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Alexander v. United States

United States District Court, Ninth Circuit

April 26, 2013

ANN MARIE ALEXANDER, Plaintiff,
v.
THE UNITED STATES, Defendant.

ORDER DISMISSING PLAINTIFF'S COMPLAINT IN PART PURSUANT TO THE COURT'S DUTY UNDER 28 U.S.C. § 1915(e)(2)

JACQUELINE SCOTT CORLEY, Magistrate Judge.

Plaintiff Ann Marie Alexander, proceeding pro se, brings this action against the United States alleging a variety of wrongdoings by the Federal Bureau of Investigation ("FBI") and many other parties over the last 55 years. (See Dkt. No. 1.) Now before the Court is Plaintiff's First Amended Complaint ("FAC"), (Dkt. No. 9), which this Court is required to review pursuant to 28 U.S.C. § 1915(e)(2).

Under that section, the Court has a continuing duty to dismiss any case in which a party is proceeding in forma pauperis if the Court determines that the action is (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).[1]

ALLEGATIONS OF THE FIRST AMENDED COMPLAINT

In the FAC's nearly 200 pages, Plaintiff makes numerous allegations of wrongdoing. Most notably she contends that a tracking device was planted in her throat at her birth in 1957, that rather than miscarrying when she was 19, as she was told by hospital employees, she in fact gave birth to twins who were immediately kidnapped, and that she has been the subject of a life-long, multi-state conspiracy involving harassment, violence, and multiple murders. (Dkt. No. 9.)

Plaintiff attempts to collect her various causes of action in the FAC's "Conclusion." (Dkt. No. 9-3 at 20.) Her first numbered paragraph under this section appears to continue her pursuit of a claim under the Racketeer Influence and Corrupt Organizations ("RICO") Act. Presumably referencing this Court's previous Order Granting Application to Proceed in forma pauperis and dismissing Plaintiff's Complaint in Part ("Prior Order") (Dkt. No. 8), Plaintiff states "I was asked to rewrite this claim showing ongoing criminal behavior, Rico Act." (Dkt. No. 9-3 at 21.) Later in her Conclusion, Plaintiff again addresses her RICO claim: "Besides the kidnapping of my 2 children in which I claim across the United States, all FBI agents, in all 50 states had knowledge that someone else was raising my children, my STOLEN children, there are numerous examples of the FBI in co-conspiracy with other levels of government jurisdictional law enforcement office's engaged in criminal activity." (Id. at 31.)

Plaintiff's second numbered paragraph is titled "Freedom of Information Act." (Id.) The Court already addressed Plaintiff's FOIA claim in its Prior Order, concluding that Plaintiff may continue to pursue this cause of action. (Dkt. No. 8.) Plaintiff makes only two additions to her FOIA claim in the FAC. First, she "[a]sks for the Freedom of Information Act file, on everyone that is listed in lengthy legal writings that you will find throughout my Exhibit pages." (Dkt. No. 9-3 at 24.) Second, Plaintiff includes what appears to be a recent fax, sent on March 31, 2013, making another FOIA request.

Plaintiff's FAC also appears to bring claims for violation of her constitutional rights. Specifically, she asserts violations of the Fourth, Thirteenth, Fourteenth, and Fifteenth Amendments. (Dkt. No. 9 at 1.) She asserts that the tracking device inserted in her throat at birth constituted a warrantless search in violation of the Fourth Amendment or, in the alternative, that if there was a warrant it was unsupported by probable cause. (Dkt. No. 9-3 at 77.) Plaintiff also contends that "[t]his tracking device could be misconstrued as involuntary servitude or perhaps, I am a slave" and that, therefore, her Thirteenth Amendment rights have been infringed. (Id. at 28.) Citing the Fourteenth Amendment, Plaintiff alleges that "[a]ll the states across America in co-conspiracy with the FBI took away my freedom, of my LIFE, liberty and PROPERTY! without due process of law." (Id. at 29.) Plaintiff also claims a cause of action under the Fifteenth Amendment, alleging "that nefarious games played by people with law enforcement badges in co-conspiracy with the FBI took away my freedom to vote by created happenstances." (Id. at 30.)

Finally, Plaintiff makes two additional requests of the Court. First, in connection with her RICO Act claim, Plaintiff seems to tentatively request appointment of counsel. Initially, she suggests that "[i]f the Honorable Court does not think I am capable of speaking for myself, then, I ask that you appoint an attorney advisor to me." (Id. at 21.) In the next sentence, however, Plaintiff says "I want to remain pro se' because... I will never allow anyone to speak for me again." ( Id. ) Second, in her final sentences, Plaintiff states that she has approximately 2000 pages of "letters, medical records, subpoena's [sic], Faxs [sic] to the President, FBI, CIA, Homeland Security, Division Counsel, Senators and others... [a]nd other valuable evidence, " but that she "can not afford to make three copies, 2 for the Court and one for the FBI." (Id. at 40.) She describes these collected documents as "Exhibit B, " and references them at various points in her FAC. She concludes by asking that "the Honorable Court explain or provide a copy machine for me." ( Id. )

DISCUSSION

A complaint fails to state a claim upon which relief may be granted if the plaintiff fails to allege the "grounds" of his "entitlement to relief." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation omitted). Essentially, a plaintiff must plead "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).

Upon dismissal, pro se plaintiffs proceeding in forma pauperis must be given leave to "amend their complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Franklin v. Murphy, 745 F.2d 1221, 1235 n.9 (9th Cir. 1984) (internal citations and quotation marks omitted).

A. FOIA

FOIA provides that an agency "shall" rule on any request for documents within twenty days. 5 U.S.C. § 552(a)(6)(A)(i). When an agency fails to respond to a request within twenty days, a requester "shall be deemed to have exhausted his administrative remedies with respect to such request, " 5 U.S.C. § 552(a)(6)(C), and may therefore immediately seek judicial review in federal district court. See, e.g., Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1310 (D.C. Cir. 2003) ("A requester is considered to have constructively exhausted administrative remedies and may seek judicial review immediately if... the agency fails to answer the request within twenty ...


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