Fisher v. Federal Bureau of Investigation

Filing 6

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND and REQUIRING Plaintiff to pay filing fee or to file an IFP Application signed by Magistrate Judge Stanley A Boone on 4/8/2013. (Amended Complaint and Motion for IFP due by 5/13/2013). (Attachments: # 1 IFP Application)(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GARY DALE BARGER,

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Plaintiff,

Case No. 1:13-cv-00414-LJO-SAB
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

v.
FEDERAL BUREAU OF
INVESTIGATION,

ORDER REQUIRING PLAINTIF TO PAY
FILING FEE OR TO FILE APPLICATION TO
PROCEED IN FORMA PAUPERIS

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Defendant.

RESPONSE DUE WITHIN 30 DAYS

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Plaintiff Gary Dale Barger (“Plaintiff”) is a state prisoner proceeding pro se in this action

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against Defendant Federal Bureau of Investigation (“Defendant”). For the reasons set forth

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below, the Court will dismiss Plaintiff’s complaint with leave to amend and order Plaintiff to pay

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the filing fee for this action or file an application to proceed in forma pauperis.

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I.

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SCREENING

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The Court must screen all complaints “in which a prisoner seeks redress from a

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governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a).

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“On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of

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the complaint, if the complaint ... is frivolous, malicious, or fails to state a claim upon which

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relief may be granted; or ... seeks monetary relief from a defendant who is immune from such
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relief.” 28 U.S.C. § 1915A(b).

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Plaintiff’s three page complaint is entitled “United States Lawsuit Under U.S. Law Title 5

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U.S.C. § 552(a)(4)(B) Freedom of Information Act Withholding Information.” (Compl. 1.)

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Plaintiff alleges that he received an inadequate response to his request for information under the

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Freedom of Information Act (“FOIA”). (Compl. 1) It is unclear what Plaintiff requested, who he

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made the request to or what response he received. However, Plaintiff vaguely alleges that his

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request “is not an invasion of personal privacy of a 3rd party.” (Compl. 1 (underlining in

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original).) Plaintiff accuses Defendant of “dragging their feet” and claims that “what [he is]

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looking for is the source and nature of the investigation.” (Compl. 2.) Plaintiff provides no

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further details regarding this “investigation.”
Under “Relief Sought,” Plaintiff identifies himself as “the legal heir to the Hell’s Angel
M/C.” (Compl. 2.) Plaintiff further writes:

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It is my belief that I seek the truth in the information that I am
looking for and in 16 pages given to me it (information not once)
gave me any indication of who the leaders were, the x-president
was publically known to having a recent case out of where I chose
to run the Hell’s Angels Motorcycle Clubs functions in Ventura
California.

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Plaintiff seeks $100,000.00 “for lack of information under 5 U.S.C. §

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(Compl. 2-3.)

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552(a)(4)(B). (Compl. 3.)

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“The FOIA, generally, provides for the mandatory disclosure of information held by

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federal agencies, unless the requested material is exempt from mandatory disclosure by one of the

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nine exemption provisions in the FOIA.” St. Michael’s Convalescent Hospital v. State of Cal.,

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643 F.2d 1369, 1372 (9th Cir. 1981). Under 5 U.S.C. § 552(a)(4)(B), a person making a FOIA

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request may file a complaint in district court to enjoin an agency from withholding records and

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order the production of any records improperly withheld from the complainant.

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Plaintiff’s complaint fails to clearly allege (1) whether Plaintiff made a FOIA request, (2)

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to whom Plaintiff sent the FOIA request, (3) what information Plaintiff requested in his FOIA

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request, (4) what response, if any, Plaintiff received from his FOIA request and (5) how the

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federal agency’s response to Plaintiff’s FOIA request was improper. The Court will dismiss
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Plaintiff’s complaint with leave to file an amended complaint that provides the necessary details

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outlined above.

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Moreover, Plaintiff seeks $100,000 in monetary damages, but monetary damages are not

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authorized under FOIA. O’Toole v. IRS, 52 Fed. Appx. 961, 962 (9th Cir. 2002). Plaintiff’s

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complaint does not clearly ask for any other form of relief. Accordingly, Plaintiff’s complaint

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does not state a valid FOIA claim. Id. If Plaintiff opts to amend, he must seek relief that is

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available under FOIA, e.g., an order enjoining the federal agency from withholding records

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sought by Plaintiff.

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II.

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FILING FEES

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Plaintiff has failed to pay the filing fee in this action and did not file an application to

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proceed in forma pauperis without prepayment of his filing fee. Accordingly, the Court will order

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Plaintiff to pay his filing fee or to file an application to proceed in forma pauperis within thirty

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days of the date of this order. Plaintiff is forewarned that if he fails to pay the filing fee and does

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not file an application to proceed in forma pauperis, the Court will dismiss this action without

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prejudice for failure to pay the filing fee.

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III.

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CONCLUSION AND ORDER

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Based upon the foregoing, the Court finds that Plaintiff’s complaint fails to state a claim

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upon which relief may be granted. Plaintiff’s complaint will be dismissed with leave to amend.

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If Plaintiff fails to file an amended complaint, this action will be dismissed with prejudice.

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Moreover, Plaintiff has failed to pay the filing fee in this action. If Plaintiff fails to pay

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the filing fee and fails to file an application to proceed in forma pauperis, the Court will dismiss

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this action without prejudice for failing to pay the filing fee.

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Accordingly, it is HEREBY ORDERED that:

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Plaintiff’s complaint is dismissed, with leave to amend, for failure to state a claim;

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2.

Plaintiff shall file an amended complaint within thirty (30) days of the date of this

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order;
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Within thirty (30) days of the date of this order, Plaintiff shall either (1) pay the

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$350.00 filing fee for this action, or (2) file an application to proceed in forma

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pauperis without prepayment of the fee; and

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The Clerk of the Court is directed to forward an in forma pauperis application to

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Plaintiff.

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IT IS SO ORDERED.

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Dated:
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April 8, 2013

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DEAC_Signature-END:

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_

UNITED STATES MAGISTRATE JUDGE
i1eed4

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