Biesenbach v. Does

• Decision Date: 24 January 2022
• Docket Number: 21-cv-08091-DMR
• Parties: KLAUS BIESENBACH, Plaintiff, v. JOHN DOES 1-3, Defendant.
• Court: U.S. District Court — Northern District of California

KLAUS BIESENBACH, Plaintiff,
v.
JOHN DOES 1-3, Defendant.

No. 21-cv-08091-DMR

United States District Court, N.D. California

January 24, 2022

ORDER GRANTING IFP APPLICATION AND SCREENING COMPLAINT PURSUANT TO 28 U.S.C. § 1915(E) Re: Dkt. Nos. 1, 2, 5

Donna M. Ryu United States Magistrate Judge

Plaintiff Klaus Biesenbach filed a complaint (“Compl.”) and an application for leave to proceed in forma pauperis (“IFP”). [Docket Nos. 1, 2.] He also filed an ex parte application for expedited discovery. [Docket No. 5.] Having considered Biesenbach's papers, the court grants the IFP application but finds that the complaint fails to state a claim on which relief may be granted pursuant to 28 U.S.C. § 1915(e). In light of this ruling, the court further denies Biesenbach's application for expedited discovery without prejudice. Plaintiff may file a first amended complaint that addresses the deficiencies identified in this screening order within twenty-one days-i.e., by February 14, 2022.^[1]

I. BACKGROUND

Biesenbach, a resident of San Francisco, claims that he was the victim of multiple cyber hacking incidents by three anonymous Doe Defendants (“Defendants”). He avers that “each

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Defendant has been seen with a person who Plaintiff has had an incident with before and has his phone number.” Compl. ¶ 5. Biesenbach determined that Defendants are located in this judicial district through geolocation of their Internet Protocol (IP) addresses, Media Access Control (MAC) addresses, and Android device identification number, as well as “having been approached” by them. Id. Biesenbach says that because of their “persistent observed activity, ” they are not “transitory or occasional” residents of this district. Id.

On April 18, 2021 Biesenbach subscribed to G-Suite Business Plus, a collection of cloud computing products developed by Google, and registered a domain name “Targetedindividualsresource.org.” Id. ¶ 7. G-Suite allows for Mobile Device Management, a security software that allows IT departments to implement policies that secure, monitor, and manage end-user mobile devices. Id. Biesenbach says that this software helps secure networks while allowing users to use their own devices; through it, administrators can monitor if third-party mobile devices have accessed the software user's data. Id.

Biesenbach alleges that on April 21, 2021, Defendants monitored his cellphone communications and multiple encrypted WiFi networks without authorization. Compl. ¶ 8. Defendants then used multiple log-in credentials to access Biesenbach's G-Suite account using a particular Android device; Biesenbach recorded the unique identification number for the device. Id. Between April 21 and September 1, 2021, Defendants accessed Biesenbach's account and bypassed Google's security authentication process. Id. ¶ 10. He claims that they used a program to alter their Android device's unique identifiers. Id.

Around May 23, 2021, Biesenbach generated an “IT admin report”^[2] showing “two devices using one email address”-presumably those that he alleges accessed his account without authorization. Id. ¶ 11. Biesenbach immediately notified “California Elections” of a breach to his voter file and Google's G-Suite Support team. Id. The Google team “did not provide [him] assistance with identifying the Google Android user” and instead directed him to their legal department; Biesenbach does not say if he received any response regarding his voter file

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complaint. Id.

Biesenbach claims other incidents of unauthorized access to his G-suite account. Around July 20, 2021, Biesenbach tried to register for Google's Voice-over-Internet-Protocol (“VOIP”) telephone service, but Defendants allegedly prevented his access by “changing the passwords and denying [him] the ability to audit and view stored information sent by phone, texts, [and] emails.” Compl. ¶ 12. Around August 7, 2021, Biesenbach received a call from a phone number that his audit logs later were “changed to anonymous, ” which he asserts was an “alteration of a record stored . . . offsite.” Id. ¶ 13. On August 8, 2021, Biesenbach claims that Defendants told him they were members of the Carrillo Cartel from Guadalajara, Mexico-although he does not explain how they communicated with him. Id. ¶ 14. Defendants “threatened [him] and demanded [him] to turn over his computer.” Id. Biesenbach said he recognized that one of the individuals who contacted him was someone he met three years ago named “Manny.” Id. On August 9, 2021, Defendants allegedly accessed Biesenbach's WiFi and changed his password, which prevented him from accessing his router on multiple occasions. Id. ¶ 15.

Biesenbach alleges five claims under various federal statutes prohibiting cyberstalking, wiretapping, and computer fraud. He seeks $2.8 million in damages and a “judgement that the claims . . . were done with the intent to cause irreparable harm.” Compl. ¶ 21.

II. LEGAL STANDARD

A court may allow a plaintiff to prosecute an action in federal court without prepayment of fees or security if the plaintiff submits an affidavit showing that he or she is unable to pay such fees or provide such security. See 28 U.S.C. § 1915(a). A court is under a continuing duty, however, to dismiss a case filed without the payment of the filing fee whenever it determines that the action “(i) 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.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). If the court dismisses a case pursuant to 28 U.S.C. § 1915(e)(2)(B), the plaintiff may still file the same complaint by paying the filing fee. This is because the court's section 1915(e)(2)(B) dismissal is not on the merits, but rather an exercise of the court's discretion under the IFP statute. Denton v. Hernandez, 504 U.S. 25, 32 (1992).

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To make the determination under 28 U.S.C. § 1915(e)(2)(B), courts assess whether there is an arguable factual and legal basis for the asserted wrong, “however inartfully pleaded.” Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Courts have the authority to dismiss complaints founded on “wholly fanciful” factual allegations for lack of subject matter jurisdiction. Id. at 1228. A court can also dismiss a complaint where it is based solely on conclusory statements, naked assertions without any factual basis, or allegations that are not plausible on their face. Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); see also Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). Dismissal is proper where “no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). A claim has facial plausibility when a plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 677-78.

Although pro se pleadings are liberally construed and held to a less stringent standard than those drafted by lawyers, see Erickson, 551 U.S. at 94, a complaint, or portion thereof, should be dismissed for failure to state a claim if it fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554 (2007); see also Fed. R. Civ. P. 12(b)(6). “[A] district court should not dismiss a pro se complaint without leave to amend unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).

III. 28 U.S.C. § 1915(E) SCREENING

Having evaluated Biesenbach's financial affidavit, the court finds that he has satisfied the economic eligibility requirement of 28 U.S.C. § 1915(a) and grants the application to proceed IFP. The court's grant of Biesenbach's application to proceed IFP, however, does not mean that he may continue to prosecute the complaint.

Biesenbach's complaint is unclear and hard to follow. It contains citations to various laws. See Compl. ¶¶ 16-21. Liberally construed, the complaint appears to allege violations of laws prohibiting interstate stalking and domestic violence, 18 U.S.C. § 2261A; the Wiretap Act, 18 U.S.C. §§ 2511, 2520; the Secured Communications Act, 18 U.S.C. § 2701(a)(1), and the

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Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(5). None of Biesenbach's allegations, however, state a cognizable legal claim.

A. Cyberstalking

First, Biesenbach alleges a violation of 22 U.S.C. § 2266(2). See Compl. ¶ 16. That provision simply sets forth the definition of “Course of conduct” as used in the relevant code chapter as “a pattern of conduct composed of 2 or more acts, evidencing a continuity of purpose.” As the definitions section alone does not create a legal violation, the court liberally construes Biesenbach's claim as arising under the relevant statute, 22 U.S.C. § 2261A. That law creates a federal criminal offense for cyberstalking, including “harassing and intimidating conduct.” See United States v. Osinger, 753 F.3d 939, 944 (9th Cir. 2014). “Case law is . . . unanimous that no private right of action is available under § 2261A.” Cain v. Christine Valmy Int'l Sch., 216 F.Supp.3d 328, 335 (S.D.N.Y. 2016) (citing cases); accord Kruska v. Perverted Justice Foundation, Inc., No. 08-cv-0054, 2009 WL 321146, at *4 (D. Ariz. Feb. 6, 2009) (“The act creates no private right of recovery.”). Rather, the law is a “bare criminal statute[.]” Cain, 216 F.Supp.3d at 335. Because 22 U.S.C. § 2261A does not create a civil offense, this allegation does not state a claim for relief.

B. Wiretap Act

Second, Biesenbach alleges claims under the Wiretap Act, 18 U.S.C. §§ 2511(1)(d), 2520(a). Compl. ¶ 17, 20.^[3] “The Wiretap Act prohibits the unauthorized ‘interception' of an ‘electronic...