1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 AL ZEINY, Case No. 19-cv-05806-HSG
8 Plaintiff, ORDER GRANTING MOTION TO DISMISS UNDER RULE 12(B)(6) 9 v. Re: Dkt. No. 11 10 UNITED STATES OF AMERICA, et al., 11 Defendants.
12 13 Pending before the Court is Defendants’ motion to dismiss Plaintiff Al Zeiny’s complaint 14 against the United States of America and the Central Intelligence Agency (“CIA”). See Dkt. No. 15 11. The Court finds this matter appropriate for disposition without oral argument and the matter is 16 deemed submitted. See Civil L.R. 7-1(b). For the reasons discussed below, the Court DENIES 17 Defendants’ motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1), but 18 GRANTS the motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). 19 I. BACKGROUND 20 Plaintiff alleges that in July 2010 he complained to Congressman Michael Honda about 21 “misconduct of corrupt CIA agents and operatives,” and afterward “he became a target of a stream 22 of nefarious tormenting and harassing acts.” See Dkt. No. 1. Plaintiff recounts a series of events 23 in which Defendants threatened him; conspired to have his employer terminate him; obstructed his 24 efforts to find further employment; tried to poison him; and tampered with his medications, all 25 over the course of many years and continuing through today. See id. Plaintiff alleges that as a 26 result of this repeated and systemic harassment, his physical and mental health deteriorated and he 27 has been hospitalized as a result. See id. Plaintiff lists seventeen individuals, including the 1 See id. at 6–7. Based on these allegations, Plaintiff brings a cause of action for infliction of 2 emotional distress and seeks an injunction against Defendants preventing “future retaliation and 3 revenge.” See id. 4 Plaintiff has alleged similar allegations in three other cases filed in this district in 2012, 5 2013, and 2017: Zeiny v. United States of America, No. 12-cv-2752 EJD (N.D. Cal.); Zeiny v. 6 United States of America, No. 5:13-cv-01220 EJD (N.D. Cal.); and Zeiny v. United States of 7 America, No. 17-cv-07023-HRL (N.D. Cal.). In each case, Plaintiff’s allegations have been 8 dismissed. Defendants now move to dismiss Plaintiff’s complaint in this action for lack under 9 subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a 10 claim under Federal Rule of Civil Procedure 12(b)(6). 11 II. LEGAL STANDARD 12 A. Rule 12(b)(1) 13 Federal Rule of Civil Procedure Rule 12(b)(1) allows a party to move to dismiss for lack of 14 subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) motion may be either 15 facial, where the inquiry is confined to the allegations in the complaint, or factual, where the court 16 is permitted to look beyond the complaint to extrinsic evidence. See Wolfe v. Strankman, 392 F.3d 17 358, 362 (9th Cir. 2004); Savage v. Glendale Union High School Dist. No. 205, 343 F.3d 1036, 18 1040 n.2 (9th Cir. 2003). A facial challenge “asserts that the allegations contained in a complaint 19 are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 20 F.3d 1035, 1039 (9th Cir. 2004). 21 B. Rule 12(b)(6) 22 A defendant may move to dismiss a complaint for failing to state a claim upon which relief 23 can be granted under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the 24 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 25 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 26 12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief that is plausible 27 on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible 1 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 2 In reviewing the plausibility of a complaint, courts “accept factual allegations in the 3 complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” 4 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nevertheless, 5 courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of 6 fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 7 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). 8 Additionally, “[p]leadings must be construed so as to do justice.” Fed. R. Civ. P. 8(e). 9 “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than 10 formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation 11 omitted). However, even a “liberal interpretation of a . . . complaint may not supply essential 12 elements of the claim that were not initially pled.” See Ivey v. Bd. of Regents of Univ. of Alaska, 13 673 F.2d 266, 268 (9th Cir. 1982). “[P]ro se litigants are bound by the rules of procedure,” 14 Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995), which require “a short and plain statement of 15 the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a). 16 Yet even if the court concludes that a 12(b)(6) motion should be granted, the “court should 17 grant leave to amend even if no request to amend the pleading was made, unless it determines that 18 the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 19 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quotation omitted). 20 III. DISCUSSION 21 A. Lack of Subject Matter Jurisdiction 22 Defendants first move to dismiss Plaintiff’s complaint for lack of subject-matter 23 jurisdiction. Defendants explain that courts routinely dismiss cases under the substantiality 24 doctrine where plaintiffs allege vague government conspiracies. See Dkt. No. 11 at 7–8.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 AL ZEINY, Case No. 19-cv-05806-HSG
8 Plaintiff, ORDER GRANTING MOTION TO DISMISS UNDER RULE 12(B)(6) 9 v. Re: Dkt. No. 11 10 UNITED STATES OF AMERICA, et al., 11 Defendants.
12 13 Pending before the Court is Defendants’ motion to dismiss Plaintiff Al Zeiny’s complaint 14 against the United States of America and the Central Intelligence Agency (“CIA”). See Dkt. No. 15 11. The Court finds this matter appropriate for disposition without oral argument and the matter is 16 deemed submitted. See Civil L.R. 7-1(b). For the reasons discussed below, the Court DENIES 17 Defendants’ motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1), but 18 GRANTS the motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). 19 I. BACKGROUND 20 Plaintiff alleges that in July 2010 he complained to Congressman Michael Honda about 21 “misconduct of corrupt CIA agents and operatives,” and afterward “he became a target of a stream 22 of nefarious tormenting and harassing acts.” See Dkt. No. 1. Plaintiff recounts a series of events 23 in which Defendants threatened him; conspired to have his employer terminate him; obstructed his 24 efforts to find further employment; tried to poison him; and tampered with his medications, all 25 over the course of many years and continuing through today. See id. Plaintiff alleges that as a 26 result of this repeated and systemic harassment, his physical and mental health deteriorated and he 27 has been hospitalized as a result. See id. Plaintiff lists seventeen individuals, including the 1 See id. at 6–7. Based on these allegations, Plaintiff brings a cause of action for infliction of 2 emotional distress and seeks an injunction against Defendants preventing “future retaliation and 3 revenge.” See id. 4 Plaintiff has alleged similar allegations in three other cases filed in this district in 2012, 5 2013, and 2017: Zeiny v. United States of America, No. 12-cv-2752 EJD (N.D. Cal.); Zeiny v. 6 United States of America, No. 5:13-cv-01220 EJD (N.D. Cal.); and Zeiny v. United States of 7 America, No. 17-cv-07023-HRL (N.D. Cal.). In each case, Plaintiff’s allegations have been 8 dismissed. Defendants now move to dismiss Plaintiff’s complaint in this action for lack under 9 subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a 10 claim under Federal Rule of Civil Procedure 12(b)(6). 11 II. LEGAL STANDARD 12 A. Rule 12(b)(1) 13 Federal Rule of Civil Procedure Rule 12(b)(1) allows a party to move to dismiss for lack of 14 subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) motion may be either 15 facial, where the inquiry is confined to the allegations in the complaint, or factual, where the court 16 is permitted to look beyond the complaint to extrinsic evidence. See Wolfe v. Strankman, 392 F.3d 17 358, 362 (9th Cir. 2004); Savage v. Glendale Union High School Dist. No. 205, 343 F.3d 1036, 18 1040 n.2 (9th Cir. 2003). A facial challenge “asserts that the allegations contained in a complaint 19 are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 20 F.3d 1035, 1039 (9th Cir. 2004). 21 B. Rule 12(b)(6) 22 A defendant may move to dismiss a complaint for failing to state a claim upon which relief 23 can be granted under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the 24 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 25 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 26 12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief that is plausible 27 on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible 1 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 2 In reviewing the plausibility of a complaint, courts “accept factual allegations in the 3 complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” 4 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nevertheless, 5 courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of 6 fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 7 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). 8 Additionally, “[p]leadings must be construed so as to do justice.” Fed. R. Civ. P. 8(e). 9 “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than 10 formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation 11 omitted). However, even a “liberal interpretation of a . . . complaint may not supply essential 12 elements of the claim that were not initially pled.” See Ivey v. Bd. of Regents of Univ. of Alaska, 13 673 F.2d 266, 268 (9th Cir. 1982). “[P]ro se litigants are bound by the rules of procedure,” 14 Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995), which require “a short and plain statement of 15 the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a). 16 Yet even if the court concludes that a 12(b)(6) motion should be granted, the “court should 17 grant leave to amend even if no request to amend the pleading was made, unless it determines that 18 the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 19 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quotation omitted). 20 III. DISCUSSION 21 A. Lack of Subject Matter Jurisdiction 22 Defendants first move to dismiss Plaintiff’s complaint for lack of subject-matter 23 jurisdiction. Defendants explain that courts routinely dismiss cases under the substantiality 24 doctrine where plaintiffs allege vague government conspiracies. See Dkt. No. 11 at 7–8. 25 “[F]ederal courts are without power to entertain claims otherwise within their jurisdiction if they 26 are so attenuated and unsubstantial as to be absolutely devoid of merit, wholly insubstantial, 27 obviously frivolous, plainly unsubstantial, or no longer open to discussion.” Cook v. Peter Kiewit 1 (1974)). To dismiss a complaint under the doctrine, “[t]he claim must be ‘so insubstantial, 2 implausible, foreclosed by prior decisions of this Court or otherwise completely devoid of merit as 3 not to involve a federal controversy within the jurisdiction of the District Court, whatever may be 4 the ultimate resolution of the federal issue on the merits.’” Id. (quoting Oneida Indian Nation v. 5 County of Oneida, 414 U.S. 661, 666 (1974)). Plaintiff objects to the suggestion that his case is 6 too far-fetched, or that his experiences are somehow products of mental illness. See Dkt. No. 13 at 7 8–9. The Court finds it improbable that Plaintiff’s action has any merit, but finds at this early 8 stage that not all his allegations are so fantastic that the suit can be dismissed out of hand as being 9 obviously frivolous. In contrast to the other cases Plaintiff has previously filed, both in his 10 complaint and in his opposition brief, Plaintiff has cited individual names and some dates of 11 events, suggesting that at least some of these allegations may reference identifiable events. The 12 Court therefore DENIES Defendant’s motion to dismiss under Rule 12(b)(1). 13 B. Failure to State a Claim 14 The Court notes at the outset that although Plaintiff alleges a tort claim, infliction of 15 emotional distress, against both the CIA and the United States, Plaintiff cannot properly plead a 16 claim against the CIA. “The United States is the only proper defendant in a[] [Federal Tort Claims 17 Act] action.” See Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995). 18 In any event, as presently drafted, Plaintiff presents a litany of complaints about serious 19 events that have been detrimental to his health, including death threats, poisoning, and medication 20 tampering. He also lists seventeen individuals who he believes are responsible for this conduct. 21 Yet critically, the complaint does not include any facts to plausibly connect this conduct to those 22 individuals or to Defendants. Plaintiff concludes, without explanation, that he knows the CIA was 23 involved, pointing to two sources he has within the CIA, including his wife. See Compl. at 6. 24 Plaintiff also points to an affidavit from his wife, Manal Elgaish-Elzeiny, who Plaintiff claims 25 “joined the CIA clandestine unit in December 2011.” Id. However, Ms. Elgaish-Elzeiny’s 26 affidavit does not substantiate any of the allegations or affirm that the CIA is responsible, or even 27 indicate that she is affiliated with the CIA. See Dkt. No. 3. Rather, she acknowledges only that 1 suggests that he cannot attribute specific conduct to specific individuals because “[i]t was a group 2 effort.” See Dkt. No. 13 at 9. To the extent Plaintiff attempts to tie some specific events to 3 specific individuals in his opposition brief, see Dkt. No. 13 at 14, Plaintiff may not amend his 4 complaint through an opposition, see Schneider v. California Dep't of Corr., 151 F.3d 1194, 1197 5 (9th Cir. 1998). 6 Even liberally construed, Plaintiff’s allegations that the CIA caused him mental and 7 physical distress are conclusory and speculative, and insufficient to state a claim on which relief 8 can be granted. “Although a pro se litigant . . . may be entitled to great leeway when the court 9 construes his pleadings, those pleadings nonetheless must meet some minimum threshold in 10 providing a defendant with notice of what it is that it allegedly did wrong.” Brazil v. United States 11 Dep’t of Navy, 66 F.3d 193, 199 (9th Cir. 1995). The Court acknowledges Plaintiff’s concern that 12 “being paranoid about something doesn’t mean that it is not happening.” See Dkt. No. 13 at 6. 13 However, Plaintiff still must comply with the Federal Rules of Civil Procedure and provide 14 sufficient factual support for his allegations. His belief that Defendants are involved in the 15 troubles he has faced over the past decade is not enough on its own to survive a motion to 16 dismiss.1 17 Additionally, to the extent Plaintiff styles a claim for injunctive relief as a separate cause of 18 action, see Compl. at 5, 22, Plaintiff fails to state a cognizable claim because an injunction is a 19 remedy, not an independent cause of action. See, e.g., Zeiny v. United States, No. 17-CV-07023- 20 HRL, 2018 WL 1367389, at *3 (N.D. Cal. Mar. 16, 2018) (citing cases). Plaintiff suggests that he 21 may seek an injunction under the Administrative Procedures Act (“APA”), but Plaintiff fails to 22 establish any basis for the APA’s applicability to this case. 23 IV. CONCLUSION 24 Accordingly, the Court GRANTS the motion to dismiss under Rule 12(b)(6). However, 25 1 In a footnote, Defendants also suggest that Plaintiff is barred from raising his claim for infliction 26 of emotional distress based on claim or issue preclusion because Plaintiff has already filed several other cases in this district. See Dkt. No. 11 at 8, n.3. Because the Court finds that dismissal is 27 otherwise warranted, the Court need not reach this argument or differentiate between what may be 1 despite these deficiencies, the Court cannot say at this stage that amending the complaint would be 2 || futile. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (“[A] pro se litigant is 3 || entitled to notice of the complaint’s deficiencies and an opportunity to amend prior to dismissal of 4 || the action.”). Plaintiff may still be able to allege sufficient facts to state a claim. Lopez, 203 F.3d 5 at 1130. Plaintiff shall file an amended complaint by no later than February 24, 2020. Failure to 6 || file an amended complaint by this deadline may result in the dismissal of the action in its entirety 7 || without further leave to amend. In addition, Plaintiff's amended complaint will be dismissed if he 8 || does not correct the deficiencies the Court has identified in this order. 9 IT IS SO ORDERED. 10 || Dated: 1/30/2020 Abupwl 5 HAYWOOD S. GILLIAM, JR. 12 United States District Judge
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