SAN FRANCISCO — For the third time, the United States and the CIA have been released from a complaint that claims rogue agents are harassing an Egyptian-born civil engineer.
In a March 16 order, Northern District of California Judge Howard Llyod dismissed pro se plaintiff Al Zeiny’s complaint of emotional distress as well as an injunction he sought against the CIA.
Previously, Judge Edward Davila dismissed complaints from 2012 and 2013 brought by Zeiny, a naturalized citizen and Egyptian-born civil engineer, through motions based on Rules 12(b)(1) and 12(b)(6); however, Llyod wrote he only considered “non-exhaustive” tally of 23 harassment charges Zeiny claimed.
However, Zeiny saw it differently, filing his third 2017 complaint over retaliation he claimed was due his earlier complaints and that the CIA had an “anti-Zeiny campaign," which he claimed consisted of using radiational imaging to spy on him, installing transmitters in his ears and his loved ones' ears, altering his medications, drugging him, leaving animal carcasses outside his home, stealing his identity and causing termite infestation in his residence.
In reviewing the defendants' motion to dismiss and Zeiny’s opposition, Lloyd began noting the motions based on Rules 12(b)(1) and 12(b)(6).
Citing Wolfe v. Strankman, Lloyd wrote that a Rule 12(b)(1) “motion challenges subject matter jurisdiction and may be either facial or factual,” and further details that “a facial 12(b)(1) motion involves an inquiry confined to the allegations in the complaint, whereas a factual 12(b)(1) motion permits the court to look beyond the complaint to extrinsic evidence.”
“Zeiny presents a litany of complaints about unfortunate events, some relatively trivial, like botched orders from online retailers, and others more serious, like death threats and poisoning with PCP,” Lloyd wrote in the order. “Yet the complaint does not include anything to plausibly tie those occurrences to Defendants.”
Citing Bell Atlantic Corp. v. Twombly, Lloyd further wrote that under Rule 12(b)(6), if Rule 8(a)(2), which mandates a terse and plausible statement showing a plaintiff is due relief, is not met, then a motion to dismiss can be deemed appropriate.
“Here, to the extent Zeiny is simply asking for an injunction, he fails to state a cognizable claim because an injunction is a remedy, not an independent cause of action,” Judge Lloyd writes in the order. “Even if the Court were to treat his complaint as asserting independent claims under Cal. Civ. Proc. Code §§ 527.6 or 527.8, nothing in either statute suggests Congress ‘unequivocally expressed’ its consent to be sued thereunder.”
Lloyd ended his discussion dismissing the complaint without the opportunity to amend.