Free Reply Memorandum - District Court of California - California

Case 3:07-cv-00546-MJJ

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Filed 07/24/2007

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SCOTT N. SCHOOLS (SCBN 9990) United States Attorney JOANN M. SWANSON (SBN 88143) Chief, Civil Division OWEN P. MARTIKAN (SBN 177104) Assistant United States Attorney 450 Golden Gate Avenue, 9th Floor San Francisco, California 94102-3495 Telephone: (415) 436-7241 Facsimile: (415) 436-6748 Email: [email protected] Attorneys for Federal Defendants

8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 ADAM JIBREEL, 12 Plaintiff, 13 v. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In response to the Court's Order to Show Cause why this case should not be dismissed for plaintiff Jibreel's failure to oppose or appear at the hearing on defendant's motion to dismiss, Jibreel filed an opposition to the motion to dismiss on June 26, 2007. The opposition, however, merely states that Jibreel intends to oppose the motion and pursue his case; it does not address the substance of the Department of State's motion. Jibreel does note that he intends to pursue monetary relief against the various federal defendants, and asks the Court to force the defendants to apologize to him. Opposition at 1-2. Jibreel's mere statement of opposition is insufficient to survive this motion to dismiss. As a jurisdictional matter, Jibreel cannot pursue monetary relief against the United States unless he first exhausts his administrative remedies under the Federal Tort Claims Act. And as a UNITED STATES DEPT. OF STATE, FEDERAL BUREAU OF INVESTIGATIONS, UNITED STATES DEPT. OF HOMELAND SECURITY, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. C 07-0543 MJJ (Related Case Nos. C07 546 & -547 MJJ) E-FILING CASE REPLY SUPPORTING DEFENDANT UNITED STATES DEPT. OF STATE'S MOTION TO DISMISS Date: Tuesday, August 7, 2007 Time: 9:30am Ctrm: 11, 19th Floor

Case 3:07-cv-00546-MJJ

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technical matter, he has not even sued the United States of America, which is the only proper defendant in such an action. Jibreel does not name any individual defendants, so he cannot pursue monetary relief under a Bivens theory. Also, Jibreel does not show what jurisdiction this Court has to force a federal agency to apologize to him. The Supreme Court recently held that to survive a motion to dismiss for failure to state a claim, a plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly,127 S. Ct.1955, 1965 (2007) (rejecting literal interpretation of statement in Conley v. Gibson, 355 U.S. 41 (1957), that complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim"). And the plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level," and must do more than create a suspicion of a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.2004)). Thus, while the material factual allegations are taken as true and construed in the light most favorable to the non-movant, allegations that are conclusory, vague or speculative are insufficient to survive a motion to dismiss. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982); Stack v. Lobo, 903 F. Supp. 1361, 1369 (N.D. Cal. 1995). Because Jibreel's allegations are of the speculative, conclusory, and vague variety, the Court should find that he cannot survive the Department of State's motion to dismiss. Respectfully submitted, SCOTT N. SCHOOLS United States Attorney

Dated: May 15, 2007 24 25 26 27 28
REPLY RE: DEF. STATE DEPT.'S MOTION TO DISMISS 2 C 07-0543 MJJ

____/s/_______________________ OWEN P. MARTIKAN Assistant United States Attorney

Case 3:07-cv-00546-MJJ

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CERTIFICATE OF SERVICE Jibreel (aka Blake) v. U. S. Dept. Of State, et al. C 07-00543 MJJ Related to C 07-00546 MJJ & C 07-00547 MJJ The undersigned hereby certifies that she is an employee of the Office of the United States

4 Attorney for the Northern District of California and is a person of such age and discretion to be 5 competent to serve papers. The undersigned further certifies that she is causing a copy of the 6 following: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 I declare under penalty of perjury under the laws of the United States that the foregoing is 22 true and correct. 23 Executed this July 24, 2007 at San Francisco, California. 24 25 26 27 28
REPLY RE: DEF. STATE DEPT.'S MOTION TO DISMISS 3 C 07-0543 MJJ

REPLY SUPPORTING DEFENDANT UNITED STATES DEPT. OF STATE'S MOTION TO DISMISS to be served this date upon the party in this action by placing a true copy thereof in a sealed envelope, and served as follows: X FIRST CLASS MAIL by placing such envelope(s) with postage thereon fully prepaid in the designated area for outgoing U.S. mail in accordance with this office's practice. CERTIFIED MAIL (# ) by placing such envelope(s) with postage thereon fully prepaid in the designated area for outgoing U.S. mail in accordance with this office's practice. PERSONAL SERVICE (BY MESSENGER) ____ ____ ____ FEDERAL EXPRESS via Priority Overnight EMAIL FACSIMILE (FAX)

to the party(ies) addressed as follows: Adam Jibreel (aka Adam Blake), Pro Se 350 Bay Street, #100-133 San Francisco, CA 94133 PH: 408.453.4907

____/s/____________________________ LILY HO-VUONG Legal Assistant