United States District Court, D. Oregon
A. RUSSO UNITED STATES MAGISTRATE JUDGE
plaintiff, Christopher Beck, brings this action alleging
privacy concerns and retention of his blood knowing it can be
"synthesized then doctored to make a child."
Complaint (#2) at p.4. Plaintiff also alleges he attempted to
get his records released to no avail, however, those same
records were released to governmental entities. Id.
On September 17, 2018, the court granted plaintiff's
application to proceed in forma pauperis (IFP).
court should dismiss, at the earliest practical time, certain
IFP actions that fail to state a claim. 28 U.S.C. §
1915(e)(2)(B)(ii). In determining the sufficiency of a pro se
complaint, the court must be mindful to construe it liberally
in favor of the plaintiff. Haines v. Kerner, 404
U.S. 519, 520-21 (1972); see also Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (in
assessing whether a complaint fails to plead a claim, the
court must accept all factual allegations as true);
Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336,
337-38 (9th Cir.1996) (allegations of material fact are taken
as true and construed in the light most favorable to
asserts diversity jurisdiction in his complaint. Complaint
(#2) at p.1. However, plaintiff also alleges he is an Oregon
citizen and it is unclear if Quest Diagnostics is also an
Oregon citizen for purposes of diversity jurisdiction.
See 28 U.S.C. § 1332 (federal courts have
original jurisdiction in civil actions where amount in
controversy exceeds $75, 000 and the action lies between
citizens of different states).
the complaint liberally, it cannot be determined if plaintiff
has alleged a cognizable claim upon which to assert federal
question jurisdiction. See 28 U.S.C. § 1331
(federal courts have original jurisdiction of all civil
actions arising under the Constitution and laws of the United
States). With respect to the federal defendant, the complaint
implicates the Freedom of Information Act (FOIA), 5 U.S.C.
§ 522; the Federal Tort Claims Act (FTCA), 28 U.S.C.
§ 1346; and the Privacy Act, 5 U.S.C. § 552a.
elements of a FOIA claim are (1) improperly; (2) withheld;
(3) agency records. Dunn v. Haag, 2017 WL 818863, at
*3 (N.D. Cal. Mar. 2, 2017), appeal dismissed, No. 17-15510,
2017 WL 4216889 (9th Cir. Aug. 15, 2017). It is unclear what
agency records requests plaintiff may have made and whether
such records were improperly withheld. Moreover, courts
generally require exhaustion of administrative remedies
before bringing a FOIA claim. Andrus v. United States
Dep't of Energy, 200 F.Supp.3d 1093, 1101-02 (D.
Idaho 2016) (exhaustion allows the agency to "exercise
its discretion and expertise and the opportunity to make a
record for the district court to review.").
FTCA waives the United States' sovereign immunity for
certain torts committed by federal employees. FDIC v.
Meyer, 510 U.S. 471 (1994). The FTCA provides that
district courts have exclusive jurisdiction over civil
actions against the United States for money damages
“for injury or loss of property, or personal injury or
death caused by the negligent or wrongful act or omission of
any employee” of the federal government while acting
within the scope of his or her office or employment. 28
U.S.C. § 1346(b)(1).
United States is the only proper defendant in a suit brought
pursuant to the FTCA. FDIC v. Craft, 157 F.3d 697,
706 (9th Cir. 1998); Kennedy v. United States Postal
Serv., 145 F.3d 1077, 1078 (9th Cir. 1998). “A
claim against [a federal agency] in its own name is not a
claim against the United States.” Kennedy, 145
F.3d at 1078. Nor is an agency a proper defendant under the
FTCA. Shelton v. United States Customs Serv., 565
F.2d 1140, 1141 (9th Cir. 1977)).
the FTCA a claim must be filed with the appropriate federal
agency within two years of its accrual and suit must be
commenced within six months of the agency's denial of the
claim. 28 U.S.C. § 2401(b). This administrative
exhaustion requirement is mandatory and jurisdictional.
McNeil v. United States, 508 U.S. 106, 113 (1993)
(“The FTCA bars claimants from bringing suit in federal
court until they have exhausted their administrative
remedies.”). Exhaustion must be affirmatively alleged
in the complaint. Gillespie v. Civiletti, 629 F.2d
637, 640 (9th Cir. 1980).
establish liability under the Privacy Act, plaintiff must
establish the following elements: (1) that the disclosed
information is a “record” contained within a
“system of records;” (2) that the agency
improperly disclosed the information; (3) that the disclosure
was “willful or intentional;" and (4) that the
disclosure had an adverse effect on plaintiffs. See Quinn
v. Stone, 978 F.2d 126, 131 (3d Cir. 1992).
to a FOIA claim, it appears that exhaustion is not a
jurisdictional requirement for a Privacy Act claim, but
necessary as a practical matter:
the Ninth Circuit has refused to consider whether a district
court properly dismissed a Privacy Act claim for failure to
exhaust because “even in the absence of an explicit
exhaustion requirement, a district court may in its
discretion require such exhaustion.” Buckley v.
Schaul, 135 Fed.Appx. 960, 960 (9th Cir. 2005) (citing
Southeast Alaska Conservation Council, Inc. v.
Watson, 697 F.2d 1305, 1309 (9th Cir. 1983)).
Demoruelle v. Dep't of Veterans Affairs, 2017 WL
2836989, at *7, n. 7 (D. Haw. June 30, 2017).
To properly exhaust administrative remedies, a plaintiff must
submit a Privacy Act request to the agency and seek review
within the agency under the agency's regulations.
See 5 U.S.C. § 552a(e)-(f) (requiring covered
agencies to establish regulations governing such requests);
Thorn v. Social Sec. ...