Summary
finding that Plaintiff's allegations that he was "harassed, mistreated, treated like a criminal and treated different than his coworkers" and that he was asked to perform tasks that his manager and supervisor would then report as unauthorized to, even if credited as true, did not constitute that type of "extreme and outrageous" conduct that could support an intentional infliction of emotional distress claim in the context of employment, even if Plaintiff was terminated as a result
Summary of this case from Snipes v. WilkieOpinion
CASE NO. 5:13-cv-01220 EJD
03-17-2014
AL ZEINY, Plaintiff(s), v. UNITED STATES OF AMERICA, et. al., Defendant(s).
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS
[Docket Item No(s). 9, 14]
Pro se Plaintiff Al Zeiny ("Plaintiff") initiated this action on March 19, 2013, against the United States of America, the Central Intelligence Agency ("CIA"), the Federal Bureau of Investigation ("FBI"), "unknown agents and informants" of the CIA, and Areva, Inc. ("Areva") based on alleged "atrocious acts" committed against him by the CIA. Notably, this is Plaintiff's second action on this same topic, the first having been dismissed by this court on October 10, 2012.
The United States, CIA, and FBI will be referred to collectively as the "Federal Defendants."
Plaintiff's original action was assigned case number 5:12-cv-02752 EJD, and is referred to as Zeiny I in this order.
Presently before the court are two motions to dismiss, one filed by the Federal Defendants and one filed by Areva. See Docket Item Nos. 9, 14. Plaintiff has filed written oppositions to both motions. See Docket Item Nos. 10, 23. The court determined these matters were suitable for decision without oral argument and previously vacated the associated motion hearing.
Plaintiff's pleadings have once again been liberally construed because he is proceeding without counsel. See Abassi v. Immigration & Naturalization Serv., 305 F.3d 1028, 1032 (9th Cir. 2002).
According to the Complaint, federal jurisdiction arises pursuant to 28 U.S.C. § 1331. See Compl., Docket Item No. 1, at ¶ 3. Having carefully reviewed the relevant documents, the court finds the motions to dismiss meritorious. They will each be granted for the reasons stated below.
I. BACKGROUND
As it did in Zeiny I, the court recounts those facts from the Complaint most relevant to resolving the instant matters. Plaintiff is Muslim and was born in Egypt. Id. at ¶ 19. He came to the United States in 1991, attended graduate school and eventually obtained a Ph.D. in civil engineering in 1995. Id. He became a United States citizen in 2002. Id.
At the core of the Complaint is Plaintiff's allegation that a "group of CIA agents" have a "personal interest" in "bankrupting" Plaintiff and driving him out of the country. Id. at ¶ 20. To that end, Plaintiff contends the FBI and CIA infiltrated his employers and turned them against him. In 2008, Plaintiff was fired from a job in South Carolina after his coworkers and managers became suspicious of him. Id. at ¶ 23. Plaintiff then voluntarily left another job under similar circumstances. Id. at ¶ 26.
Plaintiff eventually moved to California and began working at Areva in December, 2008. Id. at ¶ 27. But once there Plaintiff began to experience the same negative treatment he experienced before. Id. at ¶ 28. He believes the FBI and CIA communicated with Areva, as it did with his prior employers. Id. This communication between Areva and the government was apparently confirmed by Plaintiff's supervisor on April 19, 2011. Id. at ¶ 39.
Plaintiff was also personally threatened by someone he believes was a covert CIA agent on more than one occasion. Id. at ¶¶ 25, 31. Each time, the agent told Plaintiff that he and his family members in Egypt would be arrested and tortured by Egyptian national security police if he complained about CIA misconduct. Id. This agent also attempted to mislead Plaintiff into believing the FBI, rather than the CIA, was responsible for the threats. Id. at ¶ 32. In other conversations, CIA agents told Plaintiff that he could have no more than four friends, had to shut down his websites, had to withdraw from "Islamic activities," and had to withdraw all complaints lodged with his congressperson. Id. at ¶ 49. He was also told he could not open a new Islamic center because "only covert CIA agents can open new Islamic Centers." Id. at ¶ 53.
Plaintiff alleges that he attempted to commit suicide on October 20, 2011, as a result of these events. Id. at ¶ 42. While he was hospitalized, Plaintiff contends that his treating doctor offered him a deal on behalf of the CIA. Id. at ¶ 44. "The deal was to give plaintiff one year of disability benefits in exchange of Plaintiff leaving the country by finding a job in United Arab Emirates or returning permanently to Egypt." Id. When Plaintiff refused the deal, his doctor frightened him from taking legal action against the FBI. Id. He attempted suicide again on August 13, 2012, and believes the CIA attempted to orchestrate his murder during the hospital stay. Id. at ¶ 68.
In his request for relief, Plaintiff seeks monetary damages of $100,000,000.00 and a detailed injunction against the CIA and the FBI.
II. LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)
A Rule 12(b)(1) motion challenges subject matter jurisdiction and may be either facial or factual. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). A facial 12(b)(1) motion involves an inquiry confined to the allegations in the complaint, whereas a factual 12(b)(1) motion permits the court to look beyond the complaint to extrinsic evidence. Id. When a defendant makes a facial challenge, all material allegations in the complaint are assumed true, and the court must determine whether lack of federal jurisdiction appears from the face of the complaint itself. Thornhill Publ'g Co. v. General Tel. Elec., 594 F.2d 730, 733 (9th Cir. 1979). "A party invoking the federal court's jurisdiction has the burden of proving the actual existence of subject matter jurisdiction." Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996).
B. Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient specificity to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). A complaint which falls short of the Rule 8(a) standard may be dismissed if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). "Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory." Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). The factual allegations "must be enough to raise a right to relief above the speculative level" such that the claim "is plausible on its face." Twombly, 550 U.S. at 556-57.
When deciding whether to grant a motion to dismiss, the court generally "may not consider any material beyond the pleadings." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990). The court must accept as true all "well-pleaded factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). The court must also construe the alleged facts in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1988). However, the court may consider material submitted as part of the complaint or relied upon in the complaint, and may also consider material subject to judicial notice. See Lee v. City of Los Angeles, 250 F.3d 668, 688-69 (9th Cir. 2001). But "courts are not bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555.
III. DISCUSSION
Plaintiff has asserted eight causes of action, five of which are challenged by the Federal Defendants in their motion to dismiss. They are (1) personal injury, (2) obstruction of justice, (3) harassment, (4) obstruction of medical treatment, and (5) violation of civil rights. One cause of action for intentional infliction of emotional distress is asserted against and challenged by Areva. Each of these is discussed below in the context of each motion.
A. The Federal Defendants' Motion to Dismiss
1. The Tort Claims
The Federal Defendants's argue Plaintiff's causes of action fail for various reasons, most of which were addressed in Zeiny I. Indeed, despite the court's prior notation, Plaintiff has again asserted claims under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, against federal agencies - namely the FBI and CIA - as well as against individual but unidentified federal agents. But it is still true that "[t]he United States is the only proper defendant in an FTCA action." Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995). Thus, Plaintiff's claims are improper to the extent he seeks relief against any specific agencies or individuals working for those agencies.
They do not, however, contend that Plaintiff failed to exhaust the FTCA's presentation requirement, as codified in 28 U.S.C. § 2675(a), since Plaintiff's administrative claim dated October 11, 2012, was denied by the CIA on March 11, 20132. The Federal Defendant's Request for Judicial Notice (Docket Item No. 15), which contains documents related to the administrative claim, is GRANTED.
Next, the court notes that allegations of misrepresentation and deceit underlie most, if not all, of Plaintiff's claims against the Federal Defendants. See, e.g., Compl., at ¶ 32 ("In an attempt to mislead plaintiff to believe that the FBI is the responsible party, the Augusta, Georgia covert CIA agent who threatened plaintiff has introduced himself to plaintiff as an FBI affiliate."); ¶ 44 ("In the first counseling session with Dr. Hirsch . . . . [she] did not advise plaintiff that it is actually the CIA and not the FBI."); ¶ 51 ("In addition, plaintiff knew that many members in his community are covert FBI (CIA) agents and they will have access to this private information."); ¶ 66 ("One CIA agent introduced herself to plaintiff as a peace activist. She used malicious tactics to take money from plaintiff, waste his money and efforts, and confuse his efforts by making demands and giving false promises."); see also Pl.'s Opp'n, Docket Item No. 23, at ¶ 5 ("The expression 'FBI (CIA)' is used to indicate that Plaintiff initially thought that the FBI is responsible of the mentioned allegation but later he discovered that the CIA is the responsible party."). Such claims are not cognizable under the FTCA because it precludes governmental liability for "[a]ny claim arising out of . . . libel, slander, misrepresentation, deceit, or interference with contract rights." 28 U.S.C. § 2680(h). Thus, the tort claims fail as a matter of law on that ground as well.
Furthermore, the allegations contained in the Complaint are not sufficient to state a claim against the Federal Defendants. The court reiterates here as it did in Zeiny I that the "United States [is] liable . . . in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674(b). This means that any cause of action asserted against the United States must be a valid cause of action in California. See Conrad v. United States, 447 F.3d 760, 767 (9th Cir. 2006).
Looking at the Complaint, "obstruction of justice" is not a cognizable civil cause of action in this state despite corresponding criminal statutes addressing that topic. See Agnew v. Parks, 172 Cal. App. 2d 756, 765-66 (1959). Nor does it appear that "obstruction of proper medical treatment" is a viable claim in California, and the court is unable based on the allegations to analogize it to one that would be considered viable. In any event, Plaintiff has not plead facts describing some species of legally recoverable damages for this claim even if the court was to assume its viability. See Piscitelli v. Friedenberg, 87 Cal. App. 4th 953, 989 (2001) ("Whatever its measure in a given case, it is fundamental that damages which are speculative, remote, imaginary, contingent, or merely possible cannot serve as a legal basis for recovery.").
Finally, the Complaint is deficient overall. Plaintiff has failed to identify any facts which draw a plausible connection between the unidentified agents and the unfortunate series of events that apparently befell him. For that reason, Plaintiff has not satisfied the applicable pleading standard for any cause of action asserted against the Federal Defendants. See Twombly, 550 U.S. at 556-57. Moreover, the speculative theory described in the Complaint, which involves a conspiracy of clandestine CIA control over Plaintiff's travel, religious practice, medical care, and employment due to no reason other than his national origin and involvement with the Muslim community, makes these claims subject to dismissal under the substantiality doctrine. See Hagans v. Lavine, 415 U.S. 528, 537 (1974) ("[F]ederal courts are without power to entertain claims otherwise within their jurisdiction if they are so attenuated and unsubstantial as to be absolutely devoid of merit, wholly insubstantial, obviously frivolous, plainly unsubstantial, or no longer open to discussion."). The instant "allegations appear similar to those in a number of cases that district courts have dismissed for patent insubstantiality: that plaintiff was subjected to a campaign of surveillance and harassment deriving from uncertain origins. . . ." Tooley v. Napolitano, 586 F.3d 1006, 1010 (D.C. Cir. 2009).
On that note, documentation submitted with the opposition to this motion suggests the FBI may actually have been interested in Plaintiff because he downloaded unauthorized software on government-owned computers while working for the Department of Energy. See Docket Item No. 24, at Ex. B.
Much like Zeiny I, Plaintiff's tort claims against the Federal Defendants face a series of obstacles under Rules 12(b)(1) and 12(b)(6). But in the end, the determination that Plaintiff's claims are barred by the substantiality doctrine renders them incapable of being asserted in federal court. Accordingly, the first, fifth, sixth, and seventh causes of action are dismissed with prejudice as other courts have done on similar findings. See Ticktin v. CIA, No. CV 08-998-PHX-MHM, 2009 U.S. Dist. LEXIS 29693, at *9-10, 2009 WL 976517 (D. Ariz. Apr. 9, 2009) (collecting similar cases).
Plaintiff cites a case from the Seventh Circuit Court of Appeals, Loubser v. Thacker, 440 F.3d 439 (2006), as an example of a conspiracy-theory case that was allowed to proceed past the pleadings stage. While the court generally agrees with Plaintiff that lawsuits should not be dismissed simply because a government conspiracy is alleged, it is not persuaded that the holding in Loubser changes the outcome here since the case is distinguishable for several reasons. First, it was decided prior to the United Supreme Court's decisions in Iqbal and Twombly, which are widely considered to have heightened the plausibility requirement for federal pleadings. And notably, the judges who decided Loubser were split on whether the plaintiff even satisfied the pleading standard in effect prior to Iqbal and Twombly. Second, the district court in Loubser dismissed the action based on two doctrines not at issue in this case, namely Rooker-Feldman and the domestic relations exception to federal jurisdiction. There is no discussion of the substantiality doctrine. Third, the Loubser court reversed after holding only that the two doctrines cited by the district court were improperly applied. The court did not hold that the plaintiff's case should proceed; in fact, it was skeptical of the allegations, describing them as "highly improbable." Considering this commentary, there may have been other reasons to dismiss the action that were not before the Seventh Circuit in that particular appellate proceeding.
2. The Civil Rights Claim
Plaintiff again includes a cause of action for violation of unspecified civil rights. But whatever the legal basis for this claim, it is still improperly asserted against the Federal Defendants because "suits against the United States brought under the civil rights statutes are barred by sovereign immunity." Affiliated Prof'l Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999). It was also finally decided in Zeiny I and therefore barred by res judicata. See Stewart v. U.S. Bancorp, 297 F.3d 953, 956-57 (9th Cir. 2002) (holding that a dismissal with prejudice is an adjudication on the merits to which res judicata applies). For these reasons, it is dismissed with prejudice.
B. Areva's Motion to Dismiss
For reasons similar to those discussed above, Plaintiff's claim against Areva for intentional infliction of emotional distress is equally subject to dismissal under the substantiality doctrine. It is also subject to dismissal for failure to state a claim.
To support a claim for intentional infliction of emotional distress a plaintiff must show the following elements: "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1001 (1993) (internal quotations omitted). Conduct is "outrageous" if it is "so extreme as to exceed all bounds of that usually tolerated in a civilized community." Id.
Plaintiff's allegations against Areva do not establish the first element of an emotional distress claim. Plaintiff contends he was "harassed, mistreated, treated like a criminal and treated different than his coworkers" and that he was asked to perform tasks that his manager and supervisor would then report as unauthorized to "establish pretext to justify the planned termination" of Plaintiff as part of a conspiracy with the CIA. See Compl., at ¶¶ 28, 41, 78. These mostly conclusory allegations, even if credited as true, do not constitute that type of "extreme and outrageous" conduct that could support an intentional infliction of emotional distress claim in the context of employment, even if Plaintiff was terminated as a result. Janken v. GM Hughes Elec., 46 Cal. App. 4th 55, 80 (1996) ("A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged.").
In addition, this cause of action must be dismissed as plead against Plaintiff's former employer because emotional distress claims made within the context of the employment relationship fall within the exclusive remedy provisions of the California Workers' Compensation Act. See Cole v. Fair Oaks Fire Protection Dist., 43 Cal. 3d 148, 160 (1987) ("When the misconduct attributed to the employer is actions which are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances, an employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code by characterizing the employer's decisions as manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance resulting in disability."). At bottom, all of the actions Plaintiff attributes to Areva fall within the scope of the employer-employee relationship save for the connection to the CIA. That allegation, however, is not supported by anything other than speculation and, for this reason, the cases cited by Plaintiff are unpersuasive here.
Thus, in addition to deficiency under the substantiality doctrine, Plaintiff cannot as a matter of law state a claim for intentional infliction of emotional distress against Areva. Because the claim cannot be remedied by amendment, it will be dismissed with prejudice.
IV. ORDER
Based on the foregoing, the motions to dismiss (Docket Item Nos. 9, 14) are GRANTED. The first, second, fifth, sixth, seventh and eighth causes of action are DISMISSED WITH PREJUDICE.
Judgment will be entered in favor of Areva since this disposition resolves the only cause of action asserted against it.
IT IS SO ORDERED.
Dated: March 17, 2014
/s/_________
EDWARD J. DAVILA
United States District Judge