Herbert v. Federal Bureau of Investigation

Filing 9

ORDER dismissing Complaint without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B), signed by Judge James L. Robart. (SWT) (cc: Plaintiff via USPS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ANTHONY HERBERT,

CASE NO. C17-1032JLR
ORDER DISMISSING ACTION
UNDER 28 U.S.C. § 1915(E)(2)(B)

Plaintiff,

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v.
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FEDERAL BUREAU OF
INVESTIGATION,

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Defendant.

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I.

INTRODUCTION

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Before the court is pro se Plaintiff Anthony Herbert’s complaint. (Compl. (Dkt.
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# 8).) Mr. Herbert requested and was granted in forma pauperis status to file suit. (IFP
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Mot. (Dkt. # 1); IFP Order (Dkt. # 7).) If a plaintiff proceeds in forma pauperis, the court
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must dismiss the complaint if the complaint is frivolous, malicious, fails to state a claim
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on which relief may be granted, or seeks monetary relief from a defendant who is
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immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i), (ii), (iii). As discussed below,
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ORDER - 1

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Mr. Herbert’s complaint falls within the category of pleadings that the court must

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dismiss.

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II.

BACKGROUND

In his complaint, Mr. Herbert sues the “Federal Bureau of Investigations” [sic]

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(“FBI”). (Compl. at 1.) Although Mr. Herbert’s complaint is difficult to understand, he

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alleges that the FBI “failed to protect [him] by kicking [him] out of their office with

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aggressive behavior, hanging up on [him] when [he] called to speak to a duty officer[,]

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and telling [him] that duty officers [do not] talk to people on the phone.” (Id.) He

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complains that an FBI agent told him to report the alleged hacking of his computer and

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credit cards to the local police, but the local police failed to help him as well. (Id. at 1-2.)
Mr. Herbert also alleges a litany of experiences that he claims have injured and

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from which the FBI has failed to protect him. (See id. at 2.) He asserts that his car has

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been damaged and broken into, although he does say by whom. (Id.) He further avers

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that his “lips have been burned with acid” and that he was sexually assaulted while he

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was a mental health patient at Harborview Medical Center in Seattle, Washington, and

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also while he was a patient at Valley Medical Center in Renton, Washington. (Id.) He

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further alleges that he has “received a ticket of some sort by almost every local police

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agency twice.” (Id.) He also alleges that he called 911 from his hotel on Highway 99

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and waited 20 minutes for the ambulance to arrive and was later arrested for telephone

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harassment and had his iPhone 7 seized as evidence. (Id.) He asserts that the FBI’s

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failure to protect him from these events, as well as from public harassment and at least

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three assaults, amounts to an “assassination attempt.” (Id.)

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As a remedy, Mr. Herbert seeks an injunction “[r]estraining the FBI from stalking,

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harassing, intimidating, threatening[,] or sabotaging [him] or his cars.” (Id.) He also

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seeks $1,000,000,000.00 in damages. (Id.)

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III.

ANALYSIS

Because Mr. Herbert is proceeding in forma pauperis, the court must dismiss his

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case if the court determines that his action: (i) is frivolous or malicious; (ii) fails to state

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a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant

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who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Because Mr. Herbert is a

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pro se plaintiff, the court must construe his pleadings liberally. See McGuckin v. Smith,

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974 F.2d 1050, 1055 (9th Cir. 1992). Mr. Herbert does not indicate the law under which

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he brings his claims. (See generally Compl.) However, under a liberal construction, Mr.

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Herbert appears to be attempting to bring an action for the deprivation of federal or

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constitutional rights, which is known as a “Bivens” action. See Bivens v. Six Unknown

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Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

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A Bivens action cannot be maintained against the FBI, because the purpose of

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Bivens is to deter federal officers—not federal agencies. See F.D.I.C. v. Meyer, 510 U.S.

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471, 484-85 (1994) (“If we were to imply a damages action directly against federal

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agencies, thereby permitting claimants to bypass qualified immunity, there would be no

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reason for aggrieved parties to bring damages actions against individual officers . . . [and]

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the deterrent effects of the Bivens remedy would be lost.”). Consequently, Mr. Herbert

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cannot sue the FBI under Bivens. See Murphy v. Gordwin, No. 06-16924, 2007 WL

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4570579, at *1 (9th Cir. Dec. 28, 2007) (affirming the dismissal of a Bivens claim against

ORDER - 3

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the FBI); Smith v. F.B.I., No. 01-1384, 2001 WL 1450814, at *1 (6th Cir. Nov.6, 2001)

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(same).

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Moreover, the United States has not waived its sovereign immunity from suit in

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actions seeking monetary damages for constitutional violations. See Thomas-Lazear v.

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F.B.I., 851 F.2d 1202, 1207 (9th Cir. 1988) (“[T]he United States has not waived its

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sovereign immunity in actions seeking damages for constitutional violations”); see also

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F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994) (declining to recognize a direct action for

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damages against federal agencies). Thus, Mr. Herbert’s claim for damages is also subject

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to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii).

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Finally, the court must dismiss a complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for

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failure to state a claim upon which relief may be granted “if it appears beyond a doubt

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that the plaintiff can prove no set of facts in support of his claims that would entitle him

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to relief.” Buckey v. Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). In addition, a

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finding of frivolousness under 28 U.S.C. § 1915(e)(2)(B)(i) is appropriate if the facts

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alleged “rise to the level of the irrational or wholly incredible.” Denton v. Hernandez,

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504 U.S. 25, 33 (1992). Mr. Herbert’s complaint meets the criteria for dismissal under

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either § 1915(e)(2)(B)(i) or § 1915(e)(2)(B)(ii). Although the court does not doubt that

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Mr. Herbert’s beliefs are sincere, his allegations rise to the level of the wholly incredible.

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Accordingly, the court dismisses his complaint on this ground as well.

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The court must give a pro se litigant leave to amend his or her complaint to state a

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claim unless it is absolutely clear that amendment cannot cure the complaint’s

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deficiencies. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (noting

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leave to amend should be granted when a complaint is dismissed under 28 U.S.C.

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§ 1915(e) “if it appears at all possible that the plaintiff can correct the defect”). Because

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Mr. Herbert has not pleaded a cognizable legal theory and it appears that he cannot cure

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the defects in his complaint by alleging additional facts, the court dismisses his action

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without leave to amend. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir.

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1996) (ruling that denial of leave to amend is not an abuse of discretion where further

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amendment would be futile).

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IV.

CONCLUSION

Based on the foregoing analysis, the court DISMISSES Mr. Herbert’s complaint
without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).
Dated this 17th day of August, 2017.

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A

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JAMES L. ROBART
United States District Judge

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