(PC) Johnson v. Unknown FBI Agents

Filing 6

ORDER signed by Magistrate Judge Deborah Barnes on 06/06/2024 GRANTING the 2 Motion to Proceed IFP, DENYING the 3 Motion to Appoint Counsel and DIRECTING Plaintiff to file, within 30 days, either an amended complaint curing the deficiencies identified in this order, a notice of voluntary dismissal, or a notice of election to stand on the complaint as filed. (Spichka, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEVIN B. JOHNSON,

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Plaintiff,

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No. 2:23-cv-02622 DB P

v.

ORDER

UNKNOWN FBI AGENTS,

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Defendants.

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Plaintiff Kevin B. Johnson, a former inmate at the Monroe Detention Center, proceeds
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without counsel and seeks relief for alleged violations of his civil rights. This matter was referred
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to the undersigned by Local Rule 302. See 28 U.S.C. § 636(b)(1). Plaintiff’s complaint is before

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the court for screening. (ECF No. 1.) The complaint must be dismissed because its allegations do
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not state a claim. Plaintiff’s motion for appointment of counsel is denied.

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I.

In Forma Pauperis

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Plaintiff seeks to proceed in forma pauperis. (ECF No. 2.) The declaration makes the
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showing required by 28 U.S.C. § 1915(a). The motion is granted.
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II.

Screening Requirement

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Pursuant to 28 U.S.C. § 1915(e), the court must screen every in forma pauperis
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proceeding, and mut order dismissal of the case if it is “frivolous or malicious,” “fails to state a
claim on which relief may be granted,” or “seeks monetary relief against a defendant who is

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immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27

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(2000). A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may dismiss a claim as frivolous if it is based on an indisputably meritless

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legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a short and plain statement

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of the claim that shows the pleader is entitled to relief. Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 555 (2007). In order to state a cognizable claim, a complaint must contain more than “a

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formulaic recitation of the elements of a cause of action;” it must contain factual allegations

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sufficient “to raise a right to relief above the speculative level.” Id., 550 U.S. at 555. The facts

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alleged must “‘give the defendant fair notice of what the... claim is and the grounds upon which it

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rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555). In

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reviewing a complaint under this standard, the court accepts as true the non-conclusory

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allegations of the complaint and construes the pleading in the light most favorable to the plaintiff.

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See id.; Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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III.

Plaintiff’s Allegations
Plaintiff alleges unknown FBI agents staged a car accident involving plaintiff being rear

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ended at high speeds on July 13, 2020. (ECF No. 1 at 5.) Plaintiff went to the hospital on July 19th

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and his hand was swollen. (Id. at 6.)

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Plaintiff alleges the “FED’s” are using him like a “lab rat, test dummy” without his

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consent. (ECF No. 1 at 6.) They inflicted his work van with some sort of chemical agent that

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inflicted his body and allowed the FBI and local police the ability to follow him without him

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having a cell phone or computer to be tracked. (Id. at 6-7) Plaintiff filed a Freedom of

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Information Act request online in August of 2023 and has heard nothing from the FBI on the

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matter. (Id. at 7.)

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For relief, plaintiff seeks monetary damages and a variety of injunctive relief. (ECF No. 1

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at 7.) As related to the complaint’s allegations, plaintiff seeks to have a doctor determine what

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chemical agent was inflicted on him. (ECF No. 1 at 7.)
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IV.

Discussion
A “Bivens” action seeking damages for deprivation of plaintiff’s rights could potentially

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lie against an individual officer of the FBI. See Bivens v. Six Unknown Named Agents of Fed.

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Bureau of Narcotics, 403 U.S. 388 (1971); see also F.D.I.C. v. Meyer, 510 U.S. 471, 484-866

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(1994) (“Meyer”) (holding that Bivens action lies against federal agents, but not federal

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agencies). Here, however, plaintiff’s complaint does not name any individual officers as

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defendants. Instead, plaintiff alleges the individual defendants are unknown.

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Moreover, the complaint does not state a claim. Although the court can comprehend the

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allegations in this instance, the present allegations lack sufficient context and detail that would be

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necessary for them to proceed. The circumstances surrounding the allegations are not sufficiently

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set forth for the undersigned to determine whether any relief could be warranted.

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The undersigned notes plaintiff already proceeds in another case in this court against

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unknown FBI agents. See Johnson v. Unknown FBI Agents, No. 2:22-cv-01375-KJM-DB.

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However, it is not clear whether the present case allegedly involves different events and different

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unknown FBI agents. Because it is not absolutely clear that plaintiff cannot state a claim, plaintiff

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will be granted leave to file an amended complaint. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248

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(9th Cir. 1995); Fed. R. Civ. P. 15(a). An amended complaint must be complete in itself without

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reference to any prior pleading. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967); Local Rule

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220. The amended complaint should be titled “First Amended Complaint” and should reference

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the case number.

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If plaintiff does not wish to amend the complaint he may file a notice of voluntary

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dismissal, after which the action will be terminated by operation of law. Fed. R. Civ. P.

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41(a)(1)(A)(i). In the further alternative, plaintiff may elect to forego amendment and notify the

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court that he wishes to stand on his complaint. See Edwards v. Marin Park, Inc., 356 F.3d 1058,

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1064-65 (9th Cir. 2004). If the last option is chosen, the undersigned will issue findings and

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recommendations to dismiss this action, plaintiff will have an opportunity to object, and the

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matter will be decided by a district judge.

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Plaintiff’s motion to appoint counsel (ECF No. 3) will be denied. The United States
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Supreme Court has ruled that district courts lack authority to require counsel to represent indigent

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plaintiffs in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In

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certain exceptional circumstances, the district court may request the voluntary assistance of

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counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances such

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as lack of legal education and limited law library access do not establish exceptional

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circumstances that would warrant a request for voluntary assistance of counsel. In the present

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case, the court does not find the required exceptional circumstances.

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V.

Order

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For the reasons set forth above, IT IS ORDERED as follows:

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1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiff’s motion to appoint counsel (ECF No. 3) is denied.

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3. The Clerk’s Office shall send plaintiff a blank civil rights complaint form.

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4. Within thirty days from the date of service of this order, plaintiff must file one of the

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following:

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(a) An amended complaint curing the deficiencies identified in this order;

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(b) A notice of voluntary dismissal; or

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(c) A notice of election to stand on the complaint as filed.

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5.

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Failure to respond to this order will result in a recommendation that this action be
dismissed with prejudice for failure to obey a court order and failure to prosecute.

Dated: June 6, 2024

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DLB7
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