Meyer v. Federal Bureau of Investigation

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ERIKA KATRIN MEYER, Case No. 3:22-cv-1779-SI

Plaintiff, ORDER

v.

FEDERAL BUREAU OF

INVESTIGATION and CENTRAL

INTELLIGENCE AGENCY,

Defendants.

Michael H. Simon, District Judge.

Plaintiff Erika Katrin Meyer is a self-represented, or pro se, litigant who brings this case

against the Federal Bureau of Investigation (FBI) and the Central Intelligence Agency (CIA).

Plaintiff alleges that the FBI and CIA are using biomedical devices, including devices implanted

in Plaintiff’s teeth and throughout her head and neck and in her home, to surveil her, emit

radioactive material, and emit wireless frequencies that harm Plaintiff and her pets. Plaintiff

asserts claims alleging violations of her rights under several Oregon criminal laws, her Fourth

Amendment right under the U.S. Constitution to be free from unlawful search and seizure, and

her Fifth Amendment right under the U.S. Constitution to due process.1

After filing her complaint, Plaintiff filed a “Motion to Amend Complaint for Injunction to

Include Temporary Restraining Order” (ECF 4), which the Court construes as a motion for a

temporary restraining order (TRO). She also moved to proceed in forma pauperis (ECF 3). The

Court grants Plaintiff’s application to proceed in forma pauperis, but finds that even under the

liberal pleading standards afforded a pro se plaintiff, Plaintiff fails to state a claim upon which

relief may be granted. Accordingly, for the reasons stated below, the Court dismisses this case.

A. Legal Standards

Congress established that when a complaint is filed by a plaintiff proceeding in forma

pauperis, “the court shall dismiss the case at any time if the Court determines that” the action is:

(1) “frivolous or malicious”; (2) “fails to state a claim on which relief may be granted”; or

(3) “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C.

§ 1915(e)(2). Courts perform a preliminary screening to determine whether complaints brought

1 In her motion for a temporary restraining order (TRO), Plaintiff describes her claims as

including claims under the First Amendment protection of freedom of speech, Eighth

Amendment protection from cruel and unusual punishment, and Fourteenth Amendment

protections against deprivations of life, liberty, and property without due process. These claims

are not alleged in her complaint. Even assuming her motion for TRO is intended to amend her

complaint to assert such claims, Meyer fails to state a claim. The Fourteenth Amendment applies

to state actors and she fails to allege any injury by a state actor. Her Eighth and First Amendment

claims fail because they are against the agencies in general and constitutional claims against a

federal agency can be brought only against federal officials in their individual capacities

pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971). She does not name any federal officer in his or her official capacity, nor does she

describe a claim that is accepted under Bivens, which the Supreme Court has narrowly construed.

See Egbert v. Boule, 213 L. Ed. 2d 54, 142 S. Ct. 1793, 1803-04 (2022). Plaintiff may not

“enjoin official action” under a Bivens claim because it would be “barred by the doctrine of

sovereign immunity.” Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482

F.3d 1157, 1173 (9th Cir. 2007) (“[T]he Supreme Court has refused to extend Bivens remedies

from individuals to agencies.”).

by self-represented litigants and litigants proceeding in forma pauperis raise cognizable claims.

See, e.g., O’Neal v. Price, 531 F.3d 1146, 1151 (9th Cir. 2008) (“After a prisoner applies for in

forma pauperis status and lodges a complaint with the district court, the district court screens the

complaint and determines whether it contains cognizable claims. If not, the district court must

dismiss the complaint.”); Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (noting that

“section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners”);

Preciado v. Salas, 2014 WL 127710, at *l (E.D. Cal. Jan. 14, 2014) (“The Court is required to

screen complaints brought by plaintiffs proceeding pro se and in forma pauperis.”).

A complaint is frivolous “where it lacks an arguable basis either in law or fact.” Neitzke

v. Williams, 490 U.S. 319, 325 (1989); see also Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996).

The term “frivolous,” when used to describe a complaint, “embraces not only the inarguable

legal conclusion, but also the fanciful factual allegation.” Neitzke, 490 U.S. at 325.

A complaint fails to state a claim when there is no cognizable legal theory or the factual

allegations are insufficient to support a claim for relief. Shroyer v. New Cingular Wireless Servs.,

Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual

allegations, the court must accept as true all well-pleaded material facts alleged in the complaint

and draw all reasonable inferences in favor of the plaintiff. Wilson v. Hewlett-Packard Co., 668

F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th

Cir. 2010). But to be entitled to a presumption of truth, the complaint must do more than simply

allege legal conclusions couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79

(2009). The plaintiff “may not simply recite the elements of a cause of action, but must [provide]

sufficient allegations of underlying facts to give fair notice and to enable the opposing party to

defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The underlying

factual allegations must “plausibly suggest an entitlement to relief.” Id. (emphasis added). “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.” Iqbal, 556

U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

Self-represented, or pro se plaintiffs receive special dispensation. A court must liberally

construe the filings of a pro se plaintiff and afford the plaintiff the benefit of any reasonable

doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Further, “a pro se complaint, however

inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by

lawyers.” Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 923 n.4 (9th Cir. 2011)

(quotation marks omitted). “Unless it is absolutely clear that no amendment can cure the

defect, . . . a pro se litigant is entitled to notice of the complaint’s deficiencies and an opportunity

to amend prior to dismissal of the action.” Garity v. APWU Nat’l Lab. Org., 828 F.3d 848, 854

(9th Cir. 2016) (alteration in original) (quoting Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th

Cir. 1995) (per curiam)). But even a pro se plaintiff must offer more than “‘labels and

conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Iqbal, 556 U.S.

at 678 (quoting Twombly, 550 U.S. at 555).

B. Analysis

Plaintiff’s claims under Oregon’s criminal statutes fail. First, the FBI and CIA are not

required to enforce Oregon’s criminal statutes. The FBI enforces federal law. The CIA does not

enforce law domestically. Second, a plaintiff does not have a constitutional right to, or, in fact,

any judicially cognizable or enforceable interest in, the criminal prosecution or non-prosecution

of another person. See Leeke v. Timmerman, 454 U.S. 83, 86-87 (1981); Linda R.S. v. Richard

D., 410 U.S. 614, 619 (1973). “The benefit that a third party may receive from having someone

else arrested for a crime generally does not trigger protections under the Due Process Clause,

neither in its procedural nor in its ‘substantive’ manifestations.” Town of Castle Rock v.

Gonzales, 545 U.S. 748, 768 (2005).

Plaintiff’s constitutional claims against the FBI and CIA also fail. The United States and

its agencies have sovereign immunity in federal court unless that immunity is waived. United

States v. Mitchell, 445 U.S. 535, 538 (1980). The United States “may waive its sovereign

immunity, but any waiver must be unequivocally expressed in statutory text and will not be

implied.” Ordonez v. United States, 680 F.3d 1135, 1138 (9th Cir. 2012) (citation and quotation

marks omitted). The “waiver of sovereign immunity is a prerequisite to federal-court

jurisdiction.” Tobar v. United States, 639 F.3d 1191, 1195 (9th Cir. 2011). Plaintiff does not

allege facts from which the Court can construe any basis for waiver of sovereign immunity.

Liberally construing Plaintiff’s complaint, the Court considers three possible sources of a

waiver of sovereign immunity. First, in the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346,

2671-2680, Congress waived “the United States’ sovereign immunity for claims arising out of

torts committed by federal employees.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217-18

(2008). A claimant may not bring an action in federal court pursuant to the FTCA’s waiver of

sovereign immunity, however, until the claimant has exhausted the FTCA’s administrative

remedies. McNeil v. United States, 508 U.S. 106, 113 (1993) (“FTCA bars claimants from

bringing suit in federal court until they have exhausted their administrative remedies.”). Plaintiff

does not plausibly allege any individual federal employee committed a tort, nor does Plaintiff

allege that she exhausted the FTCA’s administrative remedies. See 28 U.S.C. § 2675(a) (a party

may not bring an action against United States unless the party first presents the claim to the

appropriate federal agency); Cadwalder v. United States, 45 F.3d 297, 300 (9th Cir. 1995) (the

FTCA “administrative claim prerequisite is jurisdictional”).

Second, under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971), a plaintiff may bring certain narrow claims against federal officials in their

individual capacities. See Egbert v. Boule, 213 L. Ed. 2d 54, 142 S. Ct. 1793, 1803-04 (2022). A

plaintiff may not, however, “enjoin official action” under Bivens. See n.1, supra. Plaintiff fails to

allege any claim against a federal officer in his or her individual capacity.

Finally, under § 702 of the Administrative Procedure Act (APA), 5 U.S.C. § 702, the

federal government waived sovereign immunity for final agency action. Plaintiff, however, does

not allege facts showing any final agency action as that term is used in the APA. Thus, Plaintiff’s

constitutional claims are not cognizable.

Even if the Court had jurisdiction, Plaintiff’s claims fail on the merits. Plaintiff alleges

that the FBI and CIA have implanted biomedical devices in Plaintiff’s body and home, have

tampered with physical files in her house, have tampered with files on her computer and external

hard drives, have tampered with her accounts maintained on the cloud, have surveilled her

computer, house, phone, and text messages, and that the FBI and CIA’s technology controls

thoughts and behavior. Plaintiff asserts that these alleged bioweapons have caused her extreme

physical injury, injured her pets, and killed her husband. The Court is not “required to accept as

true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable

inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see also

Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (explaining that a complaint may properly be

dismissed sua sponte if the allegations are found to be “fanciful,” “fantastic,” or “delusional,” or

if they “rise to the level of the irrational or the wholly incredible”); Nietzke, 490 U.S. at 327

(explaining that a court may dismiss a complaint sua sponte that contains “claims describing

fantastic or delusional scenarios”); Sparling v. Hoffman Constr. Co., 864 F.2d 635, 638 (9th

Cir. 1988) (holding that a district court may sua sponte dismiss for failure to state a claim

without notice or an opportunity to respond when the plaintiff cannot possibly win relief).

Plaintiff’s claims are not plausible. They fail to state a claim and are “frivolous,” “fanciful,”

“fantastic,” and “delusional” as those terms are used under § 1915. See Ayres v. Obama, 2013

WL 5754953, at *2 (D. Haw. Oct. 22, 2013) (concluding that allegations that FBI implanted

biochips in the plaintiff and her family to turn them into “a living vegetable or a New World

Order slave” were “so ‘fantastic’ and ‘fanciful’ as to be clearly baseless”); cf. Bivolarevic v. U.S.

CIA, 2010 WL 890147, at *1-2 (N.D. Cal. Mar. 8, 2010) (concluding that the court lacked

subject matter jurisdiction due to “essentially fictitious, obviously frivolous” claims that CIA

subjected plaintiff to a “satellite powered” “mind-altering mechanism” using “microwave

technology” as a “mind control weapon”).

Although the Court is skeptical that Plaintiff can cure the deficiencies identified in this

Order and both allege jurisdiction (by alleging a waiver of sovereign immunity) and sufficiently

state a claim on the merits, the Court will allow Plaintiff the opportunity to file an amended

complaint if she believes she can do so. Plaintiff, however, may not replead her claims under

state criminal law.

C. Temporary Restraining Order

Plaintiff moves for a TRO enjoining the FBI and CIA from continuing to use the alleged

bioweapons and their alleged surveillance activities and evidence destruction relating to Plaintiff.

Because the Court dismisses Plaintiff’s Complaint, the Court denies Plaintiff’s motion for a TRO

as moot.

D. Conclusion

The Court GRANTS Plaintiff’s application to proceed in forma pauperis, ECF 3.

Plaintiff’s Complaint (ECF 1) is DISMISSED as frivolous and for failure to state a claim upon

which relief may be granted. The Court DENIES AS MOOT Plaintiff’s motion for TRO

(ECF 4). Plaintiff may file an amended complaint on or before December 30, 2022, if Plaintiff

believes she can cure the deficiencies identified in this Order.

IT IS SO ORDERED.

DATED this 29th day of November, 2022.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge