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PINNAVAIA v. FEDERAL BUREAU OF INVESTIGATION

United States District Court, S.D. California


August 26, 2005.

MATTHEW D. PINNAVAIA, Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, Defendant.

The opinion of the court was delivered by: ROGER BENITEZ, District Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [dkt. no. 24]

Now before the Court is Defendant's Motion to Dismiss. No oral argument is necessary. Having considered the motion papers and the file, the Court Grants the Motion to Dismiss, without prejudice.

Plaintiff originally brought this case in August 2002 against the Federal Bureau of Investigation ("FBI") alleging violations of the United States Constitution and the Privacy Protection Act, 42 U.S.C. § 2000aa et seq. Plaintiff filed the action in the United States District Court for the District of Columbia. That court ordered the action transferred to the Southern District of California. Th transfer order was affirmed by the United States Court of Appeals for the District of Columbia Circuit. Upon transfer of the case to this Court, the matter was stayed. The stay was lifted on February 1, 2005. Defendant filed the instant motion to dismiss while Plaintiff appealed the lifting of the stay order. The appeal was dismissed by the United States Court of Appeals for the Ninth Circuit. Plaintiff has now filed his opposition to the motion to dismiss, and the motion is ready for decision.

  According to the Complaint, the FBI executed a search warrant at Plaintiff's apartment in Oceanside, California, in August 2001. At that time, Plaintiff was engaged in a research project concerning the Third Reich-Nazi Germany (1933-1945), World War II (1939-1945), and the Holocaust. The majority of the Complaint describes events surrounding World War II. However, in addition to the historical review, Plaintiff alleges that during the execution of the search warrant an FBI agent spoke to Plaintiff about documents from his research project including two letters written to the Chairmen of the U.S. House of Representatives Armed Services Committee and U.S. Senate Armed Services Committee. According to Plaintiff, the FBI agent told Plaintiff to stop writing letters to Congressmen and the Department of Justice about World War II. Plaintiff now seeks $100 million dollars in actual and punitive damages against the FBI for violation of the Privacy Protection Act and the First, Fourth, and Fifth Amendments to the United States Constitution.

  Defendant FBI moves to dismiss the Complaint pursuant to FRCP Rule 12(b)(6). Dismissal is appropriate because it is beyond doubt that Plaintiff can prove no set of facts to support his claims. Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004).

  First, Plaintiff's damages claims under the First, Fourth, and Fifth Amendments to the United States Constitution must fail because the FBI is an agency of the United States of America and is immune from suit. Cato v. United States, 70 F.3d 1103, 1110-11 (9th Cir. 1995). The Federal Tort Claims Act (28 U.S.C. § 2679(a)) would provide Plaintiff a remedy, but the two-year statute of limitations has passed. Second, Plaintiff's Privacy Protection Act claim fails because the Act does not prohibit the search or seizure of papers from one potentially involved in the commission of a crime. United States v. Mittelman, 999 F.2d 440, 443 (9th Cir. 1993); 42 U.S.C. § 2000aa-11(a). Plaintiff acknowledged that the FBI search was conducted pursuant to a criminal search warrant issued by a federal magistrate judge. A copy of the search warrant and the 17-page affidavit supporting the search warrant are included in the papers transferred from the U.S. District Court for the District of Columbia and indicate that Plaintiff was potentially involved in fraud and extortion. As such, Plaintiff's claim falls outside the provisions providing for civil suits under the Privacy Protection Act and Plaintiff has failed to state a claim upon which relief can be granted. Therefore, the Motion to Dismiss is hereby granted without prejudice. The case is dismissed in its entirety.

  IT IS SO ORDERED.

20050826

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