Free Order Dismissing Case - District Court of California - California

Case 3:08-cv-00476-H-LSP

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Filed 08/21/2008

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA DANIEL DAVID ZUCK, vs. FEDERAL BUREAU OF INVESTIGATION, Plaintiff, CASE NO. 08-CV-0476-H (LSP) ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

Defendant. On March 14, 2008, pro se plaintiff Daniel David Zuck ("Plaintiff") filed a complaint against the Federal Bureau of Investigation ("FBI"), along with the required filing fee. (Doc. No. 1.) On August 11, 2008, the Court ordered Plaintiff to show cause why it should not dismiss his complaint for failure to state a claim. (Doc. No. 9.) Plaintiff filed his response on August 18, 2008. (Doc. No. 11.) For the reasons set forth below, the Court dismisses the complaint with leave to amend. Discussion A trial court may act on its own initiative to dismiss a complaint under Rule 12(b)(6), but it must give notice of its intent to do so and provide the plaintiff an opportunity to respond. Wong v. Bell, 642 F.2d 359, 361-62 (1981). Rule 12(b)(6) permits dismissal of a claim either where the claim lacks a cognizable legal theory, or where plaintiff has not alleged facts sufficient to support the claim. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). A complaint must contain
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08cv476

Case 3:08-cv-00476-H-LSP

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Filed 08/21/2008

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factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1965 (2007). If a complaint does not state a claim, courts typically grant leave to amend unless the pleading could not possibly be cured by the allegation of other facts. See Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995). The Court's order of August 11, 2008 notified Plaintiff that the complaint did not appear to "raise a right to relief above the speculative level." Twombly, 127 S.Ct. at 1965. The Court has reviewed Plaintiff's exhibits, (See Doc. Nos. 11-13), and concludes that they do not raise a right to relief above the speculative level. Id. For example, Plaintiff believes in the existence of tiny, unobservable surveillance devices, though he admits that he has been unable to detect them directly. This belief, which is representative of Plaintiff's voluminous submissions, does not rise above his mere speculation that the FBI is secretly investigating him. The Court will provide Plaintiff an opportunity to amend his pleadings. Conclusion The Court dismisses the complaint with leave to amend. Plaintiff may submit an amended complaint consistent with this order within 45 days of the date this order is filed. The Court encourages Plaintiff to avoid speculation or conjecture and to refer to federal pleading requirements, including Federal Rule of Civil Procedure 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." IT IS SO ORDERED. DATED: August 21, 2008 MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT

COPIES TO: All parties of record.

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