Opinion
No. C 13-05994 LB
04-07-2014
FRANKLIN H. WRIGHT, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
[Re: ECF No. 18, 24, & 25]
INTRODUCTION
Franklin H. Wright, who is representing himself, sued Defendant United States of America, asserting claims for negligence, harassment, assault, breach of implied contract, violation of California Business and Professions Code section 6068, and constitutional violations involving the Department of Justice, including the U.S. Attorney's Office, the U.S. Marshals Service, and the Federal Bureau of Investigation, and the Central Intelligence Agency. See First Amended Complaint ("FAC"), ECF No. 10. The Government moves to dismiss all claims on different grounds including sovereign immunity, failure to exhaust administrative remedies, and failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons discussed, the court GRANTS the Government's motion to dismiss and gives Mr. Wright leave to amend within 28 days.
Citations are to the Electronic Case File ("ECF") with pin cites to the electronically-generated page numbers at the top of the document.
Pursuant to Civil Local Rule 7-1(b), the court finds this matter suitable for disposition without oral argument and vacates the motion hearing previously scheduled for April 17, 2014.
STATEMENT
I. PROCEDURAL HISTORY
In December 2013, Mr. Wright filed a complaint on behalf of "Jesse Schwartz, Sr. [apparently his father]; the Office of the President of the United States; and the U.S. Senate's Select Committee on Intelligence" against the Secretary of the Navy, the Attorney General of the United States, and the Director of the FBI. Complaint, ECF No. 1. He also filed a motion to proceed in forma pauperis, which the court granted. ECF Nos. 3, 6. On January 15, 2014, Wright filed the FAC on behalf of himself naming the Government as the sole Defendant. See FAC, ECF No. 10. Mr. Wright also alleges that he "files part of this action on behalf of the Office of the President of the United States and the Senate's Select Committee on Intelligence." Id. at 3. The Government moved to dismiss on March 7, 2014. See Motion to Dismiss ("Motion"), ECF No. 18. Mr. Wright filed an opposition brief, ECF No. 22, and the Government replied, ECF No. 26. Mr. Wright also filed an unopposed motion to amend his opposition, which the court grants, and a request for permission to file electronically, which the court denies. See ECF Nos. 24-25.
II. CLAIMS AND ALLEGATIONS IN THE FIRST AMENDED COMPLAINT
The complaint is 25 pages long and has 36 pages of exhibits. It also recites Mr. Wright's interactions with the federal government and some of his personal difficulties. It contains claims for breach of fiduciary duty, harassment, assault, violation of California Business and Professions Code section 6068(f) and (h), and constitutional violations. See FAC at 5.
A. Breach of Fiduciary Duty
The FAC asserts three claims for breach of fiduciary duty against the DOJ.
The first claim alleges that a U.S. Bankruptcy Trustee located in Chicago was assigned to Mr. Wright as part of his 2009 Chapter 7 bankruptcy proceedings. FAC at 9-10. Mr. Wright sent the bankruptcy trustee information that suggested his former employer owed him money but the trustee did not investigate and pursue Mr. Wright's claim. FAC at 9. Mr. Wright states that this led to "financial and reputational harm, homelessness, and career harm." Id. at 9-10. The DOJ is liable because it "maintains responsibility for U.S. Bankruptcy Trustees." Id. at 2, 10.
The second claim arises out of the Cleveland, Ohio U.S. Attorney's Office's alleged failure to investigate Mr. Wright's claim that "he was under the influence of some substance" that may have caused him to call 911 and scream for help. FAC at 11.
His third claim is that the FBI failed to investigate his complaint about violence against him. He sent the complaint in an email to the FBI San Francisco Office on December 15, 2013. Id. at 16.
B. Harassment Claims
The FAC also raises claims for harassment against the U.S. Marshals Service based on interactions between Mr. Wright and security officers at the Phillip C. Burton Federal Building in San Francisco. See FAC at 11-12. Between September 2013 and January 9, 2014, Mr. Wright visited the Burton Federal Building to use the library, file lawsuits, and visit offices. Id. at 11. Each time, Mr. Wright was asked where he was going and what he was doing, even though other visitors were not asked such questions. Id. Based on these questions, he asserts 29 claims of harassment.
During one visit, a U.S. Marshal reversed the flow of the security scanner, which caused Mr. Wright's laptop to fall to the floor and suffer "minor and intermittent damage." Id. This was an intentional attempt to intimidate Mr. Wright, giving rise to another harassment claim. Id.
Finally, on several occasions, Mr. Wright met with a threat investigator "suggesting [Mr. Wright] is some sort of threat." Id. at 12. This, too, is the basis for a harassment claim. Id.
C. Tort Claims Arising From Events on January 3, 2014
The FAC asserts claims for assault, harassment, and breach of fiduciary duty for alleged wrongs committed on January 3, 2014. See FAC at 13-16. On January 3, 2014, Mr. Wright visited the office of the Clerk of the Northern District of California "in order to view the original file of this case's complaint and to insist a summons be served." Id. at 13. He claimed that there was an error with service, asked to speak with the Clerk of the Court and told the staff he would suggest the Clerk fire them. Id. A Clerk's office employee called security. Id. Mr. Wright asserts claims for assault and harassment based on that employee's conduct. Id. at 14.
Mr. Wright then went to the San Francisco Federal Building at Mission and Seventh Streets. Id. There, he got into an argument with one of the court security officers ("CSO"). The CSO told Mr. Wright to leave the building. When Mr. Wright asked "why," the CSO said he would be "carried out," pulled out his pepper spray, and threatened to use it on Mr. Wright if he did not leave. Id. Mr. Wright left the building. He asserts two claims for assault by the CSO, one for the verbal threat and one for the CSO pulling the pepper spray from his belt. Id.
Next, Mr. Wright went to the South entrance to the building and asked a CSO if he could use the phone to call 911 regarding the earlier incident in the Clerk's office. Id. at 15. Mr. Wright was asked to leave. Instead, Mr. Wright stayed for 20 minutes, asked to use the phone to call 911 approximately 10 times, and was denied each time. Id. He asserts 10 claims for breach of fiduciary duty (one for each denial).
Mr. Wright then argued with four CSOs in the lobby of the Ninth Circuit. Id. The officers followed him out of the building. Mr. Wright asserts four claims of assault (one per officer). Id.
D. Breach of Implied Contract Against the FBI
The breach of implied contract claim alleges that the FBI declined to open an investigation in response to an e-mail Mr. Wright sent in December 2013 and that this breached an implied contract "that exists between the F.B.I. and U.S. Citizens." See FAC at 16-17.
E. California Business and Professions Code § 6068(f), (h)
The FAC alleges that two Assistant U.S. Attorneys in San Francisco violated California Buisness and Professions Code § 6068(f) and (h) in two separate incidents. See FAC at 5, 18. First, Mr. Wright met with an Assistant U.S. Attorney on December 11, 2013 and asked for assistance "just to print his case." FAC at 18. Apparently Mr. Wright's request was denied. See id.
Second, in "early January," Mr. Wright met with a different employee of the U.S. Attorney's Office in San Francisco, asked to meet with the U.S. Attorney, and asked to have the DOJ pay for "his exodus from the homeless shelter." FAC at 18. The employee told Mr. Wright "that's not going to happen" in a condescending tone of voice. Id.
F. Constitutional Claims
The FAC asserts two claims for violations of Mr. Wright's constitutional rights. First, in 2011, Mr. Wright was questioned by hospital nurses before being given a shot. Id. at 19. The CIA may have been involved. Id. Mr. Wright alleges that the pain in his head was excruciating and that this violated the prohibition on cruel and unusual punishments in the Eighth Amendment to the U.S. Constitution. Id.
Second, in listing the causes of action, the FAC mentions a claim "that defendants (in aggregate, as agents of United States) have violated Amendment XIII (U.S. Const.) Whereby Plaintiff is an 'involuntary servant.'" Id. at 6. The only factual allegations are that "the University of Chicago and the President have been using Plaintiff's information and work for their benefit, without permission and without market-value compensation." Id. at 25 n.15.
G. Relief Sought
Based on these allegations, Mr. Wright seeks relief including a monetary award of $800 per day, evidence related to his father's employment, a retirement package for his father, an in-person interview with the FBI, an FBI investigation into Mr. Wright's claims against the U.S. Marshals Service, an investigation into Mr. Wright's employment claims, money to buy a new laptop and software, punitive damages, free psychiatric treatment, and "to be 'read into' his life by ALL defendants." Id. at 19-21.
ANALYSIS
I. LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b)(1) permits defendants to move for dismissal of a complaint for lack of subject-matter jurisdiction. Because a plaintiff seeks to invoke federal jurisdiction by filing a complaint in federal court, a plaintiff bears the burden of establishing that jurisdiction. See, e.g., Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994); Farmers Ins. Exchange v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990). Hence, a plaintiff must plead sufficient facts in the complaint to establish the court's jurisdiction. Fed. R. Civ. P. 8(a)(1).
A defendant may mount either a facial or a factual challenge to the court's jurisdiction. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A facial attack asserts that the lack of federal jurisdiction appears on the face of the complaint. See Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). In this context, a court must "accept all allegations of fact in the complaint as true and construe them in the light most favorable to the plaintiffs." See id. In contrast, with a factual challenge, courts do not accept as true all facts in a plaintiff's complaint and may evaluate extrinsic evidence and resolve factual disputes when necessary. See Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (quoting Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)). Where a defendant asserts a factual challenge by presenting affidavits or other evidence, the party opposing the motion must present sufficient evidence to support the court's subject-matter jurisdiction. See Savage v. Glendale Union High School, Dist. No. 205, Maricopa County, 343 F.3d 1036, 1040 n. 2 (9th Cir. 2003). Dismissal of a complaint without leave to amend should be granted only where the jurisdictional defect cannot be cured by amendment. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." A motion to dismiss under Rule 12(b)(6) "tests the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In order to survive a motion to dismiss, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 557). In considering a motion to dismiss, a court must accept all of the plaintiff's allegations as true. Id. at 550; Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The plaintiff's complaint need not contain detailed factual allegations, but it must contain more than a "formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949. In reviewing a motion to dismiss, courts may also consider documents attached to the complaint. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995) (citation omitted). Additionally, courts may consider a matter that is properly the subject of judicial notice, such as matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).
II. THE CLAIMS
A. Breach of Fiduciary Duty Claims Against the DOJ
The alleged breaches are that (1) the Bankruptcy Trustee did not investigate his claim in 2009 that a former employer owed him money (and DOJ is responsible because it had a duty to investigate), (2) the DOJ failed to investigate his claim that he believed he was under the influence when he called 911 in 2011, and (3) the FBI failed to review his complaint about violence.
The government points out that Mr. Wright does not allege a fiduciary duty between himself and the DOJ (including the FBI), the 2009 claim is likely time-barred, and Mr. Wright did not establish that the bankruptcy trustee has a duty to investigate or pursue a claim or that the failure to do so at a debtor's urging is a breach See Motion at 5. Also, as discussed below, any tort claims under the Federal Tort Claims Act must be exhausted, Mr. Wright has not shown that they have been, and thus the court lacks jurisdiction.
B. Harassment Claims Against U.S. Marshals Service
The harassment claims are against the U.S. Marshals Service and are based on California Civil Code § 1708, which provides that "[e]very person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his or her rights." That defines a duty, not a right to sue. To the extent that they are viable tort claims under the FTCA, as discussed below, they must be exhausted, Mr. Wright has not shown that they have been, and thus the court lacks jurisdiction.
Section 1708 states only a general principle of law and does not provide a private cause of action. See Bolbol v. Feld Entertainment, Inc., No. C 11-5539 PSG, at *8-9 (N.D. Cal. Jan. 23, 2013) (collecting cases). "Section 1708 establishes only a duty to avoid injuring others and their property that permits a cause of action in tort when a defendant 'performs an act not authorized by law' that 'causes a substantial material loss to another.'" Id. (quoting City and Cnt. of San Francisco v. United Ass'n of Journeymen, 42 Cal. 3d 810, 814 (1986)).
C. January 3, 2014 Events
These harassment and assault claims are about Mr. Wright's experiences at the Clerk's Office and the Ninth Circuit. The harassment claims are based on Civil Code section 1708, which is not a private right of action. Mr. Wright does not show breach of a fiduciary duty to him. To the extent that they are viable tort claims under the FTCA, as discussed below, they must be exhausted, Mr. Wright has not shown that they have been, and thus the court lacks jurisdiction.
D. Breach of Implied Contract Against the FBI For Failure to Investigate
Mr. Wright's claim is about the FBI's failure to investigate acts of violence committed against him in the form of (1) "random acts of intermittent psychiatric issue or violence," (2) theft of his glasses from a McDonald's in Ohio, (3) complaints against federal judges in Ohio and Illinois, and (4) Mr. Wright's suspicions that his former employers may have conspired against him. See FAC at 16-18.
Under California law, "[a] contract is either express or implied." Retired Emps. Ass'n of Orange Cnty., Inc. v. County of Orange, 52 Cal. 4th 1171, 1178 (2011) (citing Cal. Civ. Code § 1619). "The existence and terms of an express contract are stated in words." Id. (citing Cal. Civ. Code § 1620). "The existence and terms of an implied contract are manifested by conduct." Id. (citing Cal. Civ. Code § 1621). "The distinction reflects no difference in legal effect but merely in the mode of manifesting assent." Id. "Accordingly, a contract implied in fact consists of obligations arising from a mutual agreement and intent to promise where the agreement and promise have not been expressed in words." Id. (internal quotation and citation omitted). The elements of a cause of action for breach of an express or implied contract are the same. See Gomez v. Lincare, Inc., 173 Cal. App. 4th 508, 525 (2009). The elements are: (1) the existence of the contract; (2) performance by the plaintiff or excuse for nonperformance; (3) breach by the defendant; and (4) damages. First Commercial Mortg. Co. v. Reece, 89 Cal. App. 4th 731, 745 (2001).
The FAC alleges that the FBI breached an implied contract by failing to investigate events that Mr. Wright asked them to investigate. See FAC at 16-18. The FAC has no factual allegations that there is a contractual relationship between Mr. Wright and the FBI, that the FBI breached it, that Mr. Wright performed his part of the contract, or that there are damages. There may be an issue with the statute of limitations, and if it has run, whether Mr. Wright can show excusable neglect. The FBI also has discretion about what to investigate. See Zeiny v. Johnson, No. C 13-03585 EJD, 2014 U.S. Dist. LEXIS 23844, *12-13 (N.D. Cal. Feb. 24, 2014).
E. Claims Against Assistant U.S. Attorneys
The claims here are about Mr. Wright's encounters with two Assistant United States Attorneys. The allegation is that their denial of his requests and overall condescension violates the California Business and Professions Code section 6068. See FAC at 18. California Business and Professions Code section 6068(f) and (h) state the following:
It is the duty of an attorney to do all of the following:
(f) To advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justices of the cause with which he or she is charged.These sections are about the duties of the attorneys. Even if the statute provided a private right to sue, the allegations do not state a claim. If Mr. Wright alleges a breach of a duty that constitutes a viable tort claim under the FTCA, as discussed below, the tort claim must be exhausted, Mr. Wright has not shown that it has been, and thus the court lacks jurisdiction.
. . .
(h) Never to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.
F. Constitutional Violations
The FAC alleges claims for violations of the Eighth and Thirteenth Amendments. See FAC at 19 (Eighth Amendment), 25 n.15 (Thirteenth Amendment).
The government moves to dismiss the Eighth Amendment claim because Mr. Wright was not a convicted prisoner at the time of the alleged violation. See Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986). Mr. Wright has not addressed the claim in his opposition and apparently abandons it. In any event, he does not state an Eighth Amendment claim.
The government moves to dismiss the Thirteenth Amendment claim for failure to state a claim. See Motion at 9. The claim is in a footnote and specifies that "the University of Chicago and the President have been using Plaintiff's information and work for their benefit, without permission and without market-value compensation." Again, Mr. Wright does not address the claim in his opposition and apparently abandons it. In any event, it does not state a Thirteenth Amendment violation because Mr. Wright has not alleged facts that plausibly claim involuntary servitude. See Brogan v. San Mateo Cnty., 901 F.2d 762, 764 (9th Cir. 1990).
G. Sovereign Immunity
An overarching issue for the tort claims is whether they are barred for failure to exhaust administrative remedies. The Federal Tort Claims Act is the exclusive remedy for persons injured by the negligent or wrongful acts or omissions of any employees of the federal government while acting within the scope of their employment. 28 U.S.C. § 2679(b)(1). The FTCA is also the exclusive remedy for tort actions against a federal agency, regardless of the agency's statutory authority to sue or be sued in its own name. See 28 U.S.C. § 2679(a) (1998); see Kennedy v. U.S. Postal Service, 145 F.3d 1077, 1078 (9th Cir. 1998) (per curiam).
Before filing suit under the FTCA, a plaintiff must present his or her administrative claim to the appropriate agency within two years of the incident, see 28 U.S.C. § 2401(b), and the agency must either "finally den[y]" her claim or fail to arrive at a "final disposition of [her] claim within six months after it is filed," see 28 U.S.C. § 2675(a). "The claim requirement of section 2675 is jurisdictional in nature and may not be waived." Burns v. United States, 764 F.2d 722, 723 (9th Cir. 1985). Where plaintiff fails to satisfy the claim requirement, the district court cannot assert subject matter jurisdiction over the plaintiff's FTCA claim. See 28 U.S.C. § 2675(a); McNeil v. United States, 508 U.S. 106, 111-12 (1993); Burns, 764 F.2d at 723. The plaintiff in an action seeking relief under the FTCA bears the burden of showing that he or she complied with the FTCA's administrative claim requirement. See Bruce v. United States, 621 F.2d 914, 918 (8th Cir. 1980).
Here, the FAC alleges claims for breach of fiduciary duty, harassment, and assault. See FAC at 9-19. The government argues that these claims are tort claims asserted against government agencies, the FTCA is the exclusive remedy for such claims, and Mr. Wright fails to allege facts showing that he exhausted administrative remedies with respect to these claims. See Motion at 9-10; Reply, ECF No. 26 at 2-5. Mr. Wright does not dispute any of these facts and explains that he "is not opposed to other existing relief forum(s) where the Court deems them more appropriate." Opp'n at 3. Thus, to the extent these are tort claims, Mr. Wright must seek relief from the individual agencies by following the procedures for FTCA claims.
CONCLUSION
The tort claims are dismissed without prejudice for failure to exhaust administrative remedies and may be raised in a subsequent complaint if Mr. Wright exhausts administrative remedies. Mr. Wright asks that the "Amended Complaint and its service provided by the U.S. Marshals ("USMS") be considered a claim submitted to each agency as part of the FTCA process." Opp'n at 4. Because the court lacks jurisdiction over Mr. Wright's claims, it cannot grant this request.
To the extent that Mr. Wright has a Freedom of Information Act ("FOIA") claim (raised for the first time in his opposition), he must exhaust administrative remedies too.
The contract claim is dismissed without prejudice with leave to amend if Mr. Wright can cure the deficiencies identified above.
Mr. Wright must file any amended complaint within 28 days.
The court thus GRANTS Mr. Wright's motion to amend, GRANTS the government's motion to dismiss, and DENIES Mr. Wright's motion for permission to file electronically. Mr. Wright may file an amended complaint within 28 days of the date of this order.
This disposes of ECF Nos. 18, 24, and 25.
IT IS SO ORDERED. Dated: April 7, 2014
/s/_________
LAUREL BEELER
United States Magistrate Judge