United States District Court, N.D. California
VINTON P. FROST, Plaintiff,
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.
ORDER REVIEWING CASE PURSUANT TO 28 U.S.C. §
1915 AND DENYING REQUEST FOR APPOINTMENT OF COUNSEL WITHOUT
PREJUDICE RE: DKT. NO. 6
C. SPERO Chief Magistrate Judge.
action relates to a Freedom of Information Act
("FOIA") request made by Plaintiff Vinton Frost to
the Federal Bureau of Investigation ("FBI").
Plaintiff requested leave to proceed in forma pauperis in
this action, which the Court granted on March 27, 2017.
Having previously granted Plaintiff's Application to
Proceed in Forma Pauperis, the Court now considers whether
Plaintiff's complaint should be dismissed under 28 U.S.C.
§ 1915(e)(2)(B), which requires dismissal of an in forma
pauperis complaint that is (1) frivolous or malicious, (2)
fails to state a claim upon which relief may be granted, or
(3) seeks monetary relief from a defendant who is immune from
such relief. See Marks v. Solcum, 98 F.3d 494, 495
(9th Cir. 1996). The Court also addresses Plaintiff's
request for appointment of counsel. See Dkt. No.
6. For the reasons stated below, the Court dismisses
Plaintiff's claims against the Department of Justice
("DOJ") with leave to amend, dismisses
Plaintiff's claims against Defendants Melanie Ann Pustay
and Sean O'Neill without leave to amend, and vacates the
June 9, 2017 Case Management Conference. The Court DENIES
without prejudice Plaintiff's motion for appointment of
initiated this action using a form complaint, to which he
attached a January 30, 2017 letter ("January 30, 2017
Letter") from DOJ. See dkt. 1, 6-7. In the
Complaint, Plaintiff challenged DOJ's denial of his
request for expedited processing of his administrative appeal
of the FBI's denial of a FOIA request. Complaint Section
III; see also January 30, 2017 Letter. The Complaint
does not describe the content of the underlying FOIA request,
which is not in the record before the Court. The January 30,
2017 Letter stated that Plaintiff's request for expedited
treatment had been denied because Plaintiff had not
established that he was facing "grave punishment"
and that the information requested would aid in his defense.
January 30, 2017 Letter. The letter further stated that
Plaintiff could appeal the denial of expedited treatment by
filing an action under 5 U.S.C. § 552(a)(6)(E)(iii).
March 24, 2017, DOJ decided on the merits Plaintiff's
administrative appeal of the FBI's denial of his FOIA
request, thus rendering moot Plaintiff's original claim
in this action that he was entitled to expedited treatment of
his appeal. Plaintiff then filed an amended complaint
challenging DOJ's determination on the merits.
See First Amended Complaint ("FAC") &
March 24, 2017 Letter ("the March 24, 2017 Letter")
attached thereto. The March 24, 2017 Letter describes
Plaintiff's FOIA request to the FBI as a request
"for access to records concerning [himself]." March
24, 2017 Letter. In this letter, DOJ affirmed the FBI's
denial of Plaintiff's FOIA request on three grounds.
the DOJ stated that "[t]o the extent that your request
seeks access to records that would either confirm or deny an
individual's placement on any government watch list, the
FBI properly refused to confirm or deny the existence of any
records responsive to your request because the existence of
such records is protected from disclosure pursuant to 5
U.S.C. § 552a(j)(2) & 5 U.S.C. §
552(b)(7)(E)." Id. The letter stated that this
is the "standard response" made by the FBI with
respect to requests for documents that would either confirm
or deny an individual's placement on a government watch
list because it is reasonably foreseeable that disclosure of
such information would "harm the interests protected
by" 5 U.S.C. § 552(b)(7)(E), known as
"Exemption 7(E)." Id. DOJ noted that this
response "should not be taken as an indication that
records do or do not exist." Id.
as to "any other records, " DOJ found that the
FBI's original response-that it could "locate no
main file records subject to the FOIA in its files"-was
"correct" and that the FBI had "conducted an
adequate, reasonable search for records responsive to
[Plaintiff's] request." Id.
the DOJ noted that Plaintiff sought additional records in his
appeal that he had not included in his original FOIA request
pertaining to "malpractice and financial fraud involving
a third party." Id. The letter explained that
it was not permissible to expand the scope of a FOIA request
on appeal and advised Plaintiff that he would need to file a
new FOIA request as to those records. Id.
FAC, Plaintiff states that he is "dissatisfied with the
FOIA determination [in the March 24, 2017 Letter]" and
alleges that he has "asked repeatedly for his
experiences to be subject of a federal investigation."
FAC, Section III. He further alleges, "[t]o the extent,
if any, that Plaintiff is on a government watch list due to a
third-party, Plaintiff would argue such placement would be a
result of private and not public concerns, resulting from
private parties illegally attributing actions to the
state." Id. In his FAC, Plaintiff asserts a
claim under 5 U.S.C. § 552(a)(4)(B) and names as
defendants the DOJ and two individuals who hold positions at
DOJ in their official capacities-Melanie Ann Pustay and Sean
O'Neil. He requests an injunction enjoining "the
agency from withholding agency records improperly withheld
from the complainant and to determine the matter de
novo." FAC, Section IV (internal citations omitted).
Legal Standard under 28 U.S.C. § 1915
28 U.S.C. § 1915(e)(2)(B), a federal court should
dismiss an in forma pauperis complaint that is (1) frivolous
or malicious, (2) fails to state a claim on which relief may
be granted, or (3) seeks monetary relief from a defendant who
is immune from such relief. See Marks v. Solcum, 98
F.3d 494, 495 (9th Cir. 1996). A plaintiff's burden at
the pleading stage is relatively light under Rule 8(a) of the
Federal Rules of Civil Procedure. See Fed.R. Civ. P.
8(a) (requiring, inter alia, that "[a] pleading
that states a claim for relief must contain . . . a short and
plain statement of the claim showing that the pleader is
entitled to relief"). This is particularly true of
complaints drafted by pro se plaintiffs, which are construed
liberally to give the plaintiff the benefit of any doubt.
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
(citations omitted). Nonetheless, the factual allegations of
a complaint must be definite enough to "raise a right to
relief above the speculative level on the assumption that all
of the complaint's allegations are true." Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007). In
Ashcroft v. Iqbal, the Supreme Court explained that
under Twombly, the complaint must allege facts
sufficient to "state a claim to relief that is plausible
on its face." 556 U.S. 662, 663 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. at 547).
Legal Standard ...