Friend v. US Attorney General

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 HORACE G. FRIEND, CASE NO. C21-5566JLR 11 Plaintiff, ORDER v. U.S. ATTORNEY GENERAL, Defendant.

15 I. INTRODUCTION 16 Before the court are (1) pro se Plaintiff Horace G. Friend’s complaint against Defendant the United States Attorney General (“the Attorney General”) (Compl. (Dkt.

18 # 6); and (2) Magistrate Judge S. Kate Vaughan’s order granting Mr. Friend in forma pauperis (“IFP”) status and recommending that the court review this action pursuant to 28 U.S.C. § 1915(e)(2)(B) (IFP Order (Dkt. # 5)). Under 28 U.S.C. § 1915(e), courts have authority to review IFP complaints and must dismiss them if “at any time” it is determined that a complaint is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. As discussed below, Mr. Friend’s complaint falls within the category of pleadings that the court must dismiss.

4 II. BACKGROUND 5 On July 24, 2021, Mr. Friend filed a declaration and application to proceed IFP and a proposed complaint, which were received by the Clerk’s office on August 4, 2021.

7 (IFP App. (Dkt. # 1); Prop. Compl. (Dkt. # 1-1).) Mr. Friend filed a corrected IFP application on August 16, 2021 (Corrected IFP App. (Dkt. # 4), which Magistrate Judge Vaughan granted on August 31, 2021 (IFP Order). Mr. Friend’s proposed complaint was subsequently filed on the docket. (Compl.)

11 Mr. Friend’s complaint alleges that the Attorney General has violated his constitutional rights. (Id. at 1-2.) The complaint further alleges that these violations arise because, over the course of multiple decades, his “application for the return of his stolen certificate of citizenship” has been ignored, and his applications for “a U.S. Passport” and replacement Social Security card have been denied. (Id.) Mr. Friend names only the Attorney General as a defendant. (Id. at 1.)

17 As relief, Mr. Friend asks the court to “correct[]” “the wrong perpetrated against him.” (Id. at 2.)

19 III. ANALYSIS 20 Title 28 U.S.C. § 1915(e)(2)(B) authorizes a district court to dismiss a claim filed IFP “at any time” if it determines: (1) the action is frivolous or malicious; (2) the action fails to state a claim; or (3) the action seeks relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). Section 1915(e)(2) parallels the language of Federal Rule of Civil Procedure 12(b)(6). Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000). The complaint therefore must allege facts that plausibly establish the defendant’s liability. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007).

5 Because Mr. Friend is a pro se plaintiff, the court must construe his pleadings liberally.

6 See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

7 At bottom, Mr. Friend appears to allege that he has suffered a deprivation of constitutional rights because he has been denied access to various government documents, including a “certificate of citizenship,” a passport, and a Social Security card.

10 (Compl. at 1.) Even liberally construed, however, Mr. Friend’s factual allegations are wholly inadequate to plausibly establish the Attorney General’s liability or raise his “right to relief above the speculative level.” See Twombly, 550 U.S. at 555. The court thus concludes that Mr. Friend’s complaint fails to state a claim.

14 To begin, Mr. Friend relies on 42 U.S.C. § 1983 as the basis for his lawsuit against the Attorney General. (See Compl.; Civ. Cover Sheet (Dkt. # 1-2)). That statute, however, pertains to violations of federal rights committed by state officials, see 42 17 U.S.C. § 1983, and “‘provides no cause of action against federal agents acting under color of federal law,’” Paeste v. Gov’t of Guam, 798 F.3d 1228, 1237 (9th Cir. 2015) (quoting Billings v. United States, 57 F.3d 797, 801 (9th Cir. 1995)). Mr. Friend’s complaint does not allege that the Attorney General was acting pursuant to state law (see generally Compl.) and so the court will liberally construe Mr. Friend’s claim as “an action under the authority of Bivens [v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)],” Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987). “[A] Bivens action is the federal analog to an action against state or local officials under § 1983,” and is the proper vehicle for “seek[ing] to hold federal officers individually liable for constitutional violations.” Starr v. Baca, 652 F.3d 1202, 1206 (9th Cir. 2011).

6 Even if his claim is construed as a Bivens action, however, Mr. Friend fails to state a claim because “a Bivens action can be maintained against a defendant in his or her individual capacity only, and not in his or her official capacity.” Daly-Murphy, 837 F.2d 9 at 355. Mr. Friend’s complaint contains no allegation that the Attorney General acted in an individual capacity to deprive Mr. Friend of his constitutional rights, nor is there reason to construe the complaint in that manner. (See generally Compl.)

12 Ultimately, even if the court construes Mr. Friend’s complaint in a manner that avoids these pleading deficiencies, the sparse allegations would still require dismissal.

14 Complaints need not include detailed factual allegations but must contain facts sufficient to place the defendant on notice of what the claims are and the grounds upon which they rest. See Starr, 652 F.3d at 1216 (requiring complaints to “contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively”). Mr. Friend’s complaint fails to provide such notice. Indeed, it does not allow either the court or Attorney General to discern—without significant speculation— the nature of the constitutional rights Mr. Friend believes are at issue, whether Mr. Friend has suffered any cognizable harm from his inability to access the enumerated documents, or how the Attorney General’s conduct is connected to any such harm.

1 Accordingly, the court concludes that Mr. Friend’s complaint fails to state a claim against the Attorney General and dismisses his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).

4 When a court dismisses a pro se plaintiff’s complaint, it must give the plaintiff leave to amend “[u]nless it is absolutely clear that no amendment can cure the defect[s].”

6 Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam). Thus, the court grants Mr. Friend fourteen (14) days to file an amended complaint that properly addresses the pleading deficiencies identified in this order. If Mr. Friend fails to timely comply with this order or fails to file an amended complaint that corrects the identified deficiencies, the court will dismiss his complaint without leave to amend.

11 IV. CONCLUSION 12 For the foregoing reasons, the court DISMISSES Mr. Friend’s complaint (Dkt. # 6) for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B) with leave to amend within fourteen (14) days of the filing of this order.

15 Dated this 3rd day of September, 2021.

16 A JAMES L. ROBART 18 United States District Judge