The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS DISMISSING COMPLAINT WITH PREJUDICE
Plaintiffs are seeking to impose liability on the defendants based upon their claim that in 1997, plaintiff Larson was implanted with microscopic medical devices without his knowledge or consent. Larson claims that the defendants purposefully activate the devices in a manner that causes him pain and interferes with his daily activities.
Under 28 USC § 1915(e)(2)(B), the Court is obligated to dismiss any case at any time if it, "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." For the reasons set forth below, the complaint is DISMISSED WITH PREJUDICE.
Plaintiff David Larson and Brandi Baker, his fiancee, bring this action. There are no legal claims, that the Court has located, raised by Ms. Baker except for that she is in a relationship with Larson and with whom she is raising her young daughter.
The body of the plaintiffs' complaint is 42 pages. Attached to the complaint are numerous exhibits, bringing the total page count to 146. The complaint is a confusing and extremely lengthy discussion of various acts attributed, in part, to the defendants but also to unnamed employees of the federal government. Due to the manner in which the complaint is plead, it is extremely unwieldy and difficult to follow.
In essence, Larson alleges that in 1997 (Doc. 1 at Ex 1.11), he was assaulted by Dr. Loeb, an employee of the Alfred Mann Foundation, and implanted with microscopic medical devices. Plaintiff contends that upwards of 100 of these devices were implanted by Dr. Loeb in his muscles and tissues to test whether they were effective for various conditions including hearing loss, regulating bowel function and sleep apnea. Id. Larson describes himself as a "guinea pig." Id.
As early as 2001, Larson claims that he discovered that the federal government had been conducting medical experimentation, using testosterone infused medical devices, to evaluate the effect of the devices on unwitting human test subjects. (Doc. 1 at 3) Coupled with the information that Larson had been implanted with these devices and the knowledge that this experimentation was occurring, Larson became convinced that the devices he believes are implanted in his body, are being activated periodically by the defendants in a way that causes him pain and interferes with his daily life. (Doc. 1 at 10-13)
Larson claims that the defendants, including, former President George H. W. Bush, CIA Director Leon Panetta and former CIA Deputy Director Stephen Kappes, Attorney General Eric Holder and former Attorney General Alberto Gonzales, the Alfred Mann Foundation, its former President, Joseph Schulman and Foundation employee Dr. Gerald Loeb, along with the County of San Bernardino Sheriff's Department and the Bureau of Prisons, have "interacted" with the medical devices by issuing "harmful electrical shocks" which made him unable to complete his job satisfactorily (leading to his firing) and interfering with his duties on an elected committee and will likely interfere with his intended 2012 campaign for the Office of the President of the United States. Id. Larson alleges that the defendants have "interacted" with the medical devices as recently as in the summer of 2010. (Doc. 1 at 9-12). Larson alleges that each of the defendants has conspired together as to the use of these micro-devices in his body. (Doc. 1 at 16) Larson alleges that by July 2001, he had complained to the FBI, the Department of Defense and the National Institutes of Health about the medical devices implanted in his body. (Doc. 1 at 3)
Larson alleges also that he has been targeted by the defendants with counter-terrorism techniques "for numerous years, [that] continue daily in 12-hour shifts, sanctioned and authorized by the federal government defendants, and continue to cause bodily and other harm to plaintiffs." (Doc. 1 at 16) Plaintiff claims that the defendants have worked together to have him arrested and imprisoned for abusing the 911 emergency system, when he attempted to report the defendants' "interaction" with the medical devices implanted in his body. (Doc. 1 at 17-19) Likewise, Plaintiffs allege that the defendants have secured the dismissal of civil actions that he has filed and interfered with his ability to obtain legal counsel. (Doc. 1 at 15, 20-21)
Based upon these allegations, Plaintiffs raise causes of actions for violations under the Fourth, Fifth, Eighth, Fourteenth Amendments, for "Common Rule Violations for Medical Research and Experimentation," for violation of the Freedom of Information Act (related to his request for the housing information for the inmate who is accused of killing congressional intern, Chandra Levy), for failure to protect him from constitutional violations under 42 USC § 1986 and for conspiracy to violate his constitutional rights.
Though packaged a little differently here, Larson has brought this lawsuit several times before, most recently in the United States District Court, Central District of California, in case number 2:09-cv-01296 PA JTL.*fn1 In this earlier case, Larson named many of the same defendants as in this current action including, the CIA and the Director of that agency, the Alfred Mann Foundation and Dr. Gerald Loeb. In dismissing this earlier matter, the Court ruled,
Plaintiff David Larson, appearing pro se, alleges that in March of 1997 defendant Gerald E. Loeb, M.D. and others restrained Plaintiff and implanted biomedical devices into Plaintiff's body. According to Plaintiff, the devices have been used repeatedly since that time by the defendants through telemetry or wireless technology to inflict pain on and shock Plaintiff. Plaintiff alleges that these actions were performed by AMF with the funding and/or approval of the Federal Defendants, although it is unclear which defendants are alleged to have performed which acts. Plaintiff brings claims for violation of the Fourth and Fifth Amendments to the United States Constitution, as well as state law causes of action for battery, negligence, and nuisance.
Plaintiff previously brought actions in California state court against AMF, Dr. Loeb, and other defendants not named in this action. Although the claims and parties in that action are not identical to those in this action, the claims all flow from the initial allegation that Plaintiff was implanted with biomedical devices by Dr. Loeb in 1997. The state court actions were dismissed with prejudice on December 23, 2002 and May 2, 2003 on the grounds that they were barred by the statutes of limitations. [Footnote] (See AMF's Request for Judicial Notice, Exh. 3, Exh. 5.) On May 19, 2003, Plaintiff was declared a vexatious litigant in California state court on May 19, 2003. (See Request for Judicial Notice, Exh. 3, Exh. 7.) AMF moves to dismiss on grounds that Plaintiff's Complaint violates state and federal law on vexatious litigation, and that the action is barred by the Rooker-Feldman doctrine. The Federal Defendants move to dismiss on grounds that the action is frivolous and fails to state a claim under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), and that it is barred for failure to prosecute under Federal Rule of Civil Procedure 41(b).
(Doc. 49 (Case #2:09-cv-01296-PA-JLT) at 1-2, footnote omitted.) Although the Court rejected the defendants' motion to dismiss in part, it determined that the lawsuit violated the statute of limitations and dismissed the matter without leave to amend. The Court held, . . . all of Plaintiff's claims are based on the allegation that he was implanted with biomedical devices in 1997. Plaintiff's previous claims also based on that allegation were dismissed with prejudice in 2002 and 2003, and judgment entered in the state courts accordingly, because the state courts found that the statute of limitations had passed. (See AMF's Request for Judicial Notice, Exh. 3, Exh. 5.) The applicable statute of limitations for constitutional violations is determined by looking to the statute of limitations for state law personal injury suits in the state in which the challenged action occurred. See Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 1947, 85 L.Ed. 2d 254 (1985); Equity Lifestyle Props., Inc. v. County of San Luis Obispo, 548 F.3d 1184, 1193 n.15 (9th Cir. 2008). In California, personal injury claims which accrued prior to January 1, 2003 were subject to a one-year statute of limitations. Equity, 548 F.3d at 1193 n.15. Claims accruing after January 1, 2003 are subject to a two-year statute of limitations. See Cal. Code Civ. P. § 335.1; Canatella v. Van De Camp, 486 F.3d 1128, 1132--33 (9th Cir. 2007). Here, the events that form the basis for Plaintiff's claims occurred in 1997. Plaintiff's Complaint was not filed until February 24, 2009. Plaintiff appears to have been aware of the alleged events in 1997 when they occurred, and was certainly aware of them no later than 2002, when he was able to file an action in state court based on the alleged events. Accordingly, the Court finds that all of Plaintiff's claims are time-barred. See Wilson, 471 U.S. at 276, 105 S.Ct. at 1947; Equity, 548 F.3d at 1193 n.15.
Furthermore, the Court agrees with the Federal Defendants that Plaintiff fails to raise a right to relief above the speculative level. See Fed. R. Civ. Proc. 8; Twombly, 550 U.S. at 555, 127 S.Ct. at 1965; see also Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1951, __ L.Ed. __ (2009) ("Under Twombly's construction of Rule 8, we conclude that respondent's complaint has not "nudged [his] claims" . . . "across the line from conceivable to plausible." (quoting Twombly, 550 U.S. at 570, 127 S.Ct. at 1974)). The Court also finds that amendment would be futile, and therefore leave to amend is denied. See Flowers v. First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002) ("A district court . . . does not abuse its discretion in denying leave to amend where amendment would be futile.").
(Doc. 49 (Case #2:09-cv-01296-PA-JLT) at 3-4) Although Larson sought appellate review, on October 20, 2009, the Court rejected the appeal and held,
A review of the record and the opening brief indicates that the questions raised in this appeal are so insubstantial as not to require further argument. See United States v. Hooton, 693 F.2d 857, 858 (9th Cir. 1982) (per curiam) (stating standard).
Accordingly, we summarily affirm the district court's judgment.
Larson v. Alfred Mann Foundation et al., No. 09-56091 (CA CD, Oct. 20. 2009).*fn2
In addition, in August 2002 Larson sued the Alfred Mann Foundation, Gerald Loeb and Joseph Schulman, among others, in Los Angeles Superior Court in case number LC061991.*fn3 In that action, Larson alleged damages related to the defendants implanting medical devices in Larson's body and using them to cause him harm. He claimed also that the defendants took unlawful actions against him, including slander, false imprisonment and intentional infliction of mental distress in order to retaliate against him for pursuing legal action against them. In his complaint filed in case number LC061991, Larson alleged,
Plaintiff (David A. Larson) contends that medical devices recovered from his body by medical personnel in May of 2002 and other occasions, were implanted by Defendant Gerald E. Loeb in 1997 for research purposes as part of Defendant Schulman, Troyk, and Loeb's NIH contract from the development of prototype Microelectronic Neural prosthesis implants. Plaintiff maintains that the devices recovered in 2002, were implanted without plaintiffs consent in 1997 following an assault in which the Defendant Gerald Loeb administered an inhalant anesthesia, and that the Defendants engaged in illegal and unethical research for personal, professional and financial gain. Plaintiff will prove that Defendants conspired to commit this crime well in advance, that the premeditation includes prior research performed by Defendant Gerald Loeb that involved biocompatibility tests in feline species and that diagnostic radiology experiments allowed the Defendants to determine methods to conceal the devices implanted in their subject so as to prevent detection of the devices should the subject seek medical attention in a hospital or clinical environment. The Defendants were able to interact with the devices remotely using telemetry and wireless applications which were developed for Telemedicine purposes, and permitted control of device parameters as well as data acquisition for research purposes on a daily, hourly, and even chronic basis. Plaintiff will present evidence that the Defendants attempted to discredit the Plaintiff by soliciting allegations regarding the assault and inflating and exaggerating them in slanderous efforts, made attempts to mislead the Plaintiff into believing that innocent colleagues and co-workers of Defendants were involved in the illegal and unethical research, made willful attempts to provoke violence or criminal response from Plaintiff, and also falsely accused Plaintiff of criminal behavior.
Additionally, Plaintiff contends that Defendants performed unethical research as an agent or representative of the National Institutes of Health, and that NIH personnel including NIH/NINDS/NPP Program Director William Heetderks had knowledge of the misconduct and contributed to the criminal misconduct, and contributed to the criminal misconduct, that the NIH failed to respond appropriately to written allegations of misconduct and requests for oversight, that NIH personnel failed to comply with Freedom of Information Act (FOIA) requirements, intentionally discouraged and misled and provided false information in regards to progress of Plaintiff's FOIA request, and then following an appeal for FOIA compliance, ...