress[.]” Id. ¶ 45. He asserts a cause of action for privacy and the tort of invasion of privacy 24 which “allows [him] to recover damages for [] deprivation of [his] solitude and seclusion and [] 25 that [his] private life is publicly given, allowing recovery for the harm resulting to [his] reputation 26 from the publicity” and to recover damages “for the harm to [his] reputation from the position in 27 which [he is] placed” and damages for emotional distress and humiliation. Id. ¶ 46. 1 In his prayer for relief, Plaintiff seeks the following: damages in the amount of $500 million 2 dollars; injunctive relief to have him “removed from all domestic and international watchlists … to 3 prevent this surveillance from following [him] domestically and internationally when [he] decide[s] 4 to travel abroad”; to quash and traverse the warrants against him as constitutionally void and for 5 the “fruits of the poisonous tree” evidence to be destroyed “as though [he] was never under 6 surveillance”; and the costs of the action. Id. ¶ 47. The complaint is signed and dated October 2, 7 2024. Id. at 25. Plaintiff attaches to the complaint a form titled “Claim for Damage, Injury, or 8 Death” purporting to bear his signature and a letter from the U.S. Department of Justice (“DOJ”) 9 dated September 9, 2024, indicating that the FBI has denied his claim for personal injury for a sum 10 certain amount of $500 million dollars. Id. at 26-28. 11 II. Governing Authority 12 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) asks a court to dismiss 13 a plaintiff’s complaint for failing “to state a claim upon which relief can be granted.” Fed. R. Civ. 14 P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the complaint’s sufficiency. N. Star 15 Int’l v. Ariz. Corp. Comm’n., 720 F.2d 578, 581 (9th Cir. 1983) (citing Peck v. Hoff, 660 F.2d 371, 16 374 (8th Cir. 1981)). A complaint may be dismissed as a matter of law either for lack of a 17 cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. 18 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (citing Robertson v. Dean 19 Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984)). 20 To survive a motion to dismiss under Rule 12(b)(6), a complaint must provide sufficient 21 factual matter to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 22 678 (2009); see Fed. R. Civ. P. 8(a)(2) (a complaint must contain a short and plain statement of the 23 claim showing that the pleader is entitled to relief). A complaint satisfies the plausibility 24 requirement if it contains sufficient facts for the court to “draw [a] reasonable inference that the 25 defendant is liable for the misconduct alleged.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 26 (2007). 27 When considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court 1 in favor of the non-moving party. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted); 2 Hebbe v. Pliler, 627 F.3d 338, 340 (9th Cir. 2010). The complaint need not include “detailed 3 factual allegations,” but must include “more than an unadorned, the-defendant-unlawfully-harmed- 4 me accusation.” Iqbal, 556 U.S. at 678 (citations omitted). The Court is “not ‘required to accept 5 as true allegations that contradict exhibits attached to the Complaint or matters properly subject to 6 judicial notice, or allegations that are merely conclusory, unwarranted deductions of fact, or 7 unreasonable inferences.’” Seven Arts Filmed Entm’t, Ltd. v. Content Media Corp. PLC, 733 F.3d 8 1251, 1254 (9th Cir. 2013) (quoting Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 9 2010)). Nor does the court “necessarily assume the truth of legal conclusions merely because they 10 are cast in the form of factual allegations.” Western Min. Council v. Watt, 643 F.2d 618, 624 (9th 11 Cir. 1981); see Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555) (while factual allegations 12 are accepted as true, legal conclusions are not). 13 Finally, courts must construe pro se pleadings liberally and hold such pleadings to a less 14 stringent standard than those drafted by attorneys. Boag v. MacDougall, 454 U.S. 364, 365 (1982) 15 (per curiam); see Hughes v. Rowe, 449 U.S. 5, 9 (1980) (“It is settled law that the allegations of [a 16 pro se litigant’s complaint] ‘however inartfully pleaded’ are held ‘to less stringent standards than 17 formal pleadings drafted by lawyers . . .’” (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972))). 18 A court should dismiss a pro se complaint without leave to amend only if “it is absolutely clear that 19 the deficiencies of the complaint could not be cured by amendment.” Akhtar v. Mesa, 698 F.3d 20 1202, 1212 (9th Cir. 2012). 21 III. Parties’ Contentions 22 Defendants move to dismiss Plaintiff’s complaint because Plaintiff fails to meet his burden 23 of establishing subject matter jurisdiction and fails to plausibly allege facts necessary to state any 24 claims against them. (Doc. 30 at 1). Defendants contend that because the United States is the only 25 proper defendant for claims under the FTCA, and sovereign immunity bars any claims directly 26 against the FBI, the Court should dismiss the FBI as a defendant. (Doc. 31-1 at 4). Defendant 27 contends that Plaintiff’s conclusory allegations that he has been under surveillance for 20 years and 1 viable claims. Id. at 6. Defendants argue the United States cannot be sued under the FTCA for 2 Plaintiff’s constitutional claims because it has not waived sovereign immunity, that Plaintiff’s 3 purported perjury claim cannot proceed under the FTCA, and that his claim for a violation of the 4 Administrative Procedure Act (“APA”) based on allegations that he was placed on “Terrorist and 5 Dangerous Target Watchlists” and under “surveillance for life” is unexhausted and fails to identify 6 any agency action that could serve as predicates to state an APA claim. Id. at 6-7. Defendants 7 further contend that to the extent Plaintiff seeks to assert claims for invasion of privacy, retaliation, 8 discrimination, and harassment, he fails to plausibly allege sufficient facts to state those claims. Id. 9 at 8-9. Lastly, Defendants contend that leave to amend is not warranted and should be denied 10 because Plaintiff cannot cure the defects in his complaint. Id. at 9-10. 11 In what the Court construes as Plaintiff’s untimely opposition to Defendants’ motion (see 12 Docs. 25, 35), Plaintiff contends he “can no longer proceed with this case[,]” that he is putting a 13 “hold on this case until further notice[,]” and that he “will continue this lawsuit another time” based 14 on allegations that he has been tortured and retaliated against by the FBI.3 (Doc. 35 at 1-2). 15 Plaintiff’s opposition largely is incoherent and rife with conclusory allegations that do not address 16 the merits of Defendants’ motion, including assertions of “attempted murder,” “chemical warfare” 17 against him, “[f]alse accusations, [d]iscrimination, corruption, conspiracy,” and invocation of 18 various international treaties and conventions, all without sufficient factual support. See id at 3-5. 19 For example, Plaintiff alleges that the FBI is looking for trouble with him in part because he “has 20 turrets syndrome.” Id. at 4-5. He repeatedly alleges that “[o]ur competing interests in this whole 21 case is ‘America[’]s sense of justice’” where the FBI “is calling [his] turrets syndrome criminal” 22

23 3 Plaintiff’s assertion that he is putting “a hold on this case until further notice” is improper as he has not moved to stay proceedings nor made a showing that a stay is warranted. “[T]he power 24 to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” 25 Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); Lockyer v. Mirant Corp, 398 F.3d 1098, 1109 (9th 26 Cir. 2005); accord CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962). Based on the Court’s assessment of the factors under CMAX, Inc. whether to grant a stay, the Court does not find a stay 27 warranted as Plaintiff has failed to show any hardship or inequity that he may suffer in being required to go forward or that the orderly course of justice in managing this litigation would benefit 1 and that “[e]very study in the history of turrets syndrome will tell you that [syndrome] is in fact not 2 a behavioral disorder. LOL. Fight statistics mother [f**ker].” See id. at 4-6. He alleges that his 3 clothing “is a remote controlled device being used to release chemical agents … onto [his] skin that 4 will kill [him]” and that he needs injunctive relief immediately. Id. at 9. He asserts that he is suing 5 the FBI for disregarding his torture complaint as “[t]hey cause harm” to him instead of helping him 6 and that in August 2022, he tried complaining countless times and “got disregarded.” Id. at 10. 7 Plaintiff also asserts numerous allegations and accusations of the undersigned’s handling of this 8 litigation. For example, Plaintiff asserts that he will “appeal this case to the ninth circuit if the 9 judge intentionally unconstitutionally dismisses [his] case” and tell “everybody” what the FBI and 10 judge did. Id. at 14. He asserts that the undersigned “has more than ignored [Plaintiff’s] motions 11 for TRO and Ex Parte hearings requests” and “completely disregarded [his] perilous conditions, 12 danger of life and death.” Id. at 20. He alleges that the undersigned is “[c]learly and obviously 13 biased in this whole case” as “a DOJ lawyer for many years” and “must recuse his position in this 14 matter[.]”4 Id. at 21. In a document entitled “Letter to the Clerk[’]s Office” attached to the end of 15 his construed opposition, Plaintiff reaffirms that he is “putting this case and lawsuit on hold until 16 further notice” as “these torture laws were made to protect [him] and save [his] life” but “they are 17 getting [him] killed instead.” Id. at 45. 18 In reply, Defendants assert that Plaintiff’s “recent filing indicates that he is abandoning his 19 lawsuit” which “provides another basis for dismissal of the action.” (Doc. 37 at 1). Defendants 20 contend that Plaintiff makes no attempt to dispute that the United States is the only proper defendant 21 for his claims under the FTCA and that any claims against the FBI as an agency should be 22

23 4 The Court takes no action on Plaintiff’s demand for recusal of the undersigned because he has neither filed a properly noticed recusal motion nor complied with 28 U.S.C. § 144, which 24 requires that a recusal motion be supported by “a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any 25 adverse party[.]” See 28 U.S.C. § 144; United States v. Sibla, 624 F.2d 864, 867-68 (9th Cir. 1980) (noting the requirement for the filing of a proper motion under either § 144 or § 455); e.g., United 26 States v. Scholl, 166 F.3d 964, 977 (9th Cir. 1999) (holding that judge sought to be recused was not 27 required to refer the recusal motion to another judge because “the § 144 affidavit was neither timely nor sufficient to trigger reassignment.”) (citing Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1 dismissed. Id. at 2. Defendants contend that Plaintiff’s opposition fails to meet his burden of 2 proving subject matter jurisdiction over any of his claims alleging torture and a conspiracy to harm 3 him and of proving a waiver of sovereign immunity for any claims based on constitutional 4 violations. Id. at 2-3. Defendants contend that Plaintiff makes no mention of compliance with the 5 administrative review process to pursue a claim under the APA. Id. at 3. Defendants further argue 6 Plaintiff’s request to put his lawsuit on hold justifies dismissal of the action. Id. at 4. 7 IV. Discussion 8 Plaintiff has failed to state any cognizable claims in both the operative complaint and the 9 lodged, first amended complaint. The Court analyzes the claims asserted in Plaintiff’s complaint 10 as set forth below before addressing Plaintiff’s motions for leave to amend and to file a 11 supplemental pleading and lodged first amended complaint. 12 A. Lack of Subject Matter Jurisdiction 13 1. Governing Authority 14 A complaint may be dismissed for lack of subject matter jurisdiction pursuant to Federal 15 Rule of Civil Procedure 12(b)(1). Fed. R. Civ. P. 12(b)(1). Under Rule 12(b)(1), a defendant may 16 challenge the plaintiff’s jurisdictional allegations by asserting a “facial” attack, which “accepts the 17 truth of the plaintiff’s allegations but asserts that they ‘are insufficient on their face to invoke federal 18 jurisdiction.’” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (quoting Safe Air for 19 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). The court “resolves a facial attack as it 20 would a motion to dismiss under Rule 12(b)(6): Accepting the plaintiff’s allegations as true and 21 drawing all reasonable inferences in the plaintiff’s favor, the court determines whether the 22 allegations are sufficient as a legal matter to invoke the court’s jurisdiction.” Id. (citing Pride v. 23 Correa, 719 F.3d 1130, 1133 (9th Cir. 2013)). The Court should not “assume the truth of legal 24 conclusions merely because they are cast in the form of factual allegations.” W. Mining Council v. 25 Watt, 643 F.2d 618, 624 (9th Cir. 1981). 26 Here, Plaintiff’s complaint asserts the Court has subject matter jurisdiction over his claims 27 brought against the federal government pursuant to federal question jurisdiction, specifically under 1 invokes [federal question jurisdiction under 28 U.S.C. § 1331] when she pleads a colorable claim 2 ‘arising under’ the Constitution or laws of the United States.” Arbaugh v. Y&H Corp., 546 U.S. 3 500, 513 (2006). However, a “claim invoking federal-question jurisdiction … may be dismissed 4 for want of subject-matter jurisdiction if it is not colorable, i.e., if it is ‘immaterial and made solely 5 for the purpose of obtaining jurisdiction’ or is ‘wholly insubstantial and frivolous.’” Id. at 413 n. 6 10 (quoting Bell v. Hood, 327 U.S. 678, 682-83 (1946)); Neitzke v. Williams, 490 U.S. 319, 327 n.6 7 (1989) (“A patently insubstantial complaint may be dismissed ... for want of subject-matter 8 jurisdiction under [Rule] 12(b)(1).”); Hagans v. Lavine, 415 U.S. 528, 536-37 (1974) (“[T]he 9 federal courts are without power to entertain claims otherwise within their jurisdiction if they are 10 so attenuated and unsubstantial as to be absolutely devoid of merit, wholly insubstantial, obviously 11 frivolous, plainly unsubstantial, or no longer open to discussion[.]”) (citations omitted). 12 2. Analysis 13 Plaintiff’s conclusory allegations suggesting that he has been tortured and surveilled by the 14 FBI since 2003 are without sufficient factual detail and are otherwise “wholly insubstantial and 15 frivolous” such that the Court does not find a basis to exercise subject matter jurisdiction over this 16 action. See Arbaugh, 546 U.S. at 513 n. 10; Denton v. Hernandez, 504 U.S. 25, 33 (1992) (“[A] 17 finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational 18 or the wholly incredible[.]”); O'Brien v. U.S. Dep't of Justice, 927 F. Supp. 382, 384-85 (D. Ariz. 19 1995) (“Plaintiff’s allegations [that defendants, including the U.S. Department of Justice, installed 20 electronic equipment on plaintiff’s residential telephone lines and contaminated her with “vile 21 germs”] are so bizarre and delusional that they are wholly insubstantial and cannot invoke this 22 Court's jurisdiction.”), aff’d, 76 F.3d 387 (9th Cir. 1996) (unpub.); Bivolarevic v. U.S. CIA, No. C 23 09-4620 SBA, 2010 WL 890147, at *2 (N.D. Cal. Mar. 8, 2010) (“Plaintiff alleges that the CIA has 24 subjected her to ‘voice to skull technology’ which it is using as a ‘mind control weapon.’ She has 25 demanded that the CIA cease ‘this constant direct speaking to [her] mind, and reading of [her] 26 mind.’ These are precisely the type of frivolous claims that are subject to dismissal for lack of 27 jurisdiction.”) (citations omitted)); Kolev v. Davidi, No. CV 08-5324-DOC(RC), 2008 WL 1 brought by citizens who suspect federal agencies have engaged in unlawful surveillance or 2 wiretapping activities based upon nothing but a personal belief as fantastic or delusional.”) 3 (citations and internal quotation marks omitted)); accord, McGinnis v. Freudenthal, 426 Fed. Appx. 4 625, 628 (10th Cir. 2011) (“Mr. McGinnis’ claims of electromagnetic torture [by government and 5 prison officials] are delusional and unsupported by any factual basis. The district court did not 6 abuse its discretion in dismissing these claims as frivolous.”); Newby v. Obama, 681 F. Supp. 2d 7 53, 56 (D. D.C. 2010) (“[Plaintiff’s] claims relating to alleged government surveillance and 8 harassment are of the sort of ‘bizarre conspiracy theory’ that warrant dismissal under Rule 12(b)(1). 9 For this reason, the Court concludes that the complaint is frivolous and that it does not have 10 jurisdiction over plaintiff’s claims.”); Curran v. Holder, 626 F. Supp. 2d 30, 33 (D. D.C. 11 2009) (same). 12 Like the cases cited above, Plaintiff’s complaint is based upon assertions and unverifiable, 13 speculative, and conclusory allegations that he has been the target of government surveillance and 14 torture. Indeed, his construed opposition to the motion does not bolster his case, as it confirms the 15 Court’s finding that his claims are based upon matters which are “so attenuated and unsubstantial 16 as to be absolutely devoid of merit,” Neitzke, 490 U.S. at 327, n. 6, such that the Court lacks subject 17 matter jurisdiction over his complaint, Lavine, 415 U.S. at 536-37. The Court therefore finds 18 dismissal of the complaint appropriate for lack of subject matter jurisdiction. 19 3. Sovereign Immunity 20 Separately, the Court finds Plaintiff’s assertion of multiple constitutional violations against 21 the United States and the FBI are barred under the doctrine of sovereign immunity. “The doctrine 22 of sovereign immunity applies to federal agencies and to federal employees acting within their 23 official capacities.” Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir. 1997); Balser v. Dep’t of Justice, 24 Office of U.S. Trustee, 327 F.3d 903, 907 (9th Cir. 2003) (“The United States, as a sovereign, is 25 immune from suit unless it has waived its immunity.”). “Absent a waiver, sovereign immunity 26 shields the Federal Government and its agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 27 (1993); see Rivera v. United States, 924 F.2d 948, 951 (9th Cir. 1991) (“The courts lack subject 1 United States has not waived sovereign immunity with respect to such claims.”). Therefore, 2 sovereign immunity bars Plaintiff’s action insofar as the complaint asserts constitutional violations 3 against the federal government unless a waiver of immunity exists. Baker v. United States, 817 4 F.2d 560, 562 (9th Cir. 1987) (“A party bringing a cause of action against the federal government 5 bears the burden of showing an unequivocal waiver of immunity.”), cert. denied, 487 U.S. 1204 6 (1988). 7 Here, because Plaintiff’s complaint asserts constitutional violations against only the federal 8 government and fails to allege any actions of wrongdoing by any individual agents or any 9 individuals acting under of state law, the Court does not find a waiver of sovereign immunity 10 pursuant to either Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), which enables a 11 plaintiff to sue individual federal officers for damages resulting from certain constitutional 12 violations, or 42 U.S.C. § 1983 identified such as to allow Plaintiff’s constitutional claims to 13 survive. See Gibson v. United States, 781 F.2d 1334, 1343 (9th Cir. 1986) (“[f]ederal officers 14 acting under federal authority are immune from suit under § 1983 unless the state or its agents 15 significantly participated in the challenged activity.”); Chatman v. U.S. Dep’t of the Navy, 846 Fed. 16 Appx. 543, 543-44 (9th Cir. 2021) (“federal government actors cannot be liable under § 1983[.]”). 17 Because Plaintiff has not alleged any valid waiver of immunity exists, and none is apparent, 18 Plaintiff’s constitutional claims against the federal government must be dismissed for lack of 19 subject matter jurisdiction. 20 B. Failure to State a Claim 21 Even if subject matter jurisdiction exists, liberally construing Plaintiff’s pro se complaint, 22 dismissal of the complaint nonetheless is warranted as Plaintiff fails to adequately plead any 23 cognizable claims. The Court addresses Plaintiff’s claims below. 24 1. FTCA Claim 25 a. Governing Authority 26 “It is elementary that ‘[t]he United States, as sovereign, is immune from suit save as it 27 consents to be sued…, and the terms of its consent to be sued in any court define the court’s 1 United States v. Sherwood, 312 U.S. 584, 586 (1941)). “The FTCA waives sovereign immunity 2 and grants federal district courts exclusive jurisdiction over claims against the United States for 3 ‘personal injury or death caused by the negligent or wrongful act or omission of a federal employee 4 acting within the scope of his office or employment.’” Leuthauser v. United States, 71 F.4th 1189, 5 1193 (9th Cir. 2023) (quoting Millbrook v. United States, 569 U.S. 50, 52 (2013)); Chadd v. United 6 States, 794 F.3d 1104, 1108 (9th Cir. 2015) (“The United States has waived its sovereign immunity 7 with regard to tort liability under the Federal Tort Claims Act ‘under circumstances where the 8 United States, if a private person, would be liable to the claimant in accordance with the law of the 9 place where the act or omission occurred.’”) (quoting 28 U.S.C. § 1346(b)(1)). The FTCA’s 10 “waiver of sovereign immunity ... is subject to an exception for certain intentional torts over which 11 the government reclaims immunity.” Leithauser, 71 F.4th at 1193 (citing 28 U.S.C. § 2680(h)). 12 However, the FTCA “contains an exception to this exception—a re-waiver of sovereign immunity.” 13 Id. (citing Foster v. United States, 522 F.3d 1071, 1074 (9th Cir. 2008)). This “so-called ‘law 14 enforcement proviso’ allows suits against the United States for ‘any claim arising ... out of assault, 15 battery, false imprisonment, false arrest, abuse of process, or malicious prosecution’ by 16 ‘investigative or law enforcement officers of the United States Government.’” Id. (quoting 28 17 U.S.C. § 2680(h)). The FTCA “defines an investigative or law enforcement officer as ‘any officer 18 of the United States who is empowered by law to execute searches, to seize evidence, or to make 19 arrests for violations of Federal law.’” Id. 20 Preliminarily, “federal district courts have jurisdiction to hear a plaintiff's tort claim under 21 the FTCA only after the plaintiff has exhausted the claim by submitting it to the appropriate federal 22 agency first.” Tritz v. U.S. Postal Serv., 721 F.3d 1133, 1140 (9th Cir. 2013) (citing Vacek v. U.S. 23 Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006)). “A claim is deemed presented for purposes of 24 [the FTCA] when a party files ‘(1) a written statement sufficiently describing the injury to enable 25 the agency to begin its own investigation, and (2) a sum certain damages claim.’” Castro v. United 26 States, No. 23-15841, 2024 WL 2892438, at *1 (9th Cir. June 10, 2024) (quoting Warren v. U.S. 27 Dep't of Interior Bureau of Land Mgmt., 724 F.2d 776, 780 (9th Cir. 1984) (en banc)); D.L. by & 1 once the relevant agency finally denies it in writing, or if the agency fails to make a final disposition 2 of the claim within six months of the claim's filing.”) (citing 28 U.S.C. § 2675(a)). 3 b. Analysis 4 The Court finds Plaintiff properly has exhausted his FTCA claim, as reflected in his claim 5 form and a letter from the FBI denying his personal injury claim, both of which acknowledge 6 Plaintiff’s $500 million dollar demand. See (Doc. 1 at 26-28). Indeed, Defendants do not purport 7 to challenge FTCA exhaustion. See (Docs. 30, 30-1, 37); Tritz, 721 F.3d at 1140. 8 Plaintiff’s FTCA claim seeks relief based on Defendants’ negligent and wrongful acts and 9 omissions of federal government agents and employees based on numerous harms, including “false 10 accusations, … negligent tort, retaliation, discrimination, abuse of discretion, civil rights violation, 11 unreasonable search and seizure, emotional distress, personal injury, … due process violation, … 12 [and] equal protection[.]” (Doc. 1 ¶ 38). 13 As set forth above, to the extent Plaintiff asserts constitutional tort violations under the 14 FTCA, those claims are barred under the doctrine of sovereign immunity as the FTCA does not 15 provide a waiver for such claims. See Meyer, 510 U.S. at 477-78 (“[T]he United States simply has 16 not rendered itself liable under [the FTCA] for constitutional tort claims.”); Jachetta v. United 17 States, 653 F.3d 898, 904 (9th Cir. 2011) (“[T]he FTCA does not provide a waiver of sovereign 18 immunity for ...claims” alleging deprivations of “federal constitutional rights”); Roundtree v. 19 United States, 40 F.3d 1036, 1038 (9th Cir. 1994) (“[I]t is pellucid that the United States cannot be 20 sued [under the FTCA] on the theory that there has been a violation of Roundtree's constitutional 21 rights.”); Rivera v. U.S., 924 F.2d 948, 951 (9th Cir. 1991) (same). Therefore, Plaintiff’s FTCA 22 claim seeking redress for his alleged constitutional violations are barred and must be dismissed for 23 lack of subject matter jurisdiction. Additionally, the FBI is not a proper defendant in an FTCA 24 claim as the FTCA only allows claims against the United States, and “an agency itself cannot be 25 sued under the FTCA.” F.D.I.C. v. Craft, 157 F.3d 697, 706 (9th Cir. 1998) (citing Shelton v. U.S. 26 Customs Serv., 565 F.2d 1140, 1141 (9th Cir. 1977)). 27 Plaintiff’s remaining allegations supporting his FTCA claim fail to state a claim. As noted 1 and mental suffering” based on the “administration or application of mind-altering substances” 2 since March 2003 and the “unlawful audio and video surveillance” against him “for life” are devoid 3 of sufficient factual support or rationale such that these allegations are frivolous and fail to state a 4 claim under the FTCA. Notwithstanding the “law enforcement proviso” pursuant to which the 5 United States “re-waives” sovereign immunity for certain types of torts (Leuthauser, 71 F.4th at 6 1193) arguably similar to some of those alleged by Plaintiff, he has not alleged coherent 7 circumstances, events, or actions of the federal government that establish tort liability under the 8 FTCA “where the United States, if a private person, would be liable to [Plaintiff] in accordance 9 with the law of the place where the act or omission occurred.” Chadd, 794 F.3d at 1108. Indeed, 10 his other bases of relief alleged in his FTCA claim, i.e., “government overdramatization and 11 reckless disregard for the truth” and “perjury” (Doc. 1 ¶ 38) do not appear to constitute cognizable 12 state law theories of liability. See Lambert v. Carneghi, 158 Cal. App. 4th 1120, 1143 n.9 (2008) 13 (“There is no civil cause of action for perjury; it is a criminal wrong only.”) (citation omitted). 14 Thus, Plaintiff has failed to state a claim under the FTCA. 15 2. APA Claim 16 Under the APA, “[a] person suffering legal wrong because of agency action, or adversely 17 affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial 18 review thereof.” 5 U.S.C. § 702. However, “the APA does not afford an implied grant of subject- 19 matter jurisdiction permitting federal judicial review of agency action.” See Califano v. Sanders, 20 430 U.S. 99, 107 (1977). “Agency action is subject to judicial review only when it is either: (1) 21 made reviewable by statute; or (2) a ‘final’ action ‘for which there is no other adequate remedy in 22 a court.’” Cabaccang v. U.S. Citizenship and Immigration Servs., 627 F.3d 1313, 1315 (9th Cir. 23 2010) (citing 5 U.S.C. § 704). 24 Plaintiff asserts an APA claim alleging only that his placement on “Terrorist and Dangerous 25 Target Watchlists” and Defendants’ “surveillance [of him] for life” constitutes a “suffering legal 26 wrong because of agency action[.]” (Doc. 1 ¶ 24). As Defendants correctly argue, Plaintiff’s APA 27 claim is defective as he has not pled any compliance with the administrative review process under 1 bringing grievances to federal court[.]” Great Old Broads for Wilderness v. Kimbell, 709 F.3d 836, 2 847 (9th Cir. 2013) (citing 5 U.S.C. § 704); see Cabaccang, 627 F.3d at 1316 (“Where relief is 3 available from an administrative agency, the plaintiff is ordinarily required to pursue that avenue 4 of redress before proceeding to the courts; and until that recourse is exhausted, suit is premature 5 and must be dismissed.”) (citing Reiter v. Cooper, 507 U.S. 258, 269 (1993)). 6 To the contrary, Plaintiff’s pleadings pertaining to Defendants’ alleged violation of the APA 7 in connection with their placement of Plaintiff on unidentified “Terrorist and Dangerous Target 8 Watchlists” contradict any implied allegation that he properly exhausted the claim prior to bringing 9 suit. Specifically, his claim form to the FBI seeking $500 million dollars alleges only that the FBI 10 wrongfully surveilled and conducted video surveillance of him, not that the agency improperly 11 placed Plaintiff on any watchlist. Thus, because Plaintiff’s alleged claim to the FBI is not 12 “sufficiently similar” to the purported APA claim here premised on his alleged improper placement 13 on a watchlist, the FBI was not on notice of the watchlist claim and did not have the opportunity to 14 consider and resolve it, as required for proper exhaustion. See Native Ecosystems v. Dombeack, 15 304 F.3d 886, 899 (9th Cir.2002) (exhaustion is accomplished only if the plaintiff’s appeal “taken 16 as a whole, provided sufficient notice to the [agency] to afford it the opportunity to rectify the 17 violations that the plaintiffs alleged.”). 18 Even had Plaintiff exhausted his APA claim, his vague and conclusory allegations 19 concerning the Defendants’ placement of him on a supposed watchlist lack sufficient factual 20 allegations from which any inference could be drawn that he has stated a cognizable claim to relief. 21 E.g., Dahlstrom v. United States, No. C24-641-RSM, 2025 WL 1149634, at *5 (W.D. Wash. Apr. 22 18, 2025) (dismissing the plaintiff’s APA claim based on allegations he “believes he is on a 23 ‘watchlist’ and ‘targeted’ because he of his status as a Roman Catholic, for his work in immigration 24 rights, and for prior complaints to DHS [citation omitted]. However, other than the two alleged 25 incidents in his complaint of once being sniffed by a dog and undergoing a single pat-down, 26 Plaintiff presents no other related facts from which this Court can possibly deduce that he is on any 27 sort of government ‘watchlist.’”). 1 3. State Law Claim for Invasion of Privacy 2 Plaintiff appears to assert a state law claim of invasion of privacy claim based on his 3 allegations that “allows [him] to recover damages for [] deprivation of [his] solitude and seclusion 4 and [] that [his] private life is publicly given, …for the harm resulting to [his] reputation from the 5 publicity[,] … for the harm to [his] reputation from the position in which [he is] placed” and 6 damages for emotional distress and humiliation. (Doc. 1 ¶ 46). 7 In California, there are two types of claims for invasion of privacy: “(1) public disclosure 8 of private facts, and (2) intrusion into private places, conversations or other matters.” Shulman v. 9 Group W Productions, Inc., 18 Cal. 4th 200, 214 (1998) (citations omitted). To state a claim for 10 public disclosure of private facts, a plaintiff must allege the public disclosure of a private fact which 11 would be offensive and objectionable to the reasonable person and which is not of legitimate public 12 concern. Id. (citations omitted). The elements of intrusion are “intrusion into a private place, 13 conversation or matter … in a manner highly offensive to a reasonable person.” Id. at 231. 14 Liberally construed, Plaintiff’s complaint fails to state a claim for invasion of privacy. His 15 claim based on the sole allegation that he is deprived of his solitude and seclusion and that his 16 private life is publicly given does not articulate any public disclosure of any private facts nor does 17 it show an intrusion into any private place, conversation, or defined matter of Plaintiff “in a manner 18 highly offensive to the reasonable person.” Shulman, 18 Cal. 4th at 214. Thus, Plaintiff fails to 19 state a claim for invasion of privacy. 20 Additionally, dismissal of Plaintiff’s state law claims is warranted given the Court’s lack of 21 subject matter jurisdiction over his non-cognizable federal claims. “When a district court ‘has 22 dismissed all claims over which it has original jurisdiction,’ it ‘may decline to exercise 23 supplemental jurisdiction’ over remaining state law claims.” Pell v. Nuñez, 99 F.4th 1128, 1135 24 (9th Cir. 2024) (quoting 28 U.S.C. § 1367(a)). Indeed, the Court generally “should decline the 25 exercise of jurisdiction” if “the federal-law claims have dropped out of the lawsuit in its early stages 26 and only state-law claims remain.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) 27 (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726-27 (1966)); see id. at 350 n.7 (“in 1 be considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, 2 and comity—will point toward declining to exercise jurisdiction over the remaining state-law 3 claims.”). 4 C. Leave to Amend 5 Rule 15 provides that “leave [to amend] shall be freely given when justice so requires.” 6 Fed. R. Civ. P. 15(2). However, district courts are only required to grant leave to amend if a 7 complaint can be saved. Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). When a complaint 8 cannot be cured by additional facts, leave to amend need not be provided. Doe v. United States, 58 9 F.3d 494, 397 (9th Cir. 1995). 10 As set forth above, Plaintiff’s complaint fails to state any claims as a matter of law and is 11 subject to dismissal. However, because Plaintiff may be able to cure the identified deficiencies 12 through additional factual allegations, the Court finds Plaintiff should be granted leave to amend. 13 Lopez, 203 F.3d at 1129. Accordingly, Plaintiff’s motions for leave to file an amended complaint 14 (Docs. 10, 15) will be granted. However, upon review of the lodged first amended complaint (Doc. 15 11), the Court finds that proposed pleading deficient for the same reasons as identified in this order. 16 Thus, Plaintiff will be directed to file a renewed first amended complaint compliant with this order. 17 Insofar as Plaintiff no longer seeks to pursue this action based on his assertion that he can no longer 18 proceed with this case, he may instead file a notice of voluntary dismissal pursuant to Federal Rule 19 of Civil Procedure 41(a)(1)(A)(i) as further detailed below. 20 If Plaintiff wishes to file a first amended complaint (“FAC”), any such amended complaint 21 should be brief (Fed. R. Civ. P. 8(a)) but it must state what each named defendant did that led to 22 the deprivation of Plaintiff’s rights (Iqbal, 556 U.S. at 678-79). Although accepted as true, the 23 “[f]actual allegation must be [sufficient] to raise a right to relief above the speculative level[.]” 24 Twombly, 550 U.S. at 555 (citations omitted). Additionally, Plaintiff may not change the nature 25 of this suit by adding new, unrelated claims in his FAC. George v. Smith, 507 F.3d 605, 607 (7th 26 Cir. 2007) (explaining no “buckshot” complaints permitted). 27 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 1 | action by filing a FAC, the Court cannot refer to a prior pleading in order to make an amended 2 | complaint complete. See Local Rule 220. The FAC must be complete in itself without reference 3 | tothe prior or superseded pleading. Once the FAC is filed, the original pleading no longer serves 4 | any function in the case. Thus, in the FAC, Plaintiff must re-plead all elements of his claims, 5 | including all relevant facts, even the ones not addressed by this order. 6 | V. Conclusion and Order 7 Based on the foregoing, IT IS HEREBY ORDERED that: 8 1. Plaintiff's motion for default judgment (Doc. 33) is DENIED; 9 2. Defendants United States of America and Federal Bureau of Investigation’s motion to 10 dismiss (Doc. 30) is GRANTED; 11 3. Defendant Federal Bureau of Investigation is DISMISSED from this action as an 12 immune and improper defendant under the Federal Tort Claims Act; 13 4. Plaintiff's complaint (Doc. 1) is DISMISSED; 14 5. Plaintiffs motions for leave to file an amended complaint (Docs. 10, 15) are 15 GRANTED; 16 6. Plaintiff SHALL FILE within 30 days from the date of service of this order either: 17 a. A renewed first amended complaint that remedies the deficiencies identified in 18 this order; or 19 b. In the alternative, notice of voluntary dismissal. Fed. R. Civ. P. 41(a)(1)(A)Q@). 20 Any failure by Plaintiff to comply with this order will result in the dismissal of this 21 | action with prejudice for failure to state a claim upon which relief may be granted. 22 | IT IS SO ORDERED. | Dated: _ October 14, 2025 | br 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 WW