Cohens v. United States Federal Bureau of Investigation

Filing 18

Order granting 9 Motion to Dismiss. Signed by Judge James Donato on March 21, 2017. (jdlc1S, COURT STAFF) (Filed on 3/21/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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Plaintiff,

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Case No. 16-cv-03665-JD

EDWIN J. COHENS,

ORDER RE MOTION TO DISMISS

v.

Re: Dkt. No. 9

UNITED STATES FEDERAL BUREAU
OF INVESTIGATION,

United States District Court
Northern District of California

Defendant.
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Pro se plaintiff Edwin J. Cohens filed a complaint against the United States Federal Bureau

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of Investigation (“FBI”) entitled “FOIA Request Under Freedom of Information Act.” Dkt. No. 1.

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The FBI moved to dismiss for failure to state a claim and for failure to exhaust administrative

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remedies. Dkt. No. 9. The motion is granted with leave to amend.

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DISCUSSION
The Freedom of Information Act (“FOIA”) requires a federal agency, upon a request for

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records that reasonably describes documents held by that agency, to make those documents

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available to the requester unless an exemption applies. 5 U.S.C. §§ 552(a)(3), (b). Before seeking

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judicial review, a plaintiff must exhaust his or her administrative remedies by requesting specific

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information in accordance with administrative procedures and having that request improperly

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refused. In re Steele, 799 F.2d 461, 465-66 (9th Cir. 1986). Following exhaustion, the FOIA

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confers jurisdiction on district courts “to enjoin the agency from withholding agency records and

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to order the production of any agency records improperly withheld.” 5 U.S.C. § 552(a)(4)(B).

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Under this provision, “federal jurisdiction is dependent on a showing that an agency has

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(1) ‘improperly’ (2) ‘withheld’ (3) ‘agency records.’” U.S. Dept. of Justice v. Tax Analysts, 492

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U.S. 136, 142 (1989) (quoting Kissinger v. Reporters Comm. for Freedom of Press, 445 U.S. 136,

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150 (1980)). Unless each of these criteria is met, a district court cannot force an agency to comply

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with the FOIA’s disclosure requirements. Id.

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Cohens’ complaint is not sound for several reasons. First and foremost, it amounts to an
initial request for information rather than a plausible claim that the FBI improperly denied a valid

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request. Dkt. No. 1. And the specific requests set out in the complaint are not entirely coherent.

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For example, Cohens “seeks the release of all records the F.B.I. are [sic] in possession of that

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involve the plaintiff Edwin Cohens…or any other code names the F.B.I. may have used,” followed

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by questions such as “what is the name of the [] device you use for sleep deprivation of the

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plaintiff?” and what information did “people used as snitches/informants against him” provide?

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Id. at 2-3. The balance of the 25-page complaint consists mostly of two internet articles entitled

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United States District Court
Northern District of California

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“The FBI Informant Who Mounted a Sting Operation against the FBI” and “Barack Obama’s

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Secret Terrorist-Tracking System, by the Numbers.” Id. at 5-23. There are no allegations that

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Cohens made a request to the FBI, that a request was denied, or that records were improperly

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withheld.

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This is enough to dismiss the complaint. The Court will give Cohens one opportunity to

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amend to state a plausible FOIA claim mainly because he said in his opposition brief that the FBI

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denied his FOIA appeal in a May 26, 2016 letter. Dkt. No. 15 at 1-3, Exh. A. The Court is

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reluctant to terminate the case until Cohens has a chance to allege how this might state a claim

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against the FBI. Cohens is advised that, while pro se complaints should be “liberally construed,”

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pro se litigants must still provide defendants with notice of what they allegedly did wrong and

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plead the essential factual elements of a claim for relief. See Erickson v. Pardus, 551 U.S. 89, 93-

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94 (2007) (internal quotation omitted); Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

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Cohens must, at a minimum, allege facts about what agency records were requested and which

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records have been wrongfully withheld. See Tax Analysts, 492 U.S. at 142. Cohens should also

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be cognizant of the FBI’s representation that it cannot provide records that would “confirm or

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deny an individual’s placement on any government watch list” under 5 U.S.C. § 552a(j)(2) and

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5 U.S.C. § 552(b)(7)(E). See Dkt. No. 15 at 2, Exh. A.

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Cohens has until April 14, 2017 to file an amended complaint. He may not add new

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claims or defendants. Cohens is encouraged to consult with the Federal Pro Bono Project’s Legal

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Help Center in either of the Oakland or San Francisco federal courthouses for assistance. The San

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Francisco Legal Help Center office is located in Room 2796 on the 15th floor at 450 Golden Gate

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Avenue, San Francisco, CA 94102. The Oakland office is located in Room 470-S on the 4th floor

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at 1301 Clay Street, Oakland, CA 94612. Appointments can be made by calling [phone]

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or signing up in the appointment book located outside.

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IT IS SO ORDERED.
Dated: March 21, 2017

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United States District Court
Northern District of California

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JAMES DONATO
United States District Judge

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