United States District Court, Northern District of California
May 15, 2003
SEYMOUR GLASSER, PLAINTIFF,
CENTRAL INTELLIGENCE AGENCY, DEFENDANT
The opinion of the court was delivered by: Edward M. Chen, United States Magistrate Judge
ORDER DISMISSING THE AMENDED COMPLAINT WITH PREJUDICE
Plaintiff Seymour Glasser (hereinafter "Plaintiff") files this amended complaint ("Amended Complaint"), after the Court had dismissed his previous complaint ("Original Complaint") as frivolous. Order of March 3, 2003. In this Court's previous order of March 3, 2003, it permitted the Plaintiff leave to amend should Plaintiff be able to establish more specific facts that would make his allegations more plausible. For the reasons stated below, the Court concludes that Plaintiff has failed to establish more specific facts to cure deficiencies in his Original Complaint and dismisses Plaintiff's Amended Complaint as frivolous without leave to amend.
Plaintiff, in his Amended Complaint, seeks an injunction to compel disclosure from the United States Central Intelligence Agency ("CIA") of documents and information regarding the Plaintiff pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. The complaint is therefore now fashioned as asserting a claim under FOIA for release of information. Plaintiff asserts that the CIA has documents and information regarding the Plaintiff because the CIA allegedly eavesdropped on him for the period covering January 1951 through today in respect to activities evidently in connection with overseas travel to Sovict-bloc countries and Cuba into which he was "coopted" by the CIA.
A party seeking documents under FOIA must exhaust administrative remedies before seeking judicial review. United States v. Steele (In re Steele), 799 F.2d 461, 465-66 (9th Cir. 1986). Plaintiff states he has previously requested records maintained on him by the CIA, but the CIA has denied the existence of such records. He appends to the complaint Exhibit 1, a letter dated February 1, 1999, signed by Lee Strickland on behalf of the CIA, responding to Plaintiff's request for information "regarding [Plaintiff's] having been subject to human experimentation which the CIA has acknowledged it has been conducting from the 1950s until the present" In this letter, the CIA informed Plaintiff that he was not a "human subject" in any CIA projects. The letter also states, "Our records also reflect that our previous searches for records to your name have resulted with no records located." In his complaint, Plaintiff asserts the CIA in fact has these records.
Judges have the "unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless" and are not bound to accept without question the truth of the plaintiffs allegations. Neitzke v. Williams, 490 U.S. 319, 327 1989). Examples of clearly baseless claims include those describing fantastical or delusional scenarios. See Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). A finding of factual frivolous is appropriate when the facts allege rise to the level of the irrational or the wholly incredible. Id. at 33.
In support of his claim that such records exist, Plaintiff alleges that a short report was released to him regarding Plaintiff's visit to the CIA, where he submitted an application for employment and was denied. These allegations do not support Plaintiff's contentions that the CIA was eavesdropping on him, or that they have any information exists regarding their eavesdropping activities on the Plaintiff in connection with travel into which he was coopted by the CIA. He also contends that during his travels to "various Sovict-bloc countries and Cuba during the period of the Cold War" he was given instructions directly and "in an indirect manner" but fails to specify what instructions were given or who gave him instructions. While he submits copies of visas showing apparent travel to eastern bloc countries, nothing suggests he was doing so as a coopted spy for the CIA or that he was subject to eavesdropping.
The same is true with respect to Plaintiff's allegations that he was instructed by the CIA to join the International Committee of the Sierra Club and was directed "to visit the offices of some foreign nationals, all members of the UN."
Other exhibits attached to Plaintiff's complaint do not lend credibility to his allegations. Exhibit III is a newspaper article. Scott Shane & Areil Sabar, Memo shows U.S. eavesdropping on U.N. members, S.F. Chron., Mar. 7, 2003, at A16. This article repeats a British news article reporting on a government memo indicating that the U.S. is eavesdropping on U.N. Security Council members. Since the Plaintiff is not a U.N. member, this article does not support his allegations. Exhibit TV, a letter from Don Edwards, Chairman of the House Subcommittee on Civil and Constitutional Rights stating that the Subcommittee cannot provide the Plaintiff assistance, does not make his allegations more plausible. The last exhibit is a book excerpt from John Marks' "Without Cloak or Dagger." In this book, the author informs that the "OSO has developed ways of so stimulating travelers before their departures that, without knowing that they will later be interviewed, they will be on the lookout for items they might otherwise not notice." This excerpt does not remotely support the contention that the CIA coopted and eavesdropped on the Plaintiff.
Having considering the allegations in Plaintiff's Amended Complaint and the accompanying exhibits, as well as the Original Complaint which contained fantastical allegations of the CIA's "mind control" over the Plaintiff, the Court finds that Plaintiff's allegations are too implausible to be credible. The Court therefore finds the allegations in the Amended Complaint lack any arguable basis in fact, as the facts are far-fetched and baseless. Niezke, 490 U.S. at 327. Accordingly, Plaintiff's amended FOIA action to obtain all documents and information about the Plaintiff from the CIA is dismissed with prejudice.
The Court hereby ORDERS that Plaintiff's Amended Complaint is DISMISSED with prejudice, as the Amended Complaint is patently frivolous and Plaintiff has not properly cured the deficiencies in the Original Complaint. See Lopez v. Smith, 203 F.3d 1122, 1128 n. 8 (9th Cir. 2000) ("When a case is classified as frivolous or malicious, there is by definition, no merit to the underlying action and so no reason to grant leave to amend.").
IT IS SO ORDERED.
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