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)

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ____________________________________ ) ALI L. CROSS, ) ) Plaintiff, ) ) v. ) ) FEDERAL BUREAU OF ) INVESTIGATION, ) ) Defendant. ) ____________________________________) 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 3

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