(PS) Wise v. Director of the Federal Bureau of Investigations ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSH WISE, No. 2:21-CV-2269-JAM-DMC 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATIONS, et al., 15 Defendants. 16 17 18 Plaintiff, who is proceeding pro se, brings this civil rights action. Pending before 19 the Court is Plaintiff’s original complaint, ECF No. 1. 20 The court is required to screen complaints brought by litigants who have been 21 granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under this screening 22 provision, the court must dismiss a complaint or portion thereof if it: (1) is frivolous or malicious; 23 (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a 24 defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(A), (B). Moreover, 25 pursuant to Federal Rule of Civil Procedure 12(h)(3), this court must dismiss an action if the court 26 determines that it lacks subject matter jurisdiction. Because Plaintiff has been granted leave to 27 proceed in forma pauperis, the court will screen the complaint pursuant to § 1915(e)(2). Pursuant 28 to Rule 12(h)(3), the court will also consider as a threshold matter whether it has subject-matter 1 jurisdiction. 2 Plaintiff lists the following as defendants: (1) Director of the Federal Bureau of 3 Investigations; (2) Federal Bureau of Investigations (“FBI”); (3) Attorney General of the United 4 States Department of Justice; (4) President Joseph Biden; and (5) 1-60 Doe defendants. ECF No. 5 1, pg. 1. In short, Plaintiff states that he has been harassed by the “terrorist group known as the 6 USA FBI” and seeks one hundred billion dollars. See id. at 2-8. 7 Plaintiff’s claims are barred by the doctrine of sovereign immunity. “Suits against 8 the federal government are barred for lack of subject matter jurisdiction unless the government 9 expressly and unequivocally waives its sovereign immunity.” Mills v. United States, 742 F.3d 10 400, 404 (9th Cir. 2014). Without a waiver, sovereign immunity bars both equitable and legal 11 claims against the United States, its agencies, and its officers acting in their official capacities. 12 See Assiniboine & Sioux Tribes of Fort Peck Indian Reservation v. Bd. Of Oil & Gas Cons. Of 13 State of Mont., 792 F.2d 782, 792 (9th Cir. 1986). The party suing the United States bears the 14 burden of identifying an unequivocal waiver of immunity. See Holloman v. Watt, 708 F.2d 1399, 15 1401 (9th Cir. 1983). 16 Defendant FBI is a federal agency, and Defendants Director of the FBI, Attorney 17 General of the United States Department of Justice, and President Joseph Biden are all federal 18 officials whom Plaintiff appears to have sued in their official capacity. The complaint does not 19 identify any basis for a waiver of sovereign immunity. Therefore, Plaintiff has failed to 20 demonstrate that the Court has jurisdiction over his claims. 21 Because it does not appear possible that the deficiencies identified herein can be 22 cured by amending the complaint, Plaintiff is not entitled to leave to amend prior to dismissal of 23 the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 Based on the foregoing, the undersigned recommends that this case be dismissed 2 | with prejudice under the doctrine of sovereign immunity and that Plaintiff's motion, ECF No. 3, 3 | for injunctive relief be denied as moot. 4 These findings and recommendations are submitted to the United States District 5 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 6 | after being served with these findings and recommendations, any party may file written 7 | objections with the court. Responses to objections shall be filed within 14 days after service of 8 | objections. Failure to file objections within the specified time may waive the right to appeal. See 9 | Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991), 10 11 | Dated: March 9, 2022 Ssvcqo_ 12 DENNIS M. COTA 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28