United States District Court, W.D. Washington, Seattle
ORDER DISMISSING ACTION UNDER 28 U.S.C. §
L. ROBART, UNITED STATES DISTRICT JUDGE.
the court is pro se Plaintiff Anthony Herbert's
complaint. (Compl. (Dkt. # 8).) Mr. Herbert requested and was
granted in forma pauperis status to file suit. (IFP
Mot. (Dkt. # 1); IFP Order (Dkt. # 7).) If a plaintiff
proceeds in forma pauperis, the court must dismiss
the complaint if the 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. 28 U.S.C. § 1915(e)(2)(B)(i), (ii), (iii). As
discussed below, Mr. Herbert's complaint falls within the
category of pleadings that the court must dismiss.
complaint, Mr. Herbert sues the “Federal Bureau of
Investigations” [sic] (“FBI”). (Compl. at
1.) Although Mr. Herbert's complaint is difficult to
understand, he alleges that the FBI “failed to protect
[him] by kicking [him] out of their office with aggressive
behavior, hanging up on [him] when [he] called to speak to a
duty officer[, ] and telling [him] that duty officers [do
not] talk to people on the phone.” (Id.) He
complains that an FBI agent told him to report the alleged
hacking of his computer and credit cards to the local police,
but the local police failed to help him as well.
(Id. at 1-2.)
Herbert also alleges a litany of experiences that he claims
have injured and from which the FBI has failed to protect
him. (See Id. at 2.) He asserts that his car has
been damaged and broken into, although he does say by whom.
(Id.) He further avers that his “lips have
been burned with acid” and that he was sexually
assaulted while he was a mental health patient at Harborview
Medical Center in Seattle, Washington, and also while he was
a patient at Valley Medical Center in Renton, Washington.
(Id.) He further alleges that he has “received
a ticket of some sort by almost every local police agency
twice.” (Id.) He also alleges that he called
911 from his hotel on Highway 99 and waited 20 minutes for
the ambulance to arrive and was later arrested for telephone
harassment and had his iPhone 7 seized as evidence.
(Id.) He asserts that the FBI's failure to
protect him from these events, as well as from public
harassment and at least three assaults, amounts to an
“assassination attempt.” (Id.)
remedy, Mr. Herbert seeks an injunction “[r]estraining
the FBI from stalking, harassing, intimidating, threatening[,
] or sabotaging [him] or his cars.” (Id.) He
also seeks $1, 000, 000, 000.00 in damages. (Id.)
Mr. Herbert is proceeding in forma pauperis, the
court must dismiss his case if the court determines that his
action: (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2)(B). Because Mr. Herbert is a pro
se plaintiff, the court must construe his pleadings
liberally. See McGuckin v. Smith, 974 F.2d 1050,
1055 (9th Cir. 1992). Mr. Herbert does not indicate the law
under which he brings his claims. (See generally
Compl.) However, under a liberal construction, Mr. Herbert
appears to be attempting to bring an action for the
deprivation of federal or constitutional rights, which is
known as a “Bivens” action. See
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
Bivens action cannot be maintained against the FBI,
because the purpose of Bivens is to deter federal
officers-not federal agencies. See F.D.I.C. v.
Meyer, 510 U.S. 471, 484-85 (1994) (“If we were to
imply a damages action directly against federal agencies,
thereby permitting claimants to bypass qualified immunity,
there would be no reason for aggrieved parties to bring
damages actions against individual officers . . . [and] the
deterrent effects of the Bivens remedy would be
lost.”). Consequently, Mr. Herbert cannot sue the FBI
under Bivens. See Murphy v. Gordwin, No.
06-16924, 2007 WL 4570579, at *1 (9th Cir. Dec. 28, 2007)
(affirming the dismissal of a Bivens claim against
the FBI); Smith v. F.B.I., No. 01-1384, 2001 WL
1450814, at *1 (6th Cir. Nov.6, 2001) (same).
the United States has not waived its sovereign immunity from
suit in actions seeking monetary damages for constitutional
violations. See Thomas-Lazear v. F.B.I., 851 F.2d
1202, 1207 (9th Cir. 1988) (“[T]he United States has
not waived its sovereign immunity in actions seeking damages
for constitutional violations”); see also F.D.I.C.
v. Meyer, 510 U.S. 471, 486 (1994) (declining to
recognize a direct action for damages against federal
agencies). Thus, Mr. Herbert's claim for damages is also
subject to dismissal pursuant to 28 U.S.C. §
the court must dismiss a complaint under 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim upon which
relief may be granted “if it appears beyond a doubt
that the plaintiff can prove no set of facts in support of
his claims that would entitle him to relief.”
Buckey v. Los Angeles, 968 F.2d 791, 794 (9th Cir.
1992). In addition, a finding of frivolousness under 28
U.S.C. § 1915(e)(2)(B)(i) is appropriate if the facts
alleged “rise to the level of the irrational or wholly
incredible.” Denton v. Hernandez, 504 U.S. 25,
33 (1992). Mr. Herbert's complaint meets the criteria for
dismissal under either § 1915(e)(2)(B)(i) or §
1915(e)(2)(B)(ii). Although the court does not doubt that Mr.
Herbert's beliefs are sincere, his allegations rise to
the level of the wholly incredible. Accordingly, the court
dismisses his complaint on this ground as well.
court must give a pro se litigant leave to amend his
or her complaint to state a claim unless it is absolutely
clear that amendment cannot cure the complaint's
deficiencies. See Lopez v. Smith, 203 F.3d 1122,
1130 (9th Cir. 2000) (en banc) (noting leave to amend should
be granted when a complaint is dismissed under 28 U.S.C.
§ 1915(e) “if it appears at all possible that the
plaintiff can correct the defect”). Because Mr. Herbert
has not pleaded a cognizable legal theory and it appears that
he cannot cure the defects in his complaint by alleging
additional facts, the court dismisses his action without
leave to amend. See Cahill v. Liberty Mut. Ins. Co.,
80 F.3d 336, 339 (9th Cir. 1996) (ruling that denial of leave
to amend is not an abuse of discretion where further
amendment would be futile).