negligence 20 claim against U.S. Marine Corps in connection with sexual assault accrued when plaintiff became 21 aware of her injury and its immediate cause, not when she learned of the Corps’ negligence
How later courts described this case
- negligence 20 claim against U.S. Marine Corps in connection with sexual assault accrued when plaintiff became 21 aware of her injury and its immediate cause, not when she learned of the Corps’ negligence
- plaintiff who cannot sue under § 1983 because he is not a citizen or alien resident of 24 U.S. cannot sue state police officers under Bivens
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
10 San Francisco Division
11 KENNETH CARL GUY, Case No. 21-cv-02640-LB
12 Plaintiff,
ORDER SCREENING COMPLAINT
13 v. WITH LEAVE TO AMEND
14 U.S. DEPARTMENT OF JUSTICE, Re: ECF No. 1
15 Defendant.
16
17 INTRODUCTION
18 The plaintiff Kenneth Guy, who represents himself in this action and who is proceeding in forma
19 pauperis, sued the United States Department of Justice (DOJ) because his former employer,
20 Newsmax Media, allegedly obtained his personal information — from a local Sheriff’s office —
21 contained in the Criminal Justice Information Systems, “which is maintained by the Department of
22 Justice.” He claims that this was an unreasonable search and seizure under color of law, in violation
23 of 42 U.S.C. § 1983, Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
24 399 (1971), and the Constitution (here, the Fourth Amendment).1 Before directing the United States
25 Marshal to serve the defendant with the complaint, the court must screen it for minimal legal
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1 Compl. – ECF No. 1 at 1 (¶ 2), 6–7 (¶¶ 23–25), 9 (¶ 29). Citations refer to material in the Electronic
1 viability. 28 U.S.C. § 1915(e)(2)(B). The plaintiff did not plausibly plead a federal claim for several
2 reasons, including the age of the alleged injury, the lack of involvement by any federal actors in the
3 alleged wrongdoing, and his failure to plausibly plead venue or personal jurisdiction. In this order,
4 the court identifies the complaint’s deficiencies and gives the plaintiff an opportunity to amend the
5 complaint by May 18, 2021 to cure them.
6
7 STATEMENT
8 The plaintiff worked for Newsmax Media, where he “endure[d] months of endless harassment
9 intent on forcing the Plaintiff to voluntarily terminate his own employment.”2 He “ended his
10 employment relationship” with Newsmax in October 2014, allegedly had claims against them for
11 employment discrimination (which “harmed the Plaintiff severely enough to be the cause of [a]
12 foreclosure action” in Florida, where he cross-claimed against Newsmax), and settled his dispute
13 with Newsmax for one month’s severance pay.3 “Newsmax Media Inc. should have included the
14 Department of Justice in the Plaintiff’s employment settlement agreement, but they did not.”4
15 The basis for the DOJ’s liability is Newsmax’s alleged access to the plaintiff’s personal
16 information (contained in the DOJ’s Criminal Justice Information Systems) that Newsmax
17 allegedly obtained from an informant at a local Sheriff’s office:
18 24. In no coincidence, two managers at Newsmax Media Inc. discussed the “fact” that
the CEO of Newsmax Media Inc., Chris Ruddy, has an informant at a local Sheriff’s
19 office, that upon request, they provide to him any personal and/or classified information on
anyone stored in the Criminal Justice Information Systems, which is maintained by the
20
Department Of Justice. The two managers further discussed how information on the
21 Plaintiff was provided to the CEO of Newsmax Media Inc., and while the specifics of that
information was not disclosed in that conversation that the Plaintiff was clearly meant to
22 overhear, that information would be and allegedly was enough to justify terminating the
Plaintiff’s employment at Newsmax Media Inc. In that same conversation, one of the
23 managers has commented on how Chris Ruddy had stated in that conversation that he
would make looking up a potential employee’s classified CJIS information a standard
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hiring practice for every potential employee.
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2 Id. at 3 (¶ 13).
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3 Id. at 3–4 (¶¶ 10–18).
. . .
1
26. An unreasonable search was made regarding the Plaintiff’s classified information
2
maintained by the Department of Justice by a Department of Justice employee because the
3 information provided, if any information was provided, was provided to a civilian in a
civilian capacity for use by a private company.5
4
5 The plaintiff alleged that he “does not have a criminal record, and when he was an employee at
6 Newsmax Media, Inc., he did not have any direct knowledge of any criminal investigation regarding
7 the Plaintiff.”6 He also alleged that “he does have a criminal record, but the Plaintiff has been
8 victimized by crimes executed by criminals claiming to use the alleged joinder by Newsmax Media
9 Inc. and the Department of Justice regarding allegations made by a Newsmax Media Inc. employee
10 that led to the termination of his employment at Newsmax Media Inc. as a means to fraudulently
11 associate with that cause of action to either avoid arrest or delay prosecution in matters entirely
12 unrelated to a possible unreasonable search allegedly made by a Department of Justice employee.”7
13 In the complaint, the plaintiff explains why he is filing this lawsuit: he tried to raise a Bivens
14 claim as a result of actions by an employee of the state of Florida, learned that a Bivens claim lies
15 only against a federal employee, and filed this lawsuit to eliminate any resulting ambiguity and for
16 the sake of finality.
17 21. In the state case in Florida, the Plaintiff communicated his intention to seek a remedy
for a Bivens wrong. However, a Bivens wrong can only be committed by a Federal
18 employee. In the cross claim filed in that foreclosure case, the Plaintiff communicated his
intention to seek a remedy for that Bivens wrong as a consequence of the actions of an
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employee of the State of Florida. For this reason, it is the intention of this complaint to
20 eliminate any legal ambiguity that may have been caused by the Plaintiff’s legal naiveté.
22. Even though Newsmax Media Inc. has already settled their claims with the Plaintiff
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on all causes of action(s) that led to the Plaintiff’s termination of employment with
22 Newsmax Media Inc., for the sake of finality, the Plaintiff files this Complaint with the
intention of ending any possible controversy related to the alleged Bivens Wrong that,
23 according to Newsmax Media Inc., led to the Plaintiff’s termination of employment with
Newsmax Media Inc.8
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5 Id. at 7–8 (¶¶ 24, 26).
6 Id. at 6 (¶ 23).
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7 Id. at 8 (¶ 28).
1 The complaint has one claim against the DOJ (styled a § 1983/Bivens claim) asserting a
2 constitutional violation on the ground that the information from the DOJ Criminal Justice
3 Information Systems, “if any information was provided, was provided to a civilian in a civilian
4 capacity for use by a private company.” If classified or private information “is stored by law
5 enforcement personnel for law enforcement purposes, the disclosure of that classified information
6 to a civilian for use other than for a criminal investigation would be an unreasonable search of the
7 Plaintiff’s classified information, causing harm to the Plaintiff, specifically in this instance, the
8 loss of the Plaintiff’s job at Newsmax Media Inc.”9 He does not seek any monetary relief and
9 requests Declaratory Relief from the Department of Justice:
10 Instead, the Plaintiff seeks finality to be established on any civil claim and/or claims that
the Plaintiff may have regarding the facts that led to the termination of his employment at
11 Newsmax Media Inc. so that any individual victimizing the Plaintiff can no longer assert a
fraudulent joinder with any cause of action related to the Department of Justice, claiming
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the joinder alleged by Newsmax Media Inc. as a means for any individual breaking the law
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against the Plaintiff to either avoid arrest or delay their prosecution.10
14 The plaintiff attaches eight exhibits to his complaint (numbered A through H and mostly related
15 to the Florida lawsuit) to support the factual allegations in his complaint: (A) his answer to the
16 foreclosure complaint; (B) his motion to add a missing party (presumably Newsmax) in the
17 foreclosure action; (C) the results of a polygraph examination that he took (and passed) in August
18 2020; (D) a November–December 2014 Wells Fargo statement (reflecting an address in Florida)
19 showing his receipt of the Newsmax severance payment; (E) his September 2017 motion to stay the
20 Florida foreclosure proceedings to allow him to “seek[] a remedy for a Bivens wrong” based on
21 allegations of misconduct (that he reported to the FBI) by Florida law-enforcement officers; (F) his
22 notice of a hearing on his motion; (G) the judgment in favor of the mortgage company in the Florida
23 foreclosure action; and (H) his motion to redact health-care information in this case.11 The questions
24 and answers to the polygraph examination are as follows: (1) “Has extortion been attempted on you
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9 Id. at 7–8 (¶¶ 26–27).
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10 Id. at 9 (¶¶ 29–30).
1 to get you to end your current legal case?” (Answer: yes.); (2) “Was it suggested to you to add the
2 demand letter in your Florida foreclosure case?” (Answer: yes.); (3) Were you informed at Newsmax
3 that you were a CJIS/Bivens leak victim after they knew a discrimination lawsuit was eminent?”
4 (Answer: yes.); and (4) “Were you ever a drug dealer in Virginia or Florida?” (Answer: no.).12
5
6 ANALYSIS
7 1. Sua Sponte Screening – 28 U.S.C. § 1915(e)(2)
8 A complaint filed by any person proceeding in forma pauperis under 28 U.S.C. § 1915(a) is
9 subject to a mandatory and sua sponte review and dismissal by the court to the extent that it is
10 frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary
11 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v.
12 Stahl, 254 F.3d 845, 845 (9th Cir. 2001); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000)
13 (en banc). Section 1915(e)(2) mandates that the court reviewing an in forma pauperis complaint
14 make and rule on its own motion to dismiss before directing the United States Marshals to serve
15 the complaint under Federal Rule of Civil Procedure 4(c)(2). Lopez, 203 F.3d at 1127. “The
16 language of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule of Civil Procedure
17 12(b)(6).” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). The in forma pauperis
18 statute “is designed largely to discourage the filing of, and waste of judicial and private resources
19 upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of
20 bringing suit.” Neitzke v. Williams, 490 U.S. 319, 327 (1989).
21 Under Rule 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B), a district court must dismiss a complaint if
22 it fails to state a claim upon which relief can be granted. Rule 8(a)(2) requires that a complaint
23 include a “short and plain statement” showing the plaintiff is entitled to relief. “To survive a motion
24 to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to
25 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
26 marks omitted); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint need not
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1 contain “detailed factual allegations,” but the plaintiff must “provide the grounds of his entitlement
2 to relief,” which “requires more than labels and conclusions”; a mere “formulaic recitation of the
3 elements of a cause of action” is insufficient. Twombly, 550 U.S. at 555 (cleaned up).
4 In determining whether to dismiss a complaint under Rule 12(b)(6), the court ordinarily is
5 limited to the face of the complaint. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980
6 (9th Cir. 2002). Factual allegations in the complaint must be taken as true and reasonable
7 inferences drawn from them must be construed in favor of the plaintiff. Cahill v. Liberty Mut. Ins.
8 Co., 80 F.3d 336, 337–38 (9th Cir. 1996). The court cannot assume, however, that “the [plaintiff]
9 can prove facts that [he] has not alleged.” Assoc. Gen. Contractors of Cal., Inc. v. Cal. State
10 Council of Carpenters, 459 U.S. 519, 526 (1983). “Nor is the court required to accept as true
11 allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable
12 inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
13 Federal courts must construe pro se complaints liberally. Hughes v. Rowe, 449 U.S. 5, 9
14 (1980); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). A pro se plaintiff need only
15 provide defendants with fair notice of his claims and the grounds upon which they rest. Hearns,
16 413 F.3d at 1043. He need not plead specific legal theories so long as sufficient factual averments
17 show that he may be entitled to some relief. Id. at 1041.
18 When dismissing a case for failure to state a claim, the Ninth Circuit has “repeatedly held that
19 a district court should grant leave to amend even if no request to amend the pleading was made,
20 unless it determines that the pleading could not possibly be cured by the allegation of other facts.”
21 Lopez, 203 F.3d at 1130 (internal quotations omitted).
22 Venue is an issue in this lawsuit. “A civil action may be brought in — (1) a judicial district in
23 which any defendant resides, if all defendants are residents of the State in which the district is
24 located; (2) a judicial district in which a substantial part of the events or omissions giving rise to
25 the claim occurred, or a substantial part of property that is that is the subject of the action is
26 situated; or (3) if there is no district in which an action may otherwise be brought as provided in
27 this section, any judicial district in which any defendant is subject to the court’s personal
1 either dismiss the case without prejudice, or, if it is in the “interest of justice,” transfer the case “to
2 any district or division in which it could have been brought.” 28 U.S.C. § 1406(a); In re Hall,
3 Bayoutree Assocs., Ltd., 939 F.2d 802, 804 (9th Cir. 1991). Ordinarily, the interest of justice
4 requires transferring the case to a proper venue rather than dismissing the case. Baeta v. Sonchik,
5 273 F.3d 1261, 1264–65 (9th Cir. 2001). An action may be transferred to another court if: (1) that
6 court is one where the action might have been brought; (2) the transfer serves the convenience of
7 the parties; and (3) the transfer will promote the interests of justice. Kinney v. Gutierrez, No. 3:16-
8 cv-02287-LB, 2016 WL 4268679, at *2 (N.D. Cal. Aug. 15, 2016) (citing E & J Gallo Winery v.
9 F. & P. S.p.A., 899 F. Supp. 465, 466 (E.D. Cal. 1994)).
10 Personal jurisdiction is an issue too. The plaintiff has the burden of establishing personal
11 jurisdiction over the defendants in a lawsuit. Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015).
12
13 2. Application
14 The plaintiff does not plausibly plead a Bivens claim against the United States.
15 First, the plaintiff alleged that that someone in a local Sheriff’s office wrongfully gave
16 information from the Criminal Justice Information Systems to his former employer (because that
17 information can be used only for a law-enforcement purpose). He alleges no wrongful conduct by
18 any federal employee. A private right of action for damages may be implied from the Constitution
19 itself for constitutional violations by federal employees or their agents. Bivens, 403 U.S. at 392–97
20 (1971) (Fourth Amendment unreasonable search and seizure). But a plaintiff may not sue state
21 actors directly under the Constitution under a Bivens theory of recovery, even if a remedy is not
22 available to the plaintiff under 42 U.S.C. § 1983. Martinez v. City of L.A., 141 F.3d 1373, 1382 (9th
23 Cir. 1998) (plaintiff who cannot sue under § 1983 because he is not a citizen or alien resident of
24 U.S. cannot sue state police officers under Bivens).
25 Second, a Bivens remedy exists solely against individual federal officials, not against the United
26 States. Kreines v. United States, 33 F.3d 1105, 1109 (9th Cir. 1994); Thomas-Lazear v. FBI, 851
27 F.2d 1202, 1207 (9th Cir. 1988). Because the purpose of Bivens is to deter the individual officer, the
1 Bivens remedy does not extend to damages actions against federal agencies, even where individual
2 officers are protected by qualified immunity. FDIC v. Meyer, 510 U.S. 471, 484–86 (1994).
3 Third, the exclusive remedy for money-damages claims against the United States is under the
4 Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671–2680, which waived the sovereign
5 immunity of the United States for certain torts committed by federal employees acting within the
6 scope of their employment. Id. at 475–76; see 28 U.S.C. § 2680(h) (the intentional-torts exception
7 does not apply to certain intentional torts (assault, battery, false imprisonment, false arrest, abuse of
8 process or malicious prosecution) committed by a federal “investigative or law enforcement
9 officer”). A related issue is exhaustion of administrative remedies and the statute of limitations for
10 any FTCA claim. A plaintiff must exhaust administrative remedies for his claim before filing an
11 FTCA action in federal court. 28 U.S.C. § 2675(a); Alvarado v. Table Mt. Rancheria, 509 F.3d
12 1008, 1018–19 (9th Cir. 2007). The FTCA’s statute of limitations is not jurisdictional and may be
13 equitably tolled. United States v. Wong, 575 U.S. 402, 407 (2015). This applies to both of the
14 FTCA’s limitation provisions found in 28 U.S.C. § 2401(b): the two-year period for filing a claim
15 with the appropriate agency and the six-month period for filing suit after agency denial. Id. at 406;
16 Gallardo v. United States, 755 F.3d 860, 864 (9th Cir. 2014). A claim accrues within the meaning
17 of § 2401(b) when the plaintiff knows both the existence and the cause of his injury, and not at a
18 later time when he also knows that the acts inflicting the injury may constitute a claim. United
19 States v. Kubrick, 444 U.S. 111, 118–25 (1979); see, e.g., Gallardo, 755 F.3d at 864 (negligence
20 claim against U.S. Marine Corps in connection with sexual assault accrued when plaintiff became
21 aware of her injury and its immediate cause, not when she learned of the Corps’ negligence). A
22 litigant seeking equitable tolling of the FTCA’s limitation provisions must establish two elements:
23 (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his
24 way. Wong, 575 U.S. at 407–08. Given that the offending conduct took place in 2014, the plaintiff
25 does not plausibly plead that he could bring an FTCA claim.
26 Fourth, and similarly, a Bivens claim likely is time barred. Assuming that the injury happened in
27 California (a prerequisite to this court’s jurisdiction), California’s two-year personal injury statute
1 (9th Cir. 1991) (holding that § 1983 statute of limitations applies to Bivens actions). The statute of
2 limitations is an affirmative defense which may not be raised by the court sua sponte. Krug v.
3 Imbordino, 896 F.2d 395, 396 (9th Cir. 1990). But it may be grounds for sua sponte dismissal under
4 28 U.S.C. § 1915 where the defense is complete and obvious from the face of the pleadings or the
5 court’s own records. Franklin v. Murphy, 745 F.2d 1221, 1228–30 (9th Cir. 1984).
6 Fifth, the plaintiff does not seek monetary relief. The only available relief in a Bivens action is
7 an award of money damages for any injuries caused by a defendant acting in his or her individual
8 capacity. Ministerio Roca Solida v. McKelvey, 820 F.3d 1090, 1093–96 (9th Cir. 2016). A federal
9 court lacks subject matter jurisdiction over a Bivens suit that seeks only equitable relief. Id. at
10 1095 (citing Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157,
11 1173 (9th Cir. 2007)).
12 Finally, the plaintiff has the burden of establishing this court’s jurisdiction, including personal
13 jurisdiction over any defendant. Ranza, 793 F.3d at 1068. The plaintiff lives here now, but many
14 of his allegations are about events in Florida. Even assuming a federal actor’s involvement, a tort
15 in Florida likely does not give rise to the court’s personal jurisdiction here over a defendant there.
16 Walden v. Fiore, 571 U.S. 277, 283–91 (2014). Also, if the events took place in Florida, and the
17 defendants reside there, there is no venue in this district. 28 U.S.C. § 1391(b).
18 In sum, the plaintiff cannot bring a Bivens claim against the DOJ and instead must name
19 individual federal defendants in their individual (and not official) capacities. Daly-Murphy v.
20 Winston, 837 F.2d 348, 355 (9th Cir. 1988). He cannot bring a Bivens claim only for equitable
21 relief. Any claims likely are untimely. And it is uncertain whether the court would have personal
22 jurisdiction over any individual federal defendant or venue over the lawsuit.
23 More fundamentally, it is not certain what relief the plaintiff seeks. To the extent that he seeks
24 finality about what claims he may have, this order may provide that insight.
25 Because the plaintiff did not plausibly plead any claims, the court gives notice of the
26 complaint’s deficiencies and offers the plaintiff an opportunity to cure those deficiencies if he can.
27 The court appreciates the attention that the plaintiff gave to his complaint, including providing
1 case and the lack of involvement by any federal actors in the alleged wrongdoing, the court
2 suggests that the plaintiff probably cannot cure the complaint’s deficiencies.
3
4 CONCLUSION
5 The plaintiff must file any amended complaint by May 18, 2021. Another option is that if this
6 || order provides the clarity that the plaintiff seeks, he can file a one-page dismissal of his case. If the
7 plaintiff does not file an amended complaint by May 18, 2021, the court will reassign the case to a
8 district judge and recommend that the newly assigned judge dismiss the case.
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10 IT IS SO ORDERED. LAE
11 Dated: April 20, 2021
LAUREL BEELER
%L United States Magistrate Judge
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