Athans v. Federal Bureau of Investigation

Full title: James Athans, Jr., Plaintiff, v. Federal Bureau of Investigation, United…

Court: United States District Court, D. Arizona

Date published: Aug 3, 2007

No. CV 06-2433-PHX-MHM (D. Ariz. Aug. 3, 2007)

Opinion

No. CV 06-2433-PHX-MHM.

August 3, 2007

ORDER

MARY MURGUIA, District Judge

Presently pending before the Court is Defendants' Motion to Dismiss Plaintiff's Complaint (Doc. 5). Plaintiff has filed a Response (Doc. 7) and Defendants have filed a Reply (Doc. 9). Plaintiff has also filed a Motion to Amend his Complaint (Doc. 8), a Motion for Judicial Review (Doc. 6), and a Motion for a Court Order to Seize Evidence (Doc. 10). The Court considers the papers submitted and issues the following Order.

BACKGROUND

Plaintiff James Athans, Jr., proceeding pro se, commenced this action on September 5, 2006 in Maricopa County Superior Court. Plaintiff's Complaint alleges obstruction of justice, slander, libel, personal endangerment, attempted murder, illegal wire tapping, doping of Plaintiff's meals "at restaurants and coffee shops around [the] city" (Pla. Comp. at ¶ 2-4, 6), and unlawful surveillance. For these claims, Plaintiff demands one billion dollars ($1,000,000,000) in compensatory damages and five hundred million ($500,000,000) in punitive damages. Defendants, the Federal Bureau of Investigation ("F.B.I.") and the United States Department of Justice, removed the action to this Court on October 12, 2006.

On November 13, 2006, Defendants filed a Motion to Dismiss, pursuant to Rule 12(b)(1), Fed.R.Civ.P., alleging that this Court lacks jurisdiction because Plaintiff failed to exhaust his administrative remedies with regard to his claims of slander, libel, personal endangerment, attempted murder, and "doping." Further, Defendants allege, pursuant to Rule 12(b)(6), Fed.R.Civ.P., that Plaintiff fail to state a claim upon which relief can be granted with regard to his claims of obstruction of justice, illegal wire tapping, and unlawful surveillance. Plaintiff then filed a Motion to Amend his Complaint in an effort to overcome Defendants' Motion to Dismiss.

LEGAL STANDARD

Rule 12(b)(1) of the Federal Rules of Civil Procedure allows this Court to dismiss a claim for lack of jurisdiction. "It is a fundamental principle that federal courts are courts of limited jurisdiction." Owen Equip. Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Thus, the plaintiff bears the burden of establishing subject matter jurisdiction. Scott v. Breeland, 792 F.2d 925, 927 (9^th Cir. 1986). When a defendant challenges the factual existence of jurisdiction, as opposed to the sufficiency of the allegations in the complaint, the Court may properly consider facts outside of the complaint, can evaluate disputed facts to determine jurisdiction, and need not assume the truthfulness of the allegations in the complaint. Doe v. Schacter, 804 F.Supp. 53, 56 (N.D.Cal. 1992), citing Thornhill Pub. v. General Tel. Elec. Corp., 594 F.2d 730, 733-35 (9^th Cir. 1979). However, "where the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits, the jurisdictional determination should await a determination of the relevant facts on either a motion going to the merits or at trial." Doe, 804 F.Supp. at 57.

A motion to dismiss for failure to state a claim will be denied unless it is "clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Falkowski v. Imation Corp., 309 F.3d 1123, 1132 (9^th Cir. 2002), citing Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). "Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required." Fed.R.Civ.P. 8(e). In all averments of fraud or mistake, however, the circumstances constituting fraud or mistake must be stated with particularity. Fed.R.Civ.P. 9(b). The allegations must be "specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." Semegen v. Weidner, 780 F.2d 727, 731 (9^th Cir. 1985). These rules "do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds on which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957).

DISCUSSION

I. THIS COURT'S JURISDICTION OVER PLAINTIFF'S COMPLAINT

Defendants assert that the Court lacks jurisdiction over Plaintiff's claims of slander, libel, personal endangerment, attempted murder, and "doping" of Plaintiff's meals "at restaurants and coffee shops around [the] city" (Pla. Comp. at ¶ 2-4, 6) because Plaintiff did not exhaust his administrative remedies because he did not present his allegations to the F.B.I. prior to filing suit.

"The terms of the United States' consent to be sued in any court define that court's jurisdiction to entertain the suit."Cato v. United States, 70 F.3d 1103, 1107 (9^th Cir. 1995) (citing F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994)). Although the Federal Tort Claims Act waives the sovereign immunity of the United States for actions in tort, the Act provides that no suit shall be instituted under the Act "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" or the agency fails to make a final disposition of the claim within six months after it was filed. 28 U.S.C. § 2675(a). Exhaustion of administrative remedies is a jurisdictional prerequisite to an FTCA suit in federal court. Bruns v. National Credit Union Admin., 122 F.3d 1251, 1254 (9^th Cir. 1997); Jerves v. United States, 966 F.2d 517, 519 (9^th Cir. 1992).

Plaintiff does not dispute Defendants' assertion that he failed to exhaust his administrative remedies with regard to the above-mentioned claims. Instead, Plaintiff states as follows:

As to the Defendant's claim that this Plaintiff failed to exhaust the appropriate administrative remedies . . . the evidence that [Plaintiff] includes of the Defendant's misconduct during the service process should level some credence to the claim of Defendant's misconduct during Plaintiff's attempts to first exhaust such remedies.

Pla. Resp. at 2. However, Plaintiff's assertion is not compelling. Regardless of any alleged misconduct by Defendants during service of process, Plaintiff has failed to meet his burden of establishing that he exhausted his administrative remedies, which required Plaintiff to file an administrative claim with the F.B.I. or the Justice Department regarding the allegations in his Complaint before he filed the instant lawsuit. Plaintiff has not met his burden of proof under Rule 12(b)(1), Fed.R.Civ.P. Accordingly, Defendants' Motion to Dismiss is granted with regard to Plaintiff's claims of slander, libel, personal endangerment, attempted murder, and "doping."

II. FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

Defendants move to dismiss Plaintiff's claims of obstruction of justice, illegal wire tapping, and unlawful surveillance, pursuant to Rule 12(b)(6), Fed.R.Civ.P., arguing that Plaintiff cannot bring these claims against the United States because the United States has never waived its sovereign immunity to constitutional torts. Hooker v. U.S. Dept. of Health and Human Services, 858 F.2d 525, 526 n. 1 (9^th Cir. 1988).

The Federal Tort Claims Act (FTCA) is the exclusive jurisdictional basis for tort damage type lawsuits against the United States. The FTCA does not include a waiver of sovereign immunity for constitutional tort claims. Cato v. United States, 70 F.3d 1103, 1111 (9^th Cir. 1995). The FTCA does not include a waiver of sovereign immunity for claims based on breaches of federal statutes, which cannot be remedied under the FTCA. Roundtree v. United States, 40 F.3d 1036, 1038 (9^th Cir. 1994); Delta Savings Bank v. U.S., 265 F.3d 1017, 1024-27 (9^th Cir. 2001), cert. denied Kim v. United States, 435 U.S. 1082 (2002). Such a waiver "cannot be implied but must be unequivocally expressed." United States v. Mitchell, 445 U.S. 535, 538 (1980).

The Court construes Plaintiff's claims of obstruction of justice, illegal wire tapping, and unlawful surveillance as constitutional torts. As such, these claims cannot be brought against the F.B.I. or the Department of Justice. Accordingly, Defendants' Motion to Dismiss Plaintiff's claims of obstruction of justice, illegal wire tapping, and unlawful surveillance are dismissed.

III. PLAINTIFF'S REQUEST TO AMEND HIS COMPLAINT

Plaintiff seeks leave of the Court to amend his Complaint to include "factual accounting" of the events underlying his claims. Pla. Resp. at 3. However, Plaintiff has provided no indication that he could amend his Complaint in a manner that would overcome a Motion to Dismiss. Accordingly, Plaintiff's request for leave to amend his Complaint is denied. See Rutman Wine Co. v. E J Gallo Winery, 829 F.2d 729, 738 (9^th Cir. 1987) (a court may properly deny leave to amend where a proposed amendment would be futile).

CONCLUSION

For the foregoing reasons,

IT IS ORDERED that Defendants' Motion to Dismiss (Doc. 5) is granted in its entirety. This action is hereby dismissed.

IT IS FURTHER ORDERED that Plaintiff's Motion to Amend his Complaint (Doc. 8) is denied.

IT IS FURTHER ORDERED that Plaintiff's Motion for Judicial Review of Misconduct by the Defendants During Process of Service (Doc. 6) is denied as moot.

IT IS FURTHER ORDERED that Plaintiff's Motion for Court Order to Seize Evidence (Doc. 10) is denied as moot.

IT IS FURTHER ORDERED that the Clerk shall terminate this action.