Flores v. U.S. Department of State

Filing 3

ORDER DISMISSING COMPLAINT, DENYING AS MOOT PLAINTIFF'S APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS, AND DENYING PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL. Signed by JUDGE DERRICK K. WATSON on 1/8/2016. ~ The Complaint is DISMISSED without leave to amend, the Application is DENIED as moot, and the request for the appointment of counsel is DENIED. The Clerk of Court is directed to close the case file. (ecs, )CERT IFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

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

CIVIL NO. 16-00009 DKW-RLP

XAVIER FLORES,
Plaintiff,

ORDER DISMISSING COMPLAINT,
DENYING AS MOOT PLAINTIFF’S
APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF FEES
OR COSTS, AND DENYING
PLAINTIFF’S REQUEST FOR
APPOINTMENT OF COUNSEL

vs.

UNITED STATES OF AMERICA,
FEDERAL BUREAU OF
INVESTIGATION,
Defendants.

ORDER DISMISSING COMPLAINT, DENYING AS MOOT
PLAINTIFF’S APPLICATION TO PROCEED WITHOUT
PREPAYMENT OF FEES OR COSTS, AND
DENYING PLAINTIFF’S REQUEST FOR APPOINTMENT OF COUNSEL

INTRODUCTION
On January 7, 2016, 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
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and the Department of State. Because Flores’ claims are barred by the doctrine of
sovereign immunity, and do not satisfy Federal Rules of Civil Procedure 8 or
12(b)(6), the Court DISMISSES the Complaint with prejudice, DENIES the
Application as moot, and DENIES his request for appointment of counsel.
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
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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).
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).
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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
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
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(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
unconsented suit against the United States.”). Lack of subject matter jurisdiction
may be raised at any time. Id.
DISCUSSION
Upon review of the Complaint, 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. Even liberally construed, the Complaint fails to state any discernible
basis for judicial relief. Flores alleges as follows:
Currently, I cannot continue my work because there are
authorize[d] access to[] many of my data. Mainly from U.S.
agents, the public, and possibly foreign influence.
This responsibility/accountability falls on the U.S.
government and the U.S. Department of State.
I would like to file a motion to have an attorney for this
complaint.
As a relief, I have estimated the cost of los[s] of my date to
the value of $3 trillion U.S. dollars. This may be payable in the
combination of land, U.S. currency, and gold.
I would also ask the court to review, revise and update all
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U.S. laws to adhere to my work agreement and seal this case.
I will not continue any of my work without an initial
payment of $10 million U.S. dollars as per requested in this
court.
Complaint at 2-3.
The Court is familiar with Flores based upon his recent filings in this district,
which allege similar claims against the United States and its agencies.1 Despite the
Court’s prior instructions, Flores again brings claims for damages against an agency
of the United States, based upon on his alleged “work agreement” with the
government and his “current work . . . of U.S. National Security a vary [sic] from
U.S. Security Clearance.” Complaint at 2. As the Court explained in both of its
previous orders dismissing similar allegations, such claims against the United States

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This is the fourth complaint filed by Flores in as many months. See Flores v. Brady, Civil No.
15-408 DKW-RLP; Flores v. FBI, Civil No. 15-515 DKW-RLP; and Flores v. U.S. Dep’t of
Justice, CV 15-00538 HG-RLP. 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). Flores alleged in Civil No. 15-515 DKW-RLP 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.”
He also alleged 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.”
Flores v. FBI, Civil No. 15-515 DKW-RLP (Dkt. No. 1). The Court again dismissed that
complaint, which Flores appealed. Flores v. FBI, Civil No. 15-515 DKW-RLP (Dkt. No. 4;
12/15/15 Order); (Dkt. No. 8; Notice of Appeal).

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and its agencies are barred by the doctrine of sovereign immunity. See Flores v.
Brady, Civil No. 15-408 DKW-RLP (Dkt. No. 6; 10/14/15 Order); Flores v. FBI,
Civil No. 15-515 DKW-RLP (Dkt. No. 4; 12/15/15 Order). 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 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 Department of State or the United States. To the extent he
vaguely alleges that federal statutes are inadequate, his claims are incoherent. See
Complaint at 1 (“The American Disability Act of 1990 and the Freedom of
Information Act doesn’t protect from my current work.”). His allegations implying
data theft are, at best, legal conclusions and do not allege “sufficient factual matter,
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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, and beyond that, Plaintiff’s assertions are patently frivolous.
Finally, with respect to Flores’ request for the appointment of counsel, the
Court, in its discretion, “may appoint counsel . . . only under ‘exceptional
circumstances.’” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); see also
Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). “A finding of
exceptional circumstances requires an evaluation of both the likelihood of success
on the merits [and] the ability of the petitioner to articulate his claims pro se in light
of the complexity of the legal issues involved.” Terrell, 935 F.2d at 1017 (citation
omitted). Neither factor is dispositive and both must be viewed together before
reaching a decision on a request for counsel. Id. In most cases, however, the
Court cannot expend public resources to provide plaintiffs with counsel. See
McCue v. Food Pantry, Ltd., 2008 WL 852018, at *3 (D. Haw. Mar. 28, 2008). The
present action does not support the appointment of counsel. As noted above, the
Complaint is nearly incomprehensible and is unlikely to succeed on the merits. The
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current Complaint not only fails to state a claim, but fails to establish a jurisdictional
basis on which this Court may proceed. At this preliminary stage, the Court is not
able to adequately evaluate the ability of Flores to articulate his claims pro se,
beyond his apparent ability to read, write and access the courts repeatedly.
Moreover, there is no presumptive right to appointed counsel in civil proceedings
that do not threaten a litigant with loss of physical liberty, and no such threat is
presented in this case. Lassiter v. Dep't. of Soc. Servs., 452 U.S. 18, 26-27 (1981).
Accordingly, because “exceptional circumstances” do not exist here, the request for
the appointment of counsel is DENIED.
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.
CONCLUSION
Based upon the foregoing, the Complaint is DISMISSED without leave to
amend, the Application is DENIED as moot, and the request for the appointment of
counsel is DENIED. The Clerk of Court is directed to close the case file.
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IT IS SO ORDERED.
Dated: January 8, 2016 at Honolulu, Hawai‘i.

Xavier Flores v. United States of America, et al.; Civil No. 16-00009 DKW-RLP;
ORDER DISMISSING COMPLAINT, DENYING AS MOOT PLAINTIFF’S
APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES OR
COSTS, AND DENYING PLAINTIFF’S REQUEST FOR APPOINTMENT
OF COUNSEL
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