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Frost v. United States Department of Justice

United States District Court, N.D. California

May 15, 2017

VINTON P. FROST, Plaintiff,
v.
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

          JOSEPH C. SPERO Chief Magistrate Judge.

         I. INTRODUCTION

         This 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 counsel.[1]

         II. BACKGROUND

         Plaintiff 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). Id.

         On 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.

         First, 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.

         Second, 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.

         Third, 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.

         In the 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).

         III. ANALYSIS

         A. Legal Standard under 28 U.S.C. § 1915

         Under 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).

         B. Legal Standard ...


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