Robert Barrick v. Barack Obama et al

Filing 12

ORDER TO SHOW CAUSE Re: Lack of Prosecution by Magistrate Judge Alka Sagar.To date, Plaintiff has failed to file a First Amended Complaint or request an extension of time to do so. Accordingly, Plaintiff is ORDERED TO SHOW CAUSE, in writing, no later than February 21, 2017, why this action should not be dismissed with prejudice for failure to prosecute. (See Order for complete details) (Attachments: # 1 Court's November 28, 2016 Order, # 2 Notice of Dismissal (Blank)) (afe)

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UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

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) No. CV 16-01909-ODW (AS)
)
) ORDER DISMISSING COMPLAINT
)
)
) WITH LEAVE TO AMEND
)
)
)
)

Robert Barrick,

12

Plaintiff,
v.

13
14

BARRACK OBAMA, et al.,
Defendants.

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16
17

I. INTRODUCTION

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19

On

October

18,

2016,

pro

se

Plaintiff

Robert

Barrick

20

(“Plaintiff”), filed a Complaint pursuant to Bivens v. Six Unknown

21

Named Agents, 403 U.S. 388 (1971).

22

Complaint names as Defendants: (1) Barrack Obama, President of the

23

United States; (2) Kristie Canegallo; (3) Brian Deese; (4) Valerie B.

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Jarrett; (5) Loretta Lynch, Attorney General of the United States;

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(6) Brian Goo; (7) Doris Doe; (8) Roger Doe; (9) Lauren Doe; (10)

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Carol Doe; (11) Troy Riggs; (12) Valerie Snyder; (13) Matt Doe; (14)

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Sue Doe; (15) Amy Doe; (16) Twitter, Inc.; (17) and Does 1 through

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1

(Docket Entry No. 1).

The

1

10.

2

relief and compensatory damages.

(See

Compl.

1).

Plaintiff

seeks

declaratory

and

injunctive

(Compl. 3-4, 13).

3
4
5

For reasons discussed below, the Complaint is DISMISSED with
leave to amend. 1

6
7

II.

ALLEGATIONS OF THE COMPLAINT

8

The

9

Complaint

alleges

that

“[t]his

action

arises

under

the

10

First, Fourth and Fourteenth Amendments to the Constitution . . . the

11

Omnibus Crime Control and Safe Street Act of 1996, 18 U.S.C. §§ 2510-

12

2522

13

U.S.C.A. § 1983.” (Compl. at 3). 2

.

.

.,

Violation

of

State

Civil

Rights

and

Torts;

and

42

14

In support of these claims, Plaintiff alleges that Defendants

15
16

used

a

“government

drone”

to

insert

a

parasite

and

a

“chemical

17

corrosive” into various parts of Plaintiff’s body.

18

Once in Plaintiff’s body, the chemical corrosive allegedly resembled

19

a “disease,” which led Plaintiff to go to the emergency room and

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eventually “compromise[d] Plaintiff’s ability to walk.”

21

7, 10).

22

Plaintiff to prospective employers and interfered with Plaintiff’s

23

“modes of communication” by blocking e-mails, disabling functions on

(Compl. 5-7, 10).

(Id. at 5,

Plaintiff also alleges that Defendants “stigmatize[d]”

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25
26
27
28

1

Magistrate Judges may dismiss a complaint with leave to
amend without approval from the district judge.
McKeever v. Block,
932 F.2d 795, 798 (9th Cir. 1991).
2

Plaintiff cannot maintain a Bivens action for violations of
federal statutes, state civil rights and torts or actions against
state officials under 42 U.S.C. § 1983.
2

1

Plaintiff’s cellphone and Twitter account, and deleting his Twitter

2

account messages.

3

defamation campaign” through Twitter, accusing Plaintiff of rape,

4

murder,

5

Defendants allegedly dissuaded attorneys from representing Plaintiff

6

and destroyed evidence.

child

Defendants have also allegedly conducted a “mass

molestation,

and

assault.

(Id.

8-10).

Moreover,

(Id.).

7
8

III. STANDARD OF REVIEW

9
10

Under the provisions of the Prison Litigation Reform Act, a

11

district court shall sua sponte review and dismiss a complaint if

12

the court finds that it is (1) frivolous or malicious; (2) fails to

13

state

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monetary relief from a defendant immune from such relief.

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§ 1915A(a); see Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th

16

Cir. 2000) (en banc); Barren v. Harrington, 152 F.3d 1193, 1194 (9th

17

Cir. 1998).

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similarly provides that a court shall screen and dismiss a complaint

19

brought by any plaintiff – prisoner or non-prisoner – proceeding in

20

forma pauperis on these same grounds.

21

Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001); Lopez, 203 F.3d

22

at 1126 n.7, 1127.

a

claim

upon

which

relief

may

be

granted;

or

(3)

seeks

28 U.S.C.

The statute governing in forma pauperis proceedings

28 U.S.C. § 1915(e)(2)(B);

23
24

Under Federal Rule of Civil Procedure 12(b)(6), a trial court

25

may dismiss a claim sua sponte “where the claimant cannot possibly

26

win relief.”

27

Cir. 1987); see also Baker v. Director, U.S. Parole Comm’n, 916 F.2d

28

725, 726 (D.C. Cir. 1990) (per curiam) (adopting the Ninth Circuit’s

Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th

3

1

position

2

practical

3

efficient use of judicial resources”).

4

se in a civil rights case, the court must construe the pleadings

5

liberally and afford the plaintiff the benefit of any doubt.

6

Panahi v. Los Angeles Police Dep’t., 839 F.2d 621, 623 (9th Cir.

7

1988).

8

court may not, however, supply essential elements of a claim that

9

were not initially pled.

in

Omar

and

and

fully

noting

that

consistent

a

with

sua

sponte

plaintiff’s

dismissal
rights

and

“is
the

When a plaintiff appears pro

Karim-

In giving liberal interpretation to a pro se complaint, the

Ivey v. Bd. of Regents of Univ. of Alaska,

10

673 F.2d 266, 268 (9th Cir. 1982).

11

litigant leave to amend the complaint unless it is “absolutely clear

12

that

13

amendment.”

the

deficiencies

of

the

A court must give a pro se

complaint

could

not

be

cured

by

Karim-Panahi, 839 F.2d at 623.

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15

Dismissal for failure to state a claim is appropriate if a

16

complaint fails to proffer “enough facts to state a claim for relief

17

that

is

18

550

U.S.

19

(2009).

“A claim has facial plausibility when the plaintiff pleads

20

factual

content

21

inference that the defendant is liable for the misconduct alleged.”

22

Iqbal, 556 U.S. at 678; see also Hartmann v. Cal. Dep’t of Corr.

23

& Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013).

24

provide more than “labels and conclusions” or a “formulaic recitation

25

of the elements” of his claim.

26

556 U.S. at 678.

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[complaint] need only ‘give the defendant fair notice of what the

28

. . . claim is and the grounds upon which it rests.’”

plausible
544,

570

on

its

(2007);

that

face.”

Bell

Ashcroft

v.

allows

the

court

Atl.

Iqbal,

to

Corp.
556

draw

v.

U.S.

the

Twombly,
662,

678

reasonable

A plaintiff must

Twombly, 550 U.S. at 555; Iqbal,

However, “[s]pecific facts are not necessary; the

4

Erickson v.

1

Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550

2

U.S. at 555).

3
4

IV.

DISCUSSION

5
6

The

7

aforementioned

8

deficient and must be DISMISSED with leave to amend.

Court

has

reviewed

standards

and

Plaintiff’s
concludes

Complaint

that

the

under

Complaint

the
is

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10

A.

Plaintiff Cannot Seek Injunctive or Declaratory Relief

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12

A Bivens

action

can

only

be

maintained

for

monetary

damages

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against an officer of the United States.

14

F.3d 1090, 1093 (9th Cir. 2016); see also Bivens, 403 U.S. at 397.

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“[R]elief under Bivens does not encompass injunctive and declaratory

16

relief where, as here, the equitable relief sought requires official

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government action.”

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Plaintiff asserts a Bivens claim for injunctive or declaratory relief

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against the individual Defendants (see Compl. At 3-4), Plaintiff’s

20

claim fails.

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claims for relief must be DISMISSED.

Solida v. McKelvey, 820

Solida, 820 F.3d at 1093.

Thus, to the extent

Accordingly, the Complaint’s injunctive and declaratory

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23

B. The Complaint Fails To Satisfy Federal Rule of Civil Procedure 8

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25

As

currently

pled,

Plaintiff’

allegations

do

not

provide

26

sufficient detail to state a Bivens claim in accordance with Federal

27

Rule of Civil Procedure 8.

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“[a] pleading that states a claim for relief must contain: . . . a

Rule 8 provides, in relevant part, that

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1

short and plain statement of the claim showing that the pleader is

2

entitled to relief.”

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showing, rather than a blanket assertion, of entitlement to relief;

4

without some factual allegation in the complaint it is hard to see

5

how a claimant could satisfy the requirement of providing not only

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fair notice of the nature of the claim, but also grounds on which the

7

claim rests. Fed. R. Civ. P.

See Fed. R. Civ. P. 8.

8(a)(2);

Rule 8 requires a

Twombly, 550 U.S. 544 at 555.

8
9

Here, Plaintiff alleges that “Defendants” used a drone to insert

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“corrosive substances” into Plaintiff’s body; threatened Plaintiff;

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defamed Plaintiff on Twitter; “stigmatized” Plaintiff to prospective

12

employers; tracked Plaintiff with a drone; and dismantled functions

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on Plaintiff’s phone and Twitter account.

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the

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conducted these activities and fails to state a cognizable legal

16

theory.

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there are plausible grounds for relief, nor does it provide enough

18

facts

19

Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047,

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1059 (9th Cir. 2011).

Indeed, Plaintiff fails to name the defendants

21

who

activities

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Defendants cannot adequately respond to the Complaint without this

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basic information.

Complaint

does

not

(See Pet. 1-15).

for

the

carried

Defendants

out

the

allege

facts

(Compl. 5-13).
showing

which

However,
defendants

Consequently, the Complaint does not show

to

properly

respond

discussed

in

to

the

the

Complaint.

Complaint,

and

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25

A complaint is subject to dismissal for failure to state a claim

26

if “one cannot determine from the complaint who is being sued, for

27

what relief, and on what theory.”

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1178 (9th Cir. 1996); see also Chevalier v. Ray and Joan Kroc Corps.

McHenry v. Renne, 84 F.3d 1172,

6

1

Cmty. Ctr., No. C-11-4891 SBA, 2012 WL 2088819, *2 (N.D. Cal. June 8,

2

2012) (complaint that did not “identify which wrongs were committed

3

by which Defendant” violated Rule 8).

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5

C.

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Plaintiffs

Fail

To

Allege

Personal

Participation

By

Defendants In The Alleged Civil Rights Violations

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8

To demonstrate a civil rights violation against a defendant, a

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plaintiff must show either direct, personal participation or some

10

sufficient causal connection between a defendant’s conduct and the

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alleged constitutional violation.

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1205-06 (9th Cir. 2011) (as applied to a section 1983 claim); Kwai

13

Fun Wong v. United States, 373 F.3d 952, 966-67 (9th Cir. 2004)(as

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applied to a Bivens claim).

See Starr v. Baca, 652 F.3d 1202,

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Here, Plaintiff’s allegations against Defendants are conclusory

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17

and vague.

For example, throughout the Complaint, Plaintiff alleges

18

that

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discussed above. (Compl. 5-10).

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assertions rather than allegations of specific facts.

21

Iqbal, 556 U.S. 662, 676 (2009) (complaint must include specific

22

facts for a plausible claim).

23

that “Defendants deliberately inflicted emotional torture . . . ” or

24

“that

25

harass

26

identify how each individual defendant personally participated in

27

the purported constitutional deprivation.

28

642, 646 (9th Cir. 1989); see also Iqbal, 556 U.S. at 677 (in a

“Defendants

federal

engaged

in”

an

on

Twitter.

of

activities,

as

These statements are boiler plate
Ashcroft v.

Similarly, it is not enough to allege

employee-defendants

Plaintiff

assortment

have

hired

.

(Compl.

5,

9).

7

.

.

”

people

Plaintiff

to

must

Hansen v. Black, 885 F.2d

1

Bivens

2

notwithstanding, is only liable for his or her own misconduct”).

3

“[I]ndividual

4

Bivens suit

5

Wood v. Moss, 134 S. Ct. 2056, 2070 (2014) (quoting Iqbal, 556 U.S.

6

at 683).

action,

“each

Government

government
‘unless

official,

officials

they

‘cannot

themselves

acted

his

be

or

held

her

title

liable’

in

a

[unconstitutionally].’”

7

Therefore, to state a claim, Plaintiff “must ‘allege with at

8
9

least

some

degree

of

particularity

overt

acts

which

defendants

10

engaged in’ that support [his] claim.”

11

Agency,

12

Plaintiff

13

connection” between the conduct of each Defendant and the alleged

14

constitutional deprivation.

15

588 F.2d at 743-44.

733

F.2d

also

646,
must

649

(9th

allege

Jones v. Cmty. Redevelopment

Cir.

facts

1984)
that

(citation

establish

omitted).
a

“causal

See Hansen, 885 F.2d at 646; Johnson,

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17

D.

The Complaint Fails To State A Constitutional Violation

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19

A plaintiff bringing a Bivens action against a federal official

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must allege, at a minimum, that (1) an established constitutional or

21

federal statutory right was involved, and (2) the federal officer

22

violated that right.

23

see also Bivens, 403 U.S. at 396-97.

Although Plaintiff alleges that

24

“[t]his

First,

25

Amendments

26

conclusory allegations fail to state a constitutional violation.

action
to

Davis v. Passman, 442 U.S. 228, 243-45 (1979);

arises
the

under

the

Constitution”

(see

27
28
8

Fourth

Compl.

at

and
3),

Fourteenth
Plaintiff’s

1

E.

2

the Complaint

The Complaint Fails to Name Each Defendant in Both the Caption and Body of

3
4

Plaintiff’s

Complaint

violates

Fed.

R.

Civ.

P.

10(a),

which

5

requires naming each defendant in both the caption and body of the

6

complaint.

7

of his Complaint, Plaintiff does not individually name any Defendant

8

in

9

insufficient.

the

Here, despite naming multiple defendants in the caption

body

of

the

Complaint.

(See

Compl.

1-15).

This

is

10
11

F.

12

The Complaint Fails To State A Claim Against Defendants In Their
Official Capacity

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14

According

to

Complaint,

official

“Defendants

capacities.”

(Compl.

are

sued

in

both

at

4).

However,

15

personal

16

Plaintiff’s claims against Defendants in their official capacities,

17

and

the

fail to state a claim for relief.

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19

“Absent

a

waiver,

sovereign

immunity

shields

the

Federal

20

Government and its agencies from suit.”

21

471, 475 (1994).

22

be

23

official in his or her individual – not official – capacity.

24

Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1988); Consejo

25

de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d

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1157, 1173 (9th Cir. 2007); Gilbert v. DaGrossa, 756 F.2d 1455, 1458

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(9th Cir. 1985).

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in his or her official capacity would merely be another way of

brought

for

FDIC v. Meyer, 510 U.S.

Under Bivens, 403 U.S. at 388, an action may only
monetary

damages

against

a

responsible

federal
See

“This is because a Bivens suit against a defendant

9

1

pleading an action against the United States, which would be barred

2

by

3

Economico de Mexicali, 482 F.3d at 1173; see also Nurse v. U.S., 226

4

F.3d 996, 1004 (9th Cir. 2000); Mueller v. U.S., No. EDCV 08-0918-

5

DSF (MAN), 2009 WL 273283, *6 (C.D. Cal. 2009) (“It has long been

6

the rule that the bar of sovereign immunity cannot be avoided by

7

naming officers and employees of the United States as defendants.”)

8

(citing Gilbert, 756 F.2d at 1459).

the

doctrine

of

sovereign

immunity.”

Consejo

de

Desarrollo

9
10

Absent

any

waiver

of

the

United

States’

sovereign

immunity,

11

Plaintiff cannot state a claim against Defendants in their official

12

capacity.

13
14

G. Plaintiff Must Identify The Doe Defendants Before The Court May

15

Order Service Of Process

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17

The

Complaint

names

four

Doe

defendants.

A

plaintiff’s

18

complaint may name a fictitious defendant if the plaintiff does not

19

know the true identity of the defendant prior to the filing of the

20

complaint.

21

1999).

22

the United States Marshal upon any fictitious defendant, a plaintiff

23

must provide the Court identifying information sufficient to permit

24

the United States Marshal to effect service of process.

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plaintiff should generally be given an opportunity to discover the

26

names of unknown defendants.

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637, 642-43 (9th Cir. 1980).

See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir.

Nonetheless, before the Court can order service of process by

Thus, a

See Gillespie v. Civiletti, 629 F.2d

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10

1

It is premature to order discovery because Plaintiff’s claims

2

are

3

defendants.

4

that

5

identities of any Doe defendants if he pursues this action.

defective

he

for

reasons

unrelated

to

the

See Wakefield, 177 F.3d at 1163.

may

be

required

to

conduct

naming

of

fictitious

Plaintiff is advised

discovery

to

determine

the

6
7

Plaintiff is also advised that he must establish that every

8

Defendant,

including

9

involvement

in

the

every

civil

unknown

rights

defendant,

violations

alleged

had
and

10

defendant’s action or inaction caused the harm suffered.

11

personal
that

the

See Starr,

652 F.3d at 1207.

12

V. ORDER

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14
15

For

the

reasons

discussed

above,

the

Court

DISMISSES

the

16

Complaint WITH LEAVE TO AMEND.

If Plaintiff still wishes to pursue

17

this action, he shall file a First Amended Complaint no later than 30

18

days from the date of this Order.

19

cure the pleading defects discussed above and shall be complete in

20

itself without reference to the original Complaint.

21

(“Every amended pleading filed as a matter of right or allowed by

22

order of the Court shall be complete including exhibits.

23

pleading shall not refer to the prior, superseding pleading.”).

24

means that Plaintiff must allege and plead any viable claims in the

25

original Complaint again.

The First Amended Complaint must

See L.R. 15-2

The amended
This

26
27

In any amended complaint, Plaintiff should identify the nature

28

of each separate legal claim and confine his allegations to those
11

1

operative facts supporting each of his claims.

2

Rule of Civil Procedure 8(a), all that is required is a “short and

3

plain statement of the claim showing that the pleader is entitled to

4

relief.”

5

First Amended Complaint should be consistent with the authorities

6

discussed above.

7

include

8

allegations

9

strongly encouraged to once again utilize the standard civil rights

10

complaint form when filing any amended complaint, a copy of which is

11

attached.

However, Plaintiff is advised that the allegations in the

new

In addition, the First Amended Complaint may not

Defendants
in

the

or

claims

previously

///

14

///

15

not

filed

12
13

Pursuant to Federal

///

16
17
18
19
20
21
22
23
24
25
26
27
28
12

reasonably
complaints.

related

to

Plaintiff

the
is

1

Plaintiff is explicitly cautioned that failure to timely file a

2

First

3

described above, may result in a recommendation that this action, or

4

portions

5

prosecute and/or failure to comply with court orders.

6

Civ. P. 41(b).

7

wishes to pursue this action in its entirety or with respect to

8

particular Defendants or claims, he may voluntarily dismiss all or

9

any part of this action by filing a Notice of Dismissal in accordance

Amended

Complaint,

thereof,

be

or

failure

dismissed

with

to

correct

prejudice

the

for

deficiencies

failure

See Fed. R.

Plaintiff is further advised that if he no longer

10

with Federal Rule of Civil Procedure 41(a)(1).

11

Dismissal is attached for Plaintiff’s convenience.

A form Notice of

12
13

IT IS SO ORDERED.

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15

Dated: November 28, 2016

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17
18

to

___

/s/_____________
ALKA SAGAR
United States Magistrate Judge

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