Opinion
CV 23-00202 PHX CDB
03-13-2023
Tyrone C. Glasco, Sr., Plaintiff, v. Joseph R. Biden, Barack Obama, Kamala Harris, Stuart Delery, Defendants.
HONORABLE STEPHEN M. McNAMEE, J.
REPORT AND RECOMMENDATION
Camille D. Bibles United States Magistrate Judge
Plaintiff, who is pro se in this matter, docketed the Complaint (ECF No. 1) and a motion to proceed in this matter in forma pauperis (ECF No. 2) on January 31, 2023. Defendants have not been served nor appeared.
Plaintiff's motion for leave to proceed in forma pauperis avers Plaintiff is unemployed, lives on $230 per month in public assistance, and has no assets. (ECF No. 2). In the Complaint Plaintiff named as Defendants Joseph Biden, Barack Obama, Kamala Harris, and Stuart Delery (currently White House Counsel). (ECF No. 1 at 2). Plaintiff, a resident of Arizona, and presumably as the principal of a corporation (“T&K”), asserted the Court has jurisdiction over his claims pursuant to the diversity of the parties and because his claims present a question of federal law (asserting Defendants violated his 14th Amendment rights). (ECF No. 1 at 4).
Because Plaintiff seeks leave to proceed without prepayment of costs or fees, the Court screened the Complaint pursuant to 28 U.S.C. § 1915(e)(2) and, on February 21, 2023, issued a Report and Recommendation recommending the Complaint be dismissed without prejudice and Plaintiff be given leave to file a propsed amended complaint. The Report and Recommendation noted, inter alia, the following deficiencies in the Complaint:
There are insufficient factual allegations in the Complaint that identify a basis for Plaintiff's claim for monetary damages. It is the duty of Plaintiff to articulate his claim and the legal theory under which his claim is brought, and neither the Court nor the Defendants are required to try to decipher what claim(s) Plaintiff is asserting. Because one of the primary functions of a complaint is to provide the defendants with notice of the legal claims asserted against them and the factual basis for those claims, a complaint written without clarity and specificity as to who is being sued and for what, “fails to perform the essential functions of a complaint.” McHenry v. Renne, 84 F.3d 1172, 1178-80 (9th Cir. 1996).(ECF No. 10).
Plaintiff docketed an Amended Complaint (ECF No. 11) on March 3, 2023. Plaintiff names as Defendants President Joseph Biden and former President Barack Obama. (ECF No. 11 at 2). Plaintiff alleges the Court has diversity jurisdiction over this suit, and also asserts federal question jurisdiction, alleging Defendants violated his First and Fourteenth Amendment rights. (ECF No. 11 at 3). Plaintiff does not specify the amount in controversy, but asserts Defendants “kept me from investing into a tech firm.” (ECF No. 11 at 4). As a statement of his claim, Plaintiff alleges he
... was place[d] into a diversion/case study for cause and effectiveness research where by using certain data and data collecting for individual who experienced recidivism to reclaim a social and [financial] freedom in new community. But due to ineffective measures place[d] on me by arbitrator my health and well being became a unfocal point, because of certain practices of the research. Were the parameter become misgrevious [sic] and unethical.(Id.).
With regard to the relief sought, Plaintiff states: “Lv systolic function with grade 1 dysfunction,” “Left ventricular ejection fraction is 65%,” “pre-diabetic,” and “carbuncle.” (Id.).
The courts have consistently held that with regard to a civil rights complaint against public officials, specific facts must be asserted before relief becomes justifiable. Conclusions, including allegations couched in phrases like “deprivation of constitutional rights,” will not constitute a proper basis for a civil rights action. All that Plaintiff has stated in his Amended Complaint is that two constitutional rights have been abridged. Plaintiff does not state when his rights were infringed, or by whom, or where. The basic essentials of acceptable pleading are absent. Plaintiff has failed to supply even the barest narrative of the circumstances surrounding any action by any specific Defendant to infringe his First or Fourteenth Amendment rights, and Plaintiff does not specify a statelaw based cause of action on which he could proceed based on the Court's diversity jurisdiction.
An individual may, in some circumstances, assert a federal official or officer violated their federal constitutional rights, pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). However, Plaintiff has simply made vague and conclusory allegations regarding some type of study allegedly resulting in his inability to make some type of investment, which purportedly resulted in some type of harm with regard to his health, without any factual specificity as to what the actual named Defendants did or failed to do or connecting the alleged harm to his alleged damages. This is insufficient to allow a plaintiff to proceed on a complaint in forma pauperis. See Marcilis v. Township of Redford, 693 F.3d 589, 596 (6th Cir. 2012) (upholding dismissal of Bivens complaint that failed to “allege, with particularity, facts that demonstrate what each defendant did to violate the asserted constitutional right” (internal quotations omitted)); Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (upholding dismissal when the plaintiff did not make a distinction as to what acts were attributable to each named defendant). Furthermore, executive power is vested in the President of the United States by Article II of the United States Constitution, and judicial interference in the exercise of that power is extremely limited, if not constitutionally prohibited, in order to preserve the separation of powers within the Federal government. See, e.g., Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1865). The President of the United States is absolutely immune from suits for damages for conduct that is part of his official duties. See Forrester v. White, 484 U.S. 219, 225 (1988); Nixon v. Fitzgerald, 457 U.S. 731, 756-58 (1982); Toole v. Obama, 542 Fed.Appx. 1, 1 (D.C. Cir. 2013). It is undisputed that any policies implemented by the Obama and/or Biden administrations constitutes conduct that was part of these Presidents' official duties. Consequently, Plaintiff may not sue either President Biden or former President Obama in their individual capacity based on the facts he alleges. Rand v. United States, 2022 WL 3345799, at *2 (D. Ariz. Aug. 12, 2022), citing Masjedi v. United States, 2021 WL 1269108, at *5 (C.D. Cal. Apr. 6, 2021).
28 U.S.C. § 1983 provides a cause of action for the violation of an individual's federal constitutional rights by a person acting under the color of state, rather than federal, law. See Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005); Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).
Accordingly, upon screening pursuant to 28 U.S.C. §1915(e)(2), IT IS RECOMMENDED that the Amended Complaint (ECF No. 11) be dismissed without prejudice, and the motion at ECF No. 2 be denied as moot, and this matter be closed as it appears Plaintiff is unable to state a claim over which the Court has jurisdiction against a defendant amenable to suit.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).