(PC) Johnson v. Unknown FBI Agents
Filing
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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
john2622.scrn
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