Zeiny v. The United States of America et al, No. 5:2017cv07023 - Document 28 (N.D. Cal. 2018)

Court Description: Order granting 14 Motion to Dismiss. Signed by Magistrate Judge Howard R. Lloyd on 3/16/2018. (hrllc3S, COURT STAFF) (Filed on 3/16/2018)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 AL ZEINY, 7 Plaintiff, 8 ORDER ON DEFENDANTS' MOTION TO DISMISS v. 9 THE UNITED STATES OF AMERICA, et al., 10 11 United States District Court Northern District of California Case No.17-cv-07023-HRL Re: Dkt. No. 14 Defendants. 12 Pro se plaintiff Dr. Al Zeiny (“Zeiny”) sues the United States and the Central Intelligence 13 14 Agency (“CIA”) (collectively “Defendants”). Defendants move to dismiss the complaint under 15 Rules 12(b)(1) and 12(b)(6). Dkt. No. 14. Having considered the papers, the Court finds this 16 matter suitable for decision without oral argument. Civil L.R. 7-1(b). For the reasons described 17 below, the Court grants the motion and dismisses the complaint without leave to amend. All parties have consented to magistrate judge jurisdiction. Dkt. Nos. 13, 17. 18 19 I. BACKGROUND 20 Zeiny, an Egyptian-born civil engineer and naturalized U.S. citizen, claims he is being 21 harassed by rogue agents from the CIA. Dkt. No. 1 at 5. Zeiny has made similar accusations 22 before. He filed suit in this district in 2012 and again in 2013, each time accusing the government 23 of persecuting him. Judge Davila dismissed both cases on motions under Rules 12(b)(1) and 24 12(b)(6). See Zeiny v. United States of America, et al., 5:13-cv-01220 EJD, 2014 WL 1051641 25 (N.D. Cal. 2014) (“Zeiny II”); Zeiny v. United States of America, et. al., 5:12-cv-02752 EJD, 2012 26 WL 4845617 (N.D. Cal. 2012) (“Zeiny I”).1 27 28 1 Judge Davila concluded that this case was not related to the earlier cases. Dkt. No. 10. 1 The Court recounts only the allegations most relevant to resolution of this motion. The 2 complaint contains a non-exhaustive list of twenty three acts of sabotage and harassment 3 committed by the CIA against Zeiny. He says the CIA, partly in retaliation for the earlier 4 lawsuits, wants to “make [Zeiny] an example in the community of what would happen to anyone 5 that dares to complain or stand against the [CIA].” Dkt. No. 1 at 5. To that end, the CIA installed 6 “transmitters” in Zeiny’s ears and “in the ears of some of the key people” in his life. Id. at 8-10. 7 The CIA used the transmitters to communicate with these key people, and thereby enlist them in 8 the anti-Zeiny campaign. Id. The CIA also spied on Zeiny in his home using “harmful radiational 9 imaging.” Id. at 6. CIA agents tampered with Zeiny’s medications and drugged him with PCP. Id. at 5-6. 11 United States District Court Northern District of California 10 In 2014, Zeiny moved into an apartment in New Jersey, where he had found a job with a 12 company called Enercon. The company dismissed Zeiny after only five days, and Zeiny was 13 forced to give up the apartment. Zeiny alleges that the CIA was behind his ouster at Enercon, and 14 behind his roommate’s refusal to refund the security deposit on the apartment. Id. at 7-8. 15 On two occasions, agents left a decapitated animal carcass on the street near Zeiny’s home. 16 Zeiny says this was a death threat from the CIA. Id. at 9. Zeiny included photos of a dead animal 17 lying in the street as an exhibit to his opposition. Dkt. No. 20, Ex. F. 18 The CIA also engaged in less extreme acts of harassment. Agents made unauthorized 19 purchases with Zeiny’s credit card and interfered with his online orders: Zeiny would order one 20 thing on the internet, only to later receive something else. Dkt. No. 1 at 8-9. Zeiny “is not aware 21 of someone who has the interest and ability to do so other than the [CIA].” Id. at 9. Agents also 22 sabotaged Zeiny’s home termite treatment, causing the pests to return a few months after a dodgy 23 technician fumigated the house. Id. at 8 24 Zeiny says “he was told” that the CIA was behind his troubles. Id. at 6. He also says he 25 observed “bizarre clues” and people acting in strange ways, which led him to conclude that CIA 26 agents were pulling the strings. Id. at 6-8. In his opposition, Zeiny explains his refusal to 27 elaborate on his sources as a strategic choice: “Zeiny receives his information from individuals 28 who sympathize with him as well as relatives inside the CIA. He is not going to ‘reward’ them for 2 1 their help and support by blowing their cover.” Dkt. No. 19 at 22. Zeiny fears that the CIA or Egyptian security forces will arrest him and deprive him of his 2 3 medications, without which, he says, he will die within three days. Dkt. No. 1 at 10-11. Zeiny filed a complaint in December 2017 asserting two causes of action. First, Zeiny sues 4 5 the United States for infliction of emotional distress. Id. at 11-12. His second cause of action is 6 for an injunction against the CIA. Id. at 12. Defendants moved to dismiss, Dkt. No. 14, and Zeiny 7 filed an opposition, Dkt. Nos. 19, 20. 8 II. 9 10 LEGAL STANDARDS 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 United States District Court Northern District of California 11 factual. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). A facial 12(b)(1) motion 12 involves an inquiry confined to the allegations in the complaint, whereas a factual 12(b)(1) motion 13 permits the court to look beyond the complaint to extrinsic evidence. Id. When a defendant 14 makes a facial challenge, all material allegations in the complaint are assumed true, and the court 15 must determine whether lack of federal jurisdiction appears from the face of the complaint itself. 16 Thornhill Publ'g Co. v. General Tel. Elec., 594 F.2d 730, 733 (9th Cir. 1979). “A party invoking 17 the federal court's jurisdiction has the burden of proving the actual existence of subject matter 18 jurisdiction.” Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996). 19 B. 20 Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a Federal Rule of Civil Procedure 12(b)(6) 21 short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint 22 that fails to meet this standard may be dismissed under Federal Rule of Civil Procedure 12(b)(6). 23 To survive a motion to dismiss, a complaint must allege “enough facts to state a claim to relief that 24 is plausible on its face.” Bell Atlantc Corp. v. Twombly, 550 U.S. 544, 570 (2007). In considering 25 a motion to dismiss, a court accepts all of the plaintiff’s factual allegations as true and construes 26 the pleadings in the light most favorable to the plaintiff. See Manzarek v. St. Paul Fire & Marine 27 Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). However, a court will not assume the truth of legal 28 conclusions, and must consider obvious alternative explanations for the defendant’s behavior. See 3 1 Eclectic Properties E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014) 2 (quoting Twombly, 550 U.S. at 682). “Dismissal may also be based on the absence of a cognizable 3 legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 4 A court must liberally construe pleadings by litigants who represent themselves. See 5 Haines v. Kerner, 404 U.S. 519 (1972). Dismissal of a pro se complaint without leave to amend is 6 proper only if it is “absolutely clear that no amendment can cure the defect.” Murphy v. United 7 States Postal Serv., C 14-02156-SI, 2014 WL 4437731, at *2 (N.D. Cal. 2014) (quoting Hughes v. 8 Rowe, 449 U.S. 5, 9-10 (1980)). 9 III. 10 DISCUSSION Zeiny’s first claim is for intentional and negligent infliction of emotional distress, and United States District Court Northern District of California 11 Zeiny sues under the Federal Tort Claims Act, 28 U.S.C. § 2674 (“FTCA”). The claim is subject 12 to dismissal under Rule 12(b)(6) because Zeiny fails to allege “enough facts to state a claim for 13 relief that is plausible on its face.” Twombly, 550 U.S. at 570. Zeiny presents a litany of 14 complaints about unfortunate events, some relatively trivial, like botched orders from online 15 retailers, and others more serious, like death threats and poisoning with PCP. Yet the complaint 16 does not include anything to plausibly tie those occurrences to Defendants. Zeiny does not offer 17 any particulars as to who the rogue agents are or why they would go to such lengths to “make him 18 an example in the community” for daring to file his other lawsuits. Dkt. No. 1 at 5. Zeiny says he 19 cannot think of anyone other than the CIA who would have the interest or ability to, for example, 20 cause his online purchases to go awry, id. at 9, but ultimately, the accusation is purely speculative. 21 Zeiny’s claim that he “was told” of CIA involvement but cannot reveal his sources – for fear of 22 blowing their cover – is similarly inadequate. A plaintiff must put forward factual allegations 23 sufficient to “raise a right to relief above the speculative level” such that the claim is “plausible on 24 its face.” Twombly, 550 U.S. at 556-57. Were the case to move forward, Zeiny would probably 25 have to reveal his sources through discovery. That he refuses to do so now leaves his complaint 26 lacking in the factual support needed to survive a motion under Rule 12(b)(6). 27 28 Zeiny’s second claim, for an injunction against the CIA, is subject to dismissal under Rules 12(b)(1) and 12(b)(6). Zeiny asks the Court to bar the CIA from inflicting further emotional 4 1 distress on him, and to make sure that the guilty parties are punished. Dkt. No. 1 at 12. Zeiny 2 clarifies that he is not suing under the FTCA, but instead under California Civil Procedure Code 3 §§ 527.6 and 527.8. Id. Under § 527.6, a person may obtain injunctive relief to protect against 4 harassment. Section 527.8 allows employees to seek injunctive relief against unlawful violence or 5 threats in the workplace. 6 “A request for injunctive relief by itself does not state a cause of action . . . An injunction 7 is a remedy, not a separate claim or cause of action. Jensen v. Quality Loan Serv. Corp., 702 F. 8 Supp. 2d 1183, 1201 (E.D. Cal. 2010) (citations and quotation marks omitted). If injunctive relief 9 is proper, it is because a plaintiff prevails on an independent cause of action or meets the necessary test for such relief under Federal Rule of Civil Procedure 65. Ramos v. Chase Home Fin., 810 F. 11 United States District Court Northern District of California 10 Supp. 2d 1125, 1133 (D. Haw. 2011). Defendants point out that some courts have treated requests 12 for injunctive relief under Civ. Proc. Code § 527.6 as an independent cause of action. See Everette 13 v. Milburn, No. 16-CV-05935-MMC, 2016 WL 7049034, at *1 (N.D. Cal. 2016) (quoting 14 Nakamura v. Parker, 156 Cal. App. 4th 327, 225 (2007)). However, the United States and its 15 agencies may only be sued when Congress has explicitly consented to suit. FDIC v. Meyer, 510 16 U.S. 471, 475 (1994). “Sovereign immunity is jurisdictional in nature. Indeed, the ‘terms of [the 17 United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit.” 18 Id. (citation omitted). Waiver of sovereign immunity must be “unequivocally expressed” in the 19 statutory text. Dep't of Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999) (citation omitted). 20 Here, to the extent Zeiny is simply asking for an injunction, he fails to state a cognizable 21 claim because an injunction is a remedy, not an independent cause of action. Even if the Court 22 were to treat his complaint as asserting independent claims under Cal. Civ. Proc. Code §§ 527.6 or 23 527.8, nothing in either statute suggests Congress “unequivocally expressed” its consent to be 24 sued thereunder. The claim would therefore be subject to dismissal for lack of subject matter 25 jurisdiction. 26 Finally, and more fundamentally, the complaint is subject to dismissal under the 27 substantiality doctrine. “[F]ederal courts are without power to entertain claims otherwise within 28 their jurisdiction if they are so attenuated and unsubstantial as to be absolutely devoid of merit, 5 wholly insubstantial, obviously frivolous, plainly unsubstantial, or no longer open to discussion.” 2 Zeiny I, 2012 WL 4845617, at *6 (quoting Hagans v. Levine, 415 U.S. 528, 537 (1974)); cf. 3 Ashcroft v. Iqbal, 556 U.S. 662, 695-96 (Souter, J., dissenting) (“The sole exception to th[e] rule 4 [that allegations must be credited at the pleading stage applies to] allegations that are sufficiently 5 fantastic to defy reality as we know it: claims about little green men, or the plaintiff's recent trip to 6 Pluto, or experiences in time travel.”). One common theme in such cases is alleged harassment by 7 the intelligence services. See Ticktin v. CIA, No. CV08-998-PHX-MHM, 2009 WL 976517, at *4 8 (D. Ariz. Apr. 9, 2009) (collecting cases). Another is plaintiffs who say the government put 9 spying equipment in their bodies. See, e.g., Detar v. United States Gov't, 174 F. Supp. 3d 566, 570 10 (D.D.C. 2016) (dismissing claim under substantiality doctrine where plaintiff alleged government 11 United States District Court Northern District of California 1 implanted electrical device in his body). 12 Zeiny points out that dismissal under the substantiality doctrine is reserved for claims that 13 are “essentially fictitious,” “bizarre,” “fantastic,” and “supernatural.” Best v. Kelly, 39 F.3d 328, 14 330-31 (D.C. Cir. 1994). He objects to comparisons with cases involving “little green men,” 15 insisting that his allegations are more plausible. As he puts it, “[B]eing paranoid about something 16 does not mean it is not happening either.” Dkt. No. 19 at 16. 17 Zeiny is right about the standard, but wrong about the conclusion. The Court is satisfied 18 that the complaint presents precisely the kinds of insubstantial claims over which a federal court 19 lacks jurisdiction. Accordingly, amendment would be futile, so the Court dismisses the entire 20 complaint without leave to amend. 21 IV. 22 23 24 25 CONCLUSION The hearing scheduled for March 20, 2018, is vacated. Because this order resolves the case, judgment will be entered and the Clerk shall close the file. IT IS SO ORDERED. Dated: March 16, 2018 26 HOWARD R. LLOYD United States Magistrate Judge 27 28 6