Knight v. Federal Bureau of Investigation

Filing 10

Opinion and Order: The Court GRANTS the FBI's Motion 5 to Dismiss as set forth in the attached Opinion and Order. Plaintiff may file an amended complaint no later than December 2, 2013, to cure the deficiencies noted above as to serv ice on Agent Fowler, Plaintiff's claims against Agent Fowler, and Plaintiff's claim(s) for disability, age, and/or race discrimination. The Court advises Plaintiff that failure to file an amended complaint and to cure the deficiencies set out in this Opinion and Order by December 2, 2013, shall result in dismissal of this matter with prejudice. Signed on 11/13/2013 by Judge Anna J. Brown. See attached 20 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

PARKER MICHAEL KNIGHT,
Plaintiff,

3:13-CV-01212-BR
OPINION AND ORDER

v.
FEDERAL BUREAU OF
INVESTIGATION and GREGORY
FOWLER,
Defendants.

PARKER MICHAEL KNIGHT
45 S.E. 196th Avenue
Portland, or 97233
[phone]
Plaintiff, Pro Se
S. AMANDA MARSHALL
United States Attorney
JAMES E. COX , JR.
Assistant United States Attorney
1000 S.W. Third Avenue
Suite 600
Portland, OR 97204
[phone]
Attorneys for Defendant Federal Bureau of Investigation
(hereinafter referred to as FBI)
1 - OPINION AND ORDER

BROWN, Judge.
This matter comes before the Court on Defendant FBI's Motion
(#5) to Dismiss.

For the reasons that follow, the Court GRANTS

the FBI's Motion.

BACKGROUND
The following facts are taken from Plaintiff's Complaint.
At some point Plaintiff applied for a job with the FBI.
Plaintiff was interviewed by telephone and alleges he "was asked
illegal questions regarding his disabilities."

Compl. at ¶ II.

On July 1, 2013, Plaintiff filed a pro se complaint in
Multnomah County Circuit Court against the FBI and Special Agent
Gregory Fowler in which he alleges he "feel[s] American
Disability Act amended 1991 and Equal Employment Opportunity
Commission (EEOC) violation has occurred based on [Plaintiff's]
disability, race, and age."

Compl. at ¶ II.

Plaintiff also

alleges the following in Counts I through III:
Defendant and or his agents willfully, maliciously
and intentionally inflicted emotional distress
upon the Plaintiff.
* * *
Defendant and or his agents have intentional[ly],
maliciously, and without just cause, slandered the
Plaintiff's names, business and reputation[] in
the community by making knowingly false, malicious
and intentional statements about the Plaintiff,
Plaintiff's family, and the Plaintiff's business.

2 - OPINION AND ORDER

* * *
Defendant and or [its] agents have intentionally,
maliciously and without just cause, engaged in
deceitful business practices and malicious and
intentional fraud that were calculated to harm the
Plaintiff[] and [his] business.
Compl. at ¶¶ III-V.
On July 18, 2013, the FBI removed the matter to this Court
as an agency of the United States government pursuant to 28
U.S.C. § 1442(a)(1).
On August 20, 2013, the FBI filed a Motion to Dismiss on the
grounds that the Court lacks subject-matter jurisdiction and
Plaintiff failed to state a claim.
response to the FBI's Motion.

Plaintiff did not file a

The Court took the FBI's Motion

under advisement on September 27, 2013.

STANDARDS
I.

Dismissal for lack of jurisdiction pursuant to Rule 12(b)(1)
Plaintiff has the burden to establish that the court has

subject-matter jurisdiction.
726, 728 (9th cir. 2009).

Robinson v. Geithner, 359 F. App'x

See also Ass'n of Am. Med. Coll. v.

United States, 217 F.3d 770 (9th Cir. 2000).
When deciding a motion to dismiss for lack of subject-matter
jurisdiction under Rule 12(b)(1), the court may consider
affidavits and other evidence supporting or attacking the
complaint's jurisdictional allegations.
3 - OPINION AND ORDER

Rivas v. Napolitano, 714

F.3d 1108, 1114 n.1 (9th Cir. 2013).

The court may permit

discovery to determine whether it has jurisdiction.

Laub v.

United States Dep't of Interior, 342 F.3d 1080, 1093 (9th Cir.
2003).

When a defendant's motion to dismiss for lack of

jurisdiction "is based on written materials rather than an
evidentiary hearing, the plaintiff need only make a prima facie
showing of jurisdictional facts to withstand the motion to
dismiss."

Mavrix Photo, Inc. v. Brand Tech., Inc., 647 F.3d

1218, 1223 (9th Cir. 2011)(citation omitted).
II.

Dismissal for failure to state a claim pursuant to Rule
12(b)(6)
To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as
true, to “state a claim to relief that is
plausible on its face.” [Bell Atlantic v.
Twombly, 550 U.S. 554,] 570, 127 S. Ct. 1955. 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 556.
. . . The plausibility standard is not akin to a
“probability requirement,” but it asks for more
than a sheer possibility that a defendant has
acted unlawfully. Ibid. Where a complaint pleads
facts that are “merely consistent with” a
defendant's liability, it “stops short of the line
between possibility and plausibility of
‘entitlement to relief.’” Id. at 557, 127 S. Ct.
1955 (brackets omitted).

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
Atlantic, 550 U.S. at 555-56.

See also Bell

The court must accept as true the

allegations in the complaint and construe them in favor of the
plaintiff.

Din v. Kerry, 718 F.3d 856, 859 (9th Cir. 2013).

4 - OPINION AND ORDER

"In ruling on a 12(b)(6) motion, a court may generally
consider only allegations contained in the pleadings, exhibits
attached to the complaint, and matters properly subject to
judicial notice."

Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.

2012)(citation omitted).

A court, however, "may consider a

writing referenced in a complaint but not explicitly incorporated
therein if the complaint relies on the document and its
authenticity is unquestioned."

Swartz v. KPMG LLP, 476 F.3d 756,

763 (9th Cir. 2007)(citation omitted).
A pro se plaintiff's complaint “must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Thus, the Court has

an "obligation [when] the petitioner is pro se . . . to construe
the pleadings liberally and to afford the petitioner the benefit
of any doubt."

Akhtar, 698 F.3d at 1212 (quotation omitted).

"[B]efore dismissing a pro se complaint the . . .

court must

provide the litigant with notice of the deficiencies in his
complaint in order to ensure that the litigant uses the
opportunity to amend effectively.”

Id. (quotation omitted).

"A

district court should not dismiss a pro se complaint without
leave to amend unless it is absolutely clear that the
deficiencies of the complaint could not be cured by amendment."
Id. (quotation omitted).

5 - OPINION AND ORDER

DISCUSSION
I.

Service
As noted, Plaintiff filed this action against the FBI and

Special Agent Fowler in Multnomah County Circuit Court and the
FBI removed the matter to this Court.

The FBI does not assert in

its Notice of Removal that Special Agent Fowler joined in the
removal.
A.

The FBI
The record does not reflect any service or attempted

service on the FBI.

The FBI, however, removed the matter to this

Court and filed a Motion to Dismiss that does not include a
defense of insufficient service pursuant to Federal Rule of Civil
Procedure 12(b)(5).

The Court, therefore, concludes the FBI has

waived any defense of insufficient service.

See Fed. R. Civ. P.

12(g)(2)("Except as provided in Rule 12(h)(2) or (3), a party
that makes a motion under this rule must not make another motion
under this rule raising a defense or objection that was available
to the party but omitted from its earlier motion.").

See also

Fed. R. Civ. P. 12(h)(1)("A party waives any defense listed in
Rule 12(b)(2)-(5) by:

(A) omitting it from a motion in the

circumstances described in Rule 12(g)(2); or (B) failing to
either:

(I) make it by motion under this rule; or (ii) include

it in a responsive pleading.").

6 - OPINION AND ORDER

B.

Agent Fowler
Attached to Plaintiff's complaint filed in state court

is a summons addressed to Gregory Fowler at the FBI Office on
9109 N.E. Cascades Parkway, Portland, Oregon, and sent by firstclass mail.

The record, however, does not include any indication

that the summons and complaint were actually delivered to Agent
Fowler.
In addition, even if Plaintiff caused the summons
attached to the complaint to be mailed to Agent Fowler's office,
the manner in which Plaintiff effected service before this matter
was removed is insufficient to perfect service under Oregon law.1
In addition, Plaintiff also failed to perfect service on Agent
Fowler pursuant to the Federal Rules of Civil Procedure after
this matter was removed to this Court.
1.

Service under the Oregon Rules of Civil Procedure
Oregon Rule of Civil Procedure 7D(2)(d)(I)

provides in pertinent part:
When required or allowed by this rule . . .
service by mail shall be made by mailing true
copies of the summons and the complaint to the
defendant by first class mail and by any of the
following: certified, registered, or express mail
with return receipt requested.

1

The federal rules “apply to civil actions removed to the
United States district courts from the state courts and govern
procedure after removal” (emphasis added). Fed. R. Civ. P.
81(c). The Court, therefore, analyzes Plaintiff's service before
removal under Oregon Rules of Civil Procedure.
7 - OPINION AND ORDER

Emphasis added.

In addition, Rule 7D(3)(a)(I) permits service on

an individual within the State of Oregon by "mailing made in
accordance with [Rule 7D](2)(d) . . . provided the defendant
signs a receipt for the certified, registered, or express
mailing."

Emphasis added.
The record reflects Plaintiff mailed a copy of the

summons and complaint to Agent Fowler via first class mail.

The

record, however, does not reflect Plaintiff also mailed a copy of
the summons and complaint to Agent Fowler via certified,
registered, or express mail with return receipt requested or that
Agent Fowler signed a receipt for any certified, registered, or
express mailing.

Plaintiff, therefore, has failed to establish

that he properly served Agent Fowler under the Oregon Rules of
Civil Procedure before the matter was removed to this Court.
2.

Service under the Federal Rules of Civil Procedure
Federal Rule of Civil Procedure 4(i)(3) provides

in pertinent part:

"To serve a United States . . . employee

[within a judicial district of the United States,] . . . a party
must serve the United States and also serve the officer or
employee under Rule 4(e)."

To serve the United States,

Rule 4(i)(1) requires a party to:
(A)(i) deliver a copy of the summons and of the
complaint to the United States attorney for the
district where the action is brought -- or to an
assistant United States attorney or clerical
employee whom the United States attorney
designates in a writing filed with the court clerk
8 - OPINION AND ORDER

-- or
(ii) send a copy of each by registered or
certified mail to the civil-process clerk at
the United States attorney's office; [and]
(B) send a copy of each by registered or certified
mail to the Attorney General of the United States
at Washington, D.C.
The record does not reflect Plaintiff sent a copy of the summons
and complaint by certified or registered mail to the Attorney
General of the United States in Washington, D.C.

Plaintiff,

therefore, also has not established that he properly served Agent
Fowler under the Federal Rules of Civil Procedure.
Agent Fowler has not appeared in this matter and was
not a party to the removal.

Accordingly, he has not waived any

objection to insufficient or improper service.

The Court,

therefore, dismisses Plaintiff's claims against Agent Fowler for
insufficient service.
Finally, Plaintiff fails to allege any facts in his
complaint as to any acts of Agent Fowler to support Plaintiff's
claims.

Accordingly, the Court also dismisses Plaintiff's claims

against Agent Fowler for failure to state a claim.
II.

Dismissal for lack of subject-matter jurisdiction
The FBI moves to dismiss Plaintiff's claims for slander,

intentional infliction of emotional distress (IIED), and fraud on
the ground that this Court lacks subject-matter jurisdiction
because Plaintiff has not alleged he exhausted his administrative

9 - OPINION AND ORDER

remedies and the Federal Tort Claims Act (FTCA), 28 U.S.C.
§ 2671, et seq., does not waive sovereign immunity for
intentional torts.

The FBI also moves to dismiss Plaintiff's

Americans with Disabilities Act (ADA) claim on the ground that
this Court lacks subject-matter jurisdiction because Plaintiff
has not alleged he filed an Equal Employment Opportunity (EEO)
claim with the FBI.
A.

Exhaustion of tort claims
The FTCA provides the exclusive remedy for monetary

damages from the federal government for "personal injury or death
arising or resulting from the negligent or wrongful act or
omission of any employee of the Government while acting within
the scope of his office or employment."

28 U.S.C. § 2679(b)(1).

Under the FTCA,
[a]n action shall not be instituted upon a claim
against the United States for money damages for
injury or loss of property or personal injury or
death caused by the negligent or wrongful act or
omission of any employee of the Government . . .
unless the claimant shall have first presented the
claim to the appropriate Federal agency and his
claim shall have been finally denied by the agency
in writing and sent by certified or registered
mail.
28 U.S.C. § 2675(a).

In addition, 28 U.S.C. § 2401(b) provides:

A tort claim against the United States shall be
forever barred unless it is presented in writing
to the appropriate Federal agency within two years
after such claim accrues or unless action is begun
within six months after the date of mailing, by
certified or registered mail, of notice of final
denial of the claim by the agency to which it was
10 - OPINION AND ORDER

presented.
The claim-presentation requirement is "'jurisdictional
in nature and may not be waived.'"

Vacek v. United States Postal

Serv., 447 F.3d 1248, 1252 (9th Cir. 2006).
Plaintiff does not allege in his Complaint that he
filed an administrative tort claim with the FBI or that the FBI
denied in writing any administrative tort claim brought by
Plaintiff.

Plaintiff, therefore, has not alleged facts

sufficient to establish that he provided tort-claims notice to
the FBI as required by the FTCA.
Accordingly, the Court grants the FBI's Motion to
Dismiss Plaintiff's claims for slander, IIED, and fraud.
B.

Sovereign immunity related to tort claims
The FBI contends even if Plaintiff exhausted his

administrative remedies, his claims for IIED, slander, and fraud
are barred by the doctrine of sovereign immunity.
Under the Eleventh Amendment the sovereign is immune to
claims against it by its citizens.

U.S. Const. amend XI.

also Tennessee v. Lane, 541 U.S. 509, 517 (2004).

See

Congress,

however, may abrogate a state's sovereign immunity under certain
circumstances or, as with other constitutional rights, a state
may voluntarily waive its right to immunity.
518 U.S. 187, 192–98 (1996).

See Lane v. Pena,

See also Quantum Prod. Serv., LLC

v. Austin, 448 F. App'x 755, 756 (9th Cir. 2011)("Absent a
11 - OPINION AND ORDER

waiver, sovereign immunity shields the Federal Government and its
agencies from suit.").
The test for waiver of sovereign immunity is a
“stringent one.”

Coll. Sav. Bank v. Fla. Prepaid Postsecondary

Educ. Expense Bd., 527 U.S. 666, 675–78 (1999)(quotation
omitted).

Sovereign immunity may not be impliedly or

constructively waived, and courts must "indulge every reasonable
presumption against waiver."

Id. at 678–82 (waivers of sovereign

immunity must be “unmistakably clear”).

Any ambiguity in the

waiver of sovereign immunity must be construed in favor of
immunity.

United States v. Nordic Village, Inc., 503 U.S. 30, 34

(1992).
Although Congress specifically waived the United
States' sovereign immunity for certain claims in the FTCA,
§ 2680(h) of the FTCA exempts "[a]ny claim arising out of
assault, battery, false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander, misrepresentation,
deceit, or interference with contract rights" from the waiver of
sovereign immunity.

Congress, therefore, has not waived

sovereign immunity as to claims for slander and fraud like those
brought by Plaintiff against the FBI.
Accordingly, the Court grants the FBI's Motion to
Dismiss Plaintiff's claims against the FBI for IIED, slander, and
fraud without leave to amend because those claims are barred by

12 - OPINION AND ORDER

the doctrine of sovereign immunity.
C.

Exhaustion of ADA claim
“'Prior to instituting a court action under Title VII,

a plaintiff alleging discrimination in federal employment must
proceed before the agency charged with discrimination.
§ 2000e-16(c).'"

42 U.S.C.

Diefenderfer v. LaHood, No. C08–958Z, 2009 WL

2475083, at *3 (W.D. Wash. Aug. 10, 2009)(quoting Bayer v. United
States Dep't of Treasury, 956 F.2d 330, 332 (D.C. Cir. 1992)).
See also Vines v. Gates, 577 F. Supp. 2d 242, 254 (D.D.C. 2008)
(same); Brown v. Gen. Serv. Admin., 425 U.S. 820, 832-33 (1976)
("[A]n aggrieved employee [has the right to] file a civil action
in a federal district court to review his claim of employment
discrimination.
preconditions.

Attached to that right, however, are certain
Initially the complainant must seek relief in the

agency that has allegedly discriminated against him.

He then may

seek further administrative review with the Civil Service
Commission or, alternatively, he may . . . file suit in federal
district court without appealing to the Civil Service
Commission."); 42 U.S.C. § 2000e-16(c)("Within 90 days of receipt
of notice of [alleged discriminatory action] by a department
. . . or after one hundred and eighty days from the filing of the
initial charge with the department . . . an . . . applicant for
employment . . . may file a civil action.").
Plaintiff has not alleged in his Complaint that he
13 - OPINION AND ORDER

filed an EEO claim with the FBI.

This Court, therefore, lacks

subject-matter jurisdiction because Plaintiff has not established
that he exhausted his administrative remedies.
Accordingly, the Court grants the FBI's Motion to
Dismiss Plaintiff's claim for violation of the ADA on the basis
of failure to exhaust.
II.

Dismissal for failure to state a claim
As noted, Plaintiff alleges the FBI violated the ADA, 42

U.S.C. § 12112, et seq., "based on [Plaintiff's] disability,
race, and age."

Even if Plaintiff exhausted his administrative

remedies, the FBI contends Plaintiff's employment-discrimination
claims should be dismissed on the ground that Plaintiff fails to
state a claim for violation of any employment-discrimination
statute.
A.

Plaintiff's ADA claim
Title I of the ADA ensures fair opportunities in the

workplace for qualified individuals with disabilities by
prohibiting discrimination against those individuals and by
requiring employers to reasonably accommodate their disabilities.
42 U.S.C. § 12112.

See also Sutton v. United Air Lines, Inc.,

527 U.S. 471, 477-78 (1999).

The ADA provides in pertinent part:

No covered entity shall discriminate against a
qualified individual with a disability because of
the disability of such individual in regard to job
application procedures, the hiring, advancement,
or discharge of employees, employee compensation,
14 - OPINION AND ORDER

job training, and other terms, conditions, and
privileges of employment.
42 U.S.C. § 12112(a).

To state a prima facie case of

discrimination under the ADA, a plaintiff must allege he is a
qualified individual with a disability and that his employer
discriminated against him because of his disability.

Sanders v.

Arneson Prod., Inc., 91 F.3d 1351, 1353 (9th Cir. 1996).
An individual is disabled within the meaning of the ADA
if he has "a physical or mental impairment that substantially
limits one or more of [his] major life activities" or if his
employer regards him "as having such an impairment."
§ 12102(2)(A), (C).

42 U.S.C.

The Supreme Court held the term disability

should be strictly interpreted "to create a demanding standard
for qualifying as disabled" and in order for an individual "to be
substantially limited in performing manual tasks, [that]
individual must have an impairment that prevents or severely
restricts the individual from doing activities that are of
central importance to most people's daily lives."

Toyota Motor

Mfg. Ky. Inc. v. Williams, 534 U.S. 184, 197-98 (2002).

The term

"discriminate" includes "not making reasonable accommodations to
the known physical or mental limitations of an otherwise
qualified individual with a disability who is an applicant or
employee, unless such covered entity can demonstrate that the
accommodation would impose an undue hardship."
§ 12112(b)(5)(A).
15 - OPINION AND ORDER

42 U.S.C.

"As with discrimination cases generally, a plaintiff in
an ADA case at all times bears the ultimate burden of
establishing . . . he has been the victim of illegal
discrimination based on his disability."

Gomez v. Am. Bldg.

Maint., 940 F. Supp. 255, 257 (N.D. Cal. 1996)(citing St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502 (1993)).
Plaintiff does not allege in his Complaint that he
suffers from a physical or mental impairment that substantially
limits one or more of [his] major life activities nor does he
identify any of his alleged impairments.

Moreover, Plaintiff

does not allege the FBI discriminated against him because of a
disability nor identify in his Complaint any specific acts of
discrimination that the FBI allegedly engaged in related to his
alleged disabilities
Accordingly, the Court grants the FBI's Motion to
Dismiss Plaintiff's ADA claim for failure to state a claim.
B.

Plaintiff's claim for age discrimination
Plaintiff appears to intend to allege a claim for

discrimination based on age even though Plaintiff's Complaint
does not contain any allegations regarding the FBI's actions
related to Plaintiff's age.
To state a claim for age discrimination in violation of
the Age Discrimination in Employment Act (ADEA), 29 U.S.C.
§ 621, a plaintiff

16 - OPINION AND ORDER

must demonstrate that [he] is (1) at least forty
years old, (2) performed [his] job satisfactorily,
(3) was discharged, and (4) either replaced by a
substantially younger employee with equal or
inferior qualifications or discharged under
circumstances otherwise "giving rise to an
inference of age discrimination." Diaz v. Eagle
Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir.
2008)(quoting Coleman v. Quaker Oats Co., 232 F.3d
1271, 1281 (9th Cir. 2000)).
Swan v. Bank of Am., No. 08-16889, 2009 WL 5184129, at *1 (9th
Cir. Dec. 30, 2009).

Plaintiff fails to allege in his Complaint

that he was terminated, that he was at least forty years old at
the time of his termination, that he was replaced by a
substantially younger employee, or any other circumstances that
might give rise to an inference of discrimination based on his
age.
Accordingly, the Court grants the FBI's Motion to
Dismiss Plaintiff's claim of age discrimination.
C.

Plaintiff's claim for race discrimination
To the extent that Plaintiff intends to allege a claim

for race discrimination despite the fact that his Complaint does
not contain any allegations regarding the FBI's actions related
to Plaintiff's race, Plaintiff fails to state a claim.
Title VII makes it unlawful for an employer to
“discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race.”

42 U.S.C. § 2000e-2(a)(1).

"A person suffers disparate treatment in his employment 'when he
17 - OPINION AND ORDER

. . . is singled out and treated less favorably than others
similarly situated on account of race.'"

Cornwell v. Electra

Cent. Cred. Union, 439 F.3d 1018, 1028 (9th Cir. 2006)(quoting
McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1121 (9th Cir.
2004)).
To establish a prima facie case under Title VII, a
plaintiff must establish (1) he belongs to a class of persons
protected by Title VII, (2) he performed his job satisfactorily,
(3) he suffered an adverse employment action, and (4) his
employer treated him differently than similarly-situated
employees who do not belong to the same protected class as the
plaintiff.

Id. (citing McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802 (1973)).
Plaintiff does not allege in his Complaint that he
belongs to a protected class, that he performed his job
satisfactorily, or that he was treated differently from
similarly-situated employees who are not in Plaintiff's protected
class.
Accordingly, the Court grants the FBI's Motion to
Dismiss Plaintiff's claim for race discrimination.
D.

Leave to amend
The Ninth Circuit has made clear that when a pro se

plaintiff fails to state a claim, "[l]eave to amend should be
granted unless the pleading 'could not possibly be cured by the
18 - OPINION AND ORDER

allegation of other facts.'"
Lopez, 203 F.3d at 1130).

Ramirez, 334 F.3d at 861 (quoting

Because Plaintiff may be able to cure

the deficiencies in his claims for disability, age, and/or race
discrimination, the Court dismisses these claims without
prejudice and with leave for Plaintiff to file an Amended
Complaint to cure the deficiencies set out in this Opinion.
Plaintiff may also be able to cure the failure to
establish that Agent Fowler was properly served and to allege any
facts related to actions by Agent Fowler that form the basis for
Plaintiff's claims for disability, age, and/or race
discrimination.
As noted, however, Plaintiff's claims for IIED,
slander, and fraud are dismissed with prejudice and without leave
to amend based on the doctrine of sovereign immunity.

CONCLUSION
For these reasons, the Court GRANTS the FBI's Motion (#5) to
Dismiss and
1.

DISMISSES Plaintiff's claims for IIED, slander, and
fraud with prejudice;

2.

DISMISSES Plaintiff's claims against Agent Fowler
without prejudice; and

4.

DISMISSES Plaintiff's claims for disability, age,
and/or race discrimination without prejudice.

19 - OPINION AND ORDER

Plaintiff may file an amended complaint no later than
December 2, 2013, to cure the deficiencies noted above as to
service on Agent Fowler, Plaintiff's claims against Agent Fowler,
and Plaintiff's claim(s) for disability, age, and/or race
discrimination.

The Court advises Plaintiff that failure to file

an amended complaint and to cure the deficiencies set out in this
Opinion and Order by December 2, 2013, shall result in dismissal
of this matter with prejudice.
IT IS SO ORDERED.
DATED this 13th day of November, 2013.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

20 - OPINION AND ORDER