Da Silva Jackson v. Nelson

• Decision Date: 12 July 2022
• Docket Number: 2:22-cv-00053-JHC
• Parties: VASTI MARIA DA SILVA JACKSON, Plaintiff, v. STEVE KEITH NELSON, Defendant.
• Court: U.S. District Court — Western District of Washington

VASTI MARIA DA SILVA JACKSON, Plaintiff,
v.
STEVE KEITH NELSON, Defendant.

No. 2:22-cv-00053-JHC

United States District Court, W.D. Washington, Seattle

July 12, 2022

ORDER

John H. Chun, United States District Judge

I.

INTRODUCTION

This matter comes before the Court sua sponte. The Court has examined Plaintiff's amended complaint and for the reasons below, under 28 U.S.C. § 1915(e)(2)(B)(i), 28 U.S.C. § 1915(e)(2)(B)(ii), and Federal Rule of Civil Procedure 12(h)(3), (1) DISMISSES Plaintiff's 42 U.S.C. § 1983 claim and criminal claims with prejudice; (2) DISMISSES Plaintiff's 15 U.S.C. § 6851(b) claim without prejudice and without leave to amend; and (3) DISMISSES Plaintiff's Intentional Infliction of Emotional Distress (IIED) claim without prejudice and with leave to amend.

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II.

BACKGROUND

Magistrate Judge Michelle L. Peterson granted pro se Plaintiff Vasti Maria Da Silva Jackson in forma pauperis (“IFP”) status. Dkt. # 5.

The original complaint alleges that, since August 2003, Defendant Steve Keith Nelson violated Plaintiff's Fourteenth Amendment rights to life and liberty. Dkt. # 6 at 1-2, 16-17. It alleges that Defendant and his associates with the FBI accused, investigated, and interrogated her for various crimes; drugged, raped, and trafficked her for sex; forced her to commit robberies; and posed as employers, stalked her at her places of employment, and prevented her from gaining and maintaining employment. Id. at 2-14. It asks the Court to “grant [Plaintiff] justice in the form of punitive damages that shall be paid by [Defendant] on the amount of . . . 19 MILLION DOLLARS.” Id. at 17. The complaint also alleges that Defendant caused Plaintiff's daughter to suffer harm and asks the Court to require Defendant to pay $16 million in damages to her daughter. Id.

The Court dismissed Plaintiff's complaint without prejudice under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim. Id. This Court gave her leave to amend the complaint within 14 days. Id. at 3 (“[If Plaintiff] fails to file an amended complaint that remedies the deficiencies, the court will dismiss her complaint without leave to amend.”).

Plaintiff filed an amended complaint asserting various causes of action. Dkt. # 25 at 1-3. Plaintiff asserts a 42 U.S.C. § 1983 claim, alleging Defendant violated her Fifth, Eighth, Thirteenth, and Fourteenth Amendments rights. Id. at 1. Plaintiff also asserts a 15 U.S.C. § 6851(b) claim for non-consensual depiction of intimate images. Id. at 1-2. Plaintiff also asserts various claims based on federal criminal statutes. Id. at 2. Finally, Plaintiff asserts a tort claim for IIED. Id.

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III.

ANALYSIS

This Court must dismiss an action if at any time it determines it lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3). Plaintiff has the burden of establishing subject matter jurisdiction at the pleading stage. See id.; Rucker v. Kaiser Permanente of Wash., No. 22-cv-00634-JLR, 2022 WL 1499622, at *2 (W.D. Wash. May 12, 2022) (dismissing under Rule 12(h)(3) at the pleading stage for failure to establish subject matter jurisdiction and reiterating the principle that the plaintiff must show “the existence of whatever is essential to federal jurisdiction” (quoting Smith v. McCullough, 270 U.S. 456, 459 (1926))); Johnson v. Biden, No. 21-cv-00466-MJP, 2021 WL 1894012, at *1 (W.D. Wash. May 11, 2021) (same); Garcia v. Experian, No. 18-cv-00005-RSM, 2018 WL 905743, at *1-2 (W.D. Wash. Feb. 15, 2018) (same). Federal question jurisdiction allows federal courts to hear claims that arise under federal law. See 28 U.S.C. § 1331. Diversity jurisdiction allows federal courts to hear claims when the parties are citizens of different states and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332. Alternatively, if a plaintiff pleads a separate valid federal claim, this Court can hear supplemental state claims under supplemental jurisdiction. See 28 U.S.C. § 1367(a).

Courts must dismiss an IFP complaint if it fails to state a claim. 28 U.S.C. § 1915(e)(2)(B)(ii) (“[T]he court shall dismiss the case at any time if the court determines that the action . . . fails to state a claim on which relief may be granted.”). Rule 8 requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Courts construe a pro se plaintiff's pleadings liberally. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). But a plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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While the law does not require “detailed factual allegations,” it demands more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp., 550 U.S. at 555). A claim must be “plausible on its face.” Bell Atl. Corp., 550 U.S. at 570 (“Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.”). Courts need not accept as true a legal conclusion presented as a factual allegation. Ashcroft, 556 U.S. at 678.

Courts must dismiss an IFP complaint if it is frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i) (“[T]he court shall dismiss the case at any time if the court determines that the action . . . is frivolous.”). An action is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim is legally frivolous if it fails to establish subject matter jurisdiction. See Castillo v. Marshall, 107 F.3d 15, 15 (9th Cir. 1997) (quoting Pratt v. Sumner, 807 F.2d 817, 819 (9th Cir. 1987)) (“the claim is ‘frivolous within the meaning of [Section] 1915(d)^[1] in that the court lacks subject matter jurisdiction.' ”); see, e.g., Emiabata v. Bank of N.Y. Mellon Tr. Co. NA/JP Morgan Chase (SLS), No. 17-cv-01302-JLR, 2017 WL 4838840, at *1 (W.D. Wash. Oct. 3, 2017) (dismissing an IFP claim for frivolousness when it failed to establish subject matter jurisdiction); Brown v. Brennan, No. 19-cv-01331-JLR, 2019 WL 4395257, at *2 (W.D. Wash. Aug. 29, 2019), report and recommendation adopted, No. 19-cv-01331-JLR, 2019 WL 4392518 (W.D. Wash. Sept. 13, 2019) (same).

When a court dismisses a pro se plaintiff's complaint, it must give the plaintiff leave to amend “[u]nless it is absolutely clear that no amendment can cure the defect” in the complaint. Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Lopez v. Smith, 203 F.3d 1122, 1126-31 (9th Cir. 2000)

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(reversing a district court's dismissal of a pro se IFP claim without leave to amend when the deficiency in the complaint was curable).

The previous order provides, “The court grants Plaintiff fourteen (14) days to file an amended complaint that corrects the deficiencies identified herein. If Plaintiff fails . . . to file an amended complaint that remedies the deficiencies, the court will dismiss her complaint without leave to amend.” Dkt. # 25 at 3.

A. 42 U.S.C. § 1983

To bring a 42 U.S.C. § 1983 claim, Plaintiff must allege that Defendant acted under color of state law. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Plaintiff alleges that Defendant acted with associates in the FBI to commit various constitutional violations. Dkt. # 25 at 1. Even if this allegation passes the Bell Atl. Corp. plausibility test, the FBI is a federal agency and does not act under color of state law. Plaintiff could have brought these allegations as claims under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (conferring a private cause of action when a federal official violates a constitutional right in their individual capacity). This Court informed Plaintiff of the Bivens doctrine in the prior order dismissing her complaint. Dkt. # 24. Yet Plaintiff did not bring any Bivens claims in her amended complaint. Dkt. # 25. Because Plaintiff has not remedied the deficiencies in her original...