Cross v. FBI

Filing 10

Chief Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER.The complaint is DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1).(PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________

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ALI L. CROSS,
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Plaintiff,
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v.
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FEDERAL BUREAU OF
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INVESTIGATION,
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Defendant.
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____________________________________)

Civil Action No.
23-12549-FDS

MEMORANDUM AND ORDER
SAYLOR, C.J.
Plaintiff Ali L. Cross is a pretrial detainee now confined to the Norristown State Hospital
in Norristown, Pennsylvania. He initiated this action by filing a complaint against the Federal
Bureau of Investigation (“FBI”). He is proceeding pro se.
For the reasons stated below, the Court will dismiss this action pursuant to 28 U.S.C. §
1915A(b)(1).
I.

Background
The complaint alleges a claim pursuant to 42 U.S.C. § 1983 against the defendant FBI.

Compl. at 1. It alleges that plaintiff “was in the Federal Witness Protection program [in the
1980s as a child living in Tampa, Florida]. Id. at ¶ 6. It further alleges that “John Smith was
[his] name in the Federal Witness Protection Program.” Id. at ¶ 6. Plaintiff asserts that “due to
ongoing illegal [surveillance] schemes continued secret service schemes to force me to (sue) +=
(Microsoft).” Id. at ¶ 3.

Plaintiff states that in 2018 and 2019 he filed civil actions in this court. Id. at ¶ 3. 1 For
relief, the complaint seeks an investigation and for plaintiff to be placed back into the witness
protection program. Id. at 3 (relief requested).
II.

Review of the Complaint
Screening of the complaint is mandated by the Prison Litigation Reform Act, which

requires federal courts to screen prisoner complaints seeking relief against a governmental entity,
officer, or employee. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or a portion
thereof if the prisoner has raised claims that (1) are legally frivolous or malicious; (2) fail to state
a claim on which relief can be granted; or (3) seek monetary relief from a defendant who is
immune from such relief. See 28 U.S.C. § 1915A(b). When making that determination, the court
must accept the truth of the factual allegations contained in the complaint, and it may consider
the documents attached to the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In conducting its review, the court must liberally construe the complaint because plaintiff
is proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
III.

Discussion
Here, even with a generous reading of the complaint, it does not meet the screening

requirements of 28 U.S.C. §1915A. Plaintiff brings suit under 42 U.S.C. § 1983, which provides
a remedy for the violation of federal right by a person acting under the color of state law. 2 The
entity identified as a defendant in the complaint, the FBI, is not a state actor that can be sued

1

The court’s records indicate that Cross previously filed the following actions in the Boston federal court:
Cross v. Sheriff Office of Suffolk County, et al., C.A. No. 19-11603-LTS (dismissed Apr. 7, 2020); Cross v. Gates, et
al., C.A. No. 19-11242-NMG (dismissed Oct 15, 2020).
2

“42 U.S.C. § 1983 . . . furnishes a cause of action against any person who, while acting under color of
state law, transgresses someone else's constitutional rights.” Alfano v. Lynch, 847 F.3d 71, 74 n.1 (1st Cir. 2017)
(citing Kalina v. Fletcher, 522 U.S. 118, 123 (1997)).

2

under Section 1983. It is true that certain constitutional claims may be brought against federal
officials pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971). See Ziglar v. Abbasi, 582 U.S. 120, 129-131 (2017) (explaining that
Bivens provides an implied cause of action for money damages against individual federal
officials for certain constitutional violations similar to 42 U.S.C. § 1983). However, the FBI is
not a federal official amenable to suit under Bivens. Moreover, the Attorney General, not the
FBI, has the discretionary decision-making power for placement into the federal witnessprotection program. See 18 U.S.C. § 3521(a)(1).
In light of the nature of the claims, the court finds that amendment would likely be futile.
Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 23 (1st Cir. 2014) (explaining that sua
sponte dismissal is appropriate only when it is crystal clear that the plaintiff cannot prevail and
that amending the complaint would be futile).
Accordingly, and pursuant to 28 U.S.C. § 1915A(b), the action will be dismissed for
failure to state a claim upon which relief can be granted.
IV.

Order
For the foregoing reasons, it is hereby ordered as follows:
1.

The complaint is DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1).

2.

The clerk is directed to enter a separate Order of Dismissal.

So Ordered.
/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
Chief Judge, United States District Court

Dated: February 6, 2024

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