Flores v. United States of America, Federal Bureau of Investigations (FBI)

Filing 4

ORDER DISMISSING COMPLAINT AND DENYING AS MOOT PLAINTIFF'S APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS. Signed by JUDGE DERRICK K. WATSON on 12/15/2015. ~ The Complaint is DISMISSED without leave to amend, and the Application is DENIED as moot. The Clerk of Court is directed to close the case file. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participant (Xavier Flores) not registered to receive electronic notifications were served by first class mail on 12/16/2015

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I

CIVIL NO. 15-00515 DKW-RLP

XAVIER FLORES,
Plaintiff,
vs.

UNITED STATES OF AMERICA,
FEDERAL BUREAU OF
INVESTIGATION,

ORDER DISMISSING COMPLAINT
AND DENYING AS MOOT
PLAINTIFF’S APPLICATION TO
PROCEED WITHOUT
PREPAYMENT OF FEES OR COSTS

Defendants.

ORDER DISMISSING COMPLAINT AND
DENYING AS MOOT PLAINTIFF’S APPLICATION
TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS
INTRODUCTION
On December 11, 2015, Plaintiff pro se Xavier Flores filed a Complaint and
Application to Proceed in District Court Without Prepaying Fees or Costs
(“Application”). The Complaint attempts to assert claims against the United States
and the Federal Bureau of Investigation (“FBI”). Because Flores’ claims are barred
by the doctrine of sovereign immunity, and do not satisfy Rule 12(b)(6), the Court
DISMISSES the complaint with prejudice and DENIES the Application as moot.

STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e), the Court subjects every in forma pauperis
proceeding to mandatory screening and orders the 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 immune from such relief.” 28
U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (2000) (stating that
28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss
an in forma pauperis complaint that fails to state a claim).
Flores is proceeding pro se, and, therefore, the Court liberally construes his
pleadings. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The
Supreme Court has instructed the federal courts to liberally construe the ‘inartful
pleading’ of pro se litigants.”) (citing Boag v. MacDougall, 454 U.S. 364, 365
(1982) (per curiam)). The Court also recognizes that “[u]nless it is absolutely clear
that no amendment can cure the defect . . . a pro se litigant is entitled to notice of the
complaint’s deficiencies and an opportunity to amend prior to dismissal of the
action.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995). Nevertheless,
the Court may dismiss a complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) on its own motion. See Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991
(9th Cir. 1987) (“A trial court may dismiss a claim sua sponte under [Rule] 12(b)(6).
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Such a dismissal may be made without notice where the claimant cannot possibly
win relief.”); Ricotta v. Cal., 4 F. Supp. 2d 961, 968 n.7 (S.D. Cal. 1998) (“The
Court can dismiss a claim sua sponte for a Defendant who has not filed a motion to
dismiss under Fed. R. Civ. P. 12(b)(6).”).
A plaintiff must allege “sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also
Weber v. Dep’t of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This
tenet—that the court must accept as true all of the allegations contained in the
complaint—“is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at
555). Rather, “[a] claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. at 1949 (citing Twombly, 550 U.S. at 556).
In other words, “the factual allegations that are taken as true must plausibly suggest
an entitlement to relief, such that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued litigation.” Starr v. Baca, 652
F.3d 1202, 1216 (9th Cir. 2011). Factual allegations that only permit the court to
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infer “the mere possibility of misconduct” do not show that the pleader is entitled to
relief as required by Rule 8. Iqbal, 556 U.S. at 679.
Rule 8 mandates that a complaint include a “short and plain statement of the
claim.” Fed. R. Civ. P. 8(a)(2). “[E]ach allegation must be simple, concise, and
direct.” Fed. R. Civ. P. 8(d)(1). A complaint that is so confusing that its “‘true
substance, if any, is well disguised’” may be dismissed for failure to satisfy Rule 8.
Hearns v. San Bernardino Police Dep’t, 530 F.3d 1124, 1131 (9th Cir. 2008)
(quoting Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969)). A
district court may dismiss a complaint for failure to comply with Rule 8 where the
complaint fails to provide defendants with fair notice of the wrongs they have
allegedly committed. See McHenry, 84 F.3d at 1178-80 (affirming dismissal of
complaint where “one cannot determine from the complaint who is being sued, for
what relief, and on what theory, with enough detail to guide discovery”).
Claims may also be dismissed sua sponte where the Court does not have
federal subject matter jurisdiction. Franklin v. Murphy, 745 F.2d 1221, 1227 n.6
(9th Cir. 1984); see also Fed. R. Civ. P. 12(h)(3); Grupo Dataflux v. Atlas Global
Grp., L.P., 541 U.S. 567, 593 (2004) (“[I]t is the obligation of both the district court
and counsel to be alert to jurisdictional requirements.”); Kuntz v. Lamar Corp., 385
F.3d 1177, 1183 n.7 (“A federal court lacks subject matter jurisdiction over an
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unconsented suit against the United States.”). Lack of subject matter jurisdiction
may be raised at any time. Id.
DISCUSSION
Upon review of the Complaint and documents attached thereto, the Court
finds that Flores fails to establish this Court’s jurisdiction over this matter and to
state a claim upon which relief may be granted. Flores states that he attempted to
submit a hand-written report to the FBI field office in Kapolei, Hawaii, but was told
by an unnamed duty agent that, “I will need to have a typewriter format as per F.B.I.
procedure.” Complaint at 3. Flores also alleges that he has a “Tentative Work
agreement” with “the U.S. Government and the U.S. Business Community,” and
that the “DOJ-National Security Department should have a copy.” Id. Littered
throughout the Complaint are vague allegations relating to foreign intelligence
operations, cyber-based attacks, and espionage. These incoherent assertions,
according to Flores, entitle him to ten million dollars, which “can only be used to
purchase housing, armored car, food, [and] education purposes.” Complaint at 5.
The Court previously dismissed another complaint filed by Flores against
Assistant United States Attorney Thomas Brady, which also referenced a “work

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agreement” with the United States. See Flores v. Brady, Civil No. 15-408
DKW-RLP (Dkt. No. 6; 10/14/15 Order).1
Despite the Court’s prior instruction, Flores again brings claims for damages
against an agency of the United States, based on an alleged unsigned “work
agreement,” which appears neither authentic nor enforceable. See Exs. B, C, D, E,
and F attached to Complaint. As the Court explained in the order of dismissal in
Flores v. Brady, Civil No. 15-408 DKW-RLP (“10/14/15 Order”), such claims
against the United States and its agencies are barred by the doctrine of sovereign
immunity. See 10/14/15 Order at 9-10. Any lawsuit against an agency of the
United States or against an officer of the United States in his or her official capacity
is considered an action against the United States. Sierra Club v. Whitman, 268 F.3d
898, 901 (9th Cir. 2001); see also Balser v. Dep’t of Justice, Office of U.S. Tr., 327
F.3d 903, 907 (9th Cir. 2003) (holding that sovereign immunity protects the
Department of Justice). The United States, as a sovereign, is immune from suit

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In that case, Flores alleged that AUSA Brady would not investigate certain matters relating to
“national security” or let Flores speak to Florence Nakakuni, United States Attorney for the
District of Hawai‘i. The complaint in Civil No. 15-408 DKW-RLP alleged that: “This action is
against my work agreement. . . . It’s been my experience that when these public officials action
therein (sic), are a result of them conspire to do harm and questionable intents.” Flores v. Brady,
Civil No. 15-408 (Dkt. No. 1). The Court dismissed that complaint for lack of subject matter
jurisdiction and explained to Flores that the federal defendants were immune from suit and that his
allegations lacked facial plausibility. Flores v. Brady, Civil No. 15-408 DKW-RLP (Dkt. No. 6;
10/14/15 Order).

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unless it has waived its immunity. Because there is no evidence or allegation that
the United States has done so here, the Court lacks subject matter jurisdiction over
the claim. Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999); McCarthy v.
United States, 850 F.2d 558, 560 (9th Cir. 1998).
Second, the Court finds that based on even the most liberal construction of the
Complaint, Flores has identified no source of any legal right that would entitle him
to any relief against the FBI or the United States. To the extent he alleges that the
FBI owes him ten million dollars because it refused to accept his hand-written
report, he fails to state a claim upon which relief can be granted by this Court. See
Erum v. County of Kauai, 2008 WL 763231, at * 5 (D. Haw. Mar. 20, 2008)
(“Individuals’ First Amendment right to petition their government is not mirrored in
a governmental obligation to respond to the exercise of that right.”) (citing Minn.
State Bd. for Comm. Colls. v. Knight, 465 U.S. 271, 285 (1984) (“Nothing in the
First Amendment or in this Court’s case law interpreting it suggests that the rights to
speak, associate, and petition require government policymakers to listen or respond
to individuals’ communications on public issues.”); Smith v. Arkansas State
Highway Employees, Local 1315, 441 U.S. 463, 465 (1979) (“But the First
Amendment does not impose any affirmative obligation on the government to listen,
to respond or, in this context, to recognize the association and bargain with it.”); cf.
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DeShaney v. Winnebago Country Dept. of Soc. Servs., 489 U.S. 189, 195-96 (noting
that the Fourteenth Amendment generally confers no affirmative obligations on the
Government)). Accordingly, Flores does not allege “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)); see also Weber v. Dep’t of Veterans Affairs, 521 F.3d 1061, 1065
(9th Cir. 2008). In sum, even assuming the truth of the statements set forth in the
Complaint, these allegations fail to state claims upon which this Court may grant
relief.
Having screened the Complaint, the Court DISMISSES it and DENIES the
Application as moot. Because (1) defendants are immune from suit and the Court is
without subject matter jurisdiction, and (2) because Flores has failed to assert a
plausible claim for relief, the Court finds that granting Flores leave to amend his
Complaint would be futile—no amendment would remedy his inability to assert
these claims.

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CONCLUSION
Based upon the foregoing, the Complaint is DISMISSED without leave to
amend, and the Application is DENIED as moot. The Clerk of Court is directed to
close the case file.
IT IS SO ORDERED.
DATED: December 15, 2015 at Honolulu, Hawai’i.

Xavier Flores v. United States of America, et al.; Civil No. 15-00515 DKW-RLP;
ORDER DISMISSING COMPLAINT AND DENYING AS MOOT
PLAINTIFF’S APPLICATION TO PROCEED WITHOUT PREPAYMENT
OF FEES OR COSTS

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