                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


                                                )
JOSE GUZMAN SALCEDO,                            )
                                                )
                 Plaintiff,                     )
                                                )
                 v.                             )        Civil Action No. 08-814 (RMC)
                                                )
CHARLES O. ROSSOTTI, et al.,                    )
                                                )
                 Defendants.                    )
                                                )



                                    MEMORANDUM OPINION

                 Plaintiff, a prisoner proceeding pro se and in forma pauperis, asserts claims under 42

U.S.C. §§ 1983 and 1985 against four named individuals and five unknown persons, each in both

his official and individual capacities, alleging violations of plaintiff’s constitutional rights under the

Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Fourteenth Amendments to the

Constitution. The named defendants have filed a motion to dismiss on multiple grounds, and the

plaintiff has filed two oppositions in response. While the defendants have moved for dismissal for

failure to effect proper service on the defendants in their individual capacities and for lack of

personal jurisdiction, because effective service is, in part, the responsibility of the United States

Marshal Service in an in forma pauperis case, the Court does not base its decision on those grounds.

However, because the Complaint does not state a claim upon which relief may be granted, the

defendants’ motion will be granted and the Complaint will be dismissed.1




        1
            This dismissal will count as a “strike” for purposes of 28 U.S.C. § 1915(g).
                                        I. BACKGROUND

               The parts of the 46-page Complaint (“Compl.”) that pertain to these defendants allege

that the former Commissioner of the Internal Revenue Service (“IRS”) and other agents of the United

States Department of the Treasury conspired to cause false charges to be filed against the plaintiff

in March 2002, which led law-enforcement officers to search and seize some of plaintiff’s property,

none of which has been returned although the charges have been dropped. According to factual

allegations in the Complaint, in June 2001, the plaintiff attempted to have an unscheduled meeting

with the IRS Commissioner at his office in Washington, D.C., for the purpose of determining

whether Commissioner Charles Rossotti was in fact another person, a Texas businessman named

Charles R. Ofner.2 Compl. at 1. When that meeting was refused, the plaintiff attempted to see

Commissioner Rossotti’s wife at her place of business in Washington, a private law firm. Id. at 7.

After that meeting was also refused, plaintiff attempted to meet with several federal legislators, none

of whom was available to meet with him. Id. When plaintiff returned to his hotel, he received a call

from defendant Steve Geary, an agent from the Treasury Department’s Inspector General’s office,

who asked plaintiff to come to Geary’s office. Id. Plaintiff declined, and Geary, accompanied by

defendant Timothy Camus and the five unnamed defendant agents, “forced” plaintiff to meet with

them in the hotel lobby. Id. During this meeting, the unknown agents made




       2
           The plaintiff believes that Ofner defrauded him. Compl. at 4. Based on the Complaint’s
allegations, it appears that after asking the IRS to investigate Ofner (and others) and being
dissatisfied with the lack of response, id. at 3, plaintiff came to the conclusion, aided by photos from
the internet, that Ofner and Rossotti were the same person, id. at 6. Plaintiff believes, albeit
mistakenly, that he has a right to “receive” an investigation of persons he reports to the IRS. Id. at
3; see also id. at 13. It appears that plaintiff has inferred wrong-doing by the IRS Commissioner
because the requested investigations were not undertaken.

                                                 -2-
        terrorist threats against Plaintiff on how he should not pursue an investigation against
        the Commissioner and his wife. There were also comments that the Plaintiff needed
        brain surgery. This interview lasted approximately 45 minutes and was recorded by
        the agents . . . .

Id.

                Nearly nine months later, on March 10, 2002, an anonymous tip to law-enforcement

officials “that Plaintiff was holding his family hostage within their residence,” id. at 8, resulted in

plaintiff’s arrest and subsequent searches and seizures of plaintiff’s property, including a property

in Mexico. Id. at 8-10. One of these searches and seizures involved another named defendant in this

case, Luke Yoo, an IRS agent in the criminal division, id. at Ex. D, who, with other law-enforcement

officials from other agencies, allegedly tricked the plaintiff into making a wire transfer of plaintiff’s

money into an account held by the San Bernardino County Sheriff’s Department. Id. at 9-10. State

criminal charges preferred against the plaintiff were later dismissed.3 Id. Plaintiff “argues that it is

clear” from his Complaint that “the Officers initiated a plan” to search and seize plaintiff’s property,



        3
           The Court accepts as true the allegation that criminal charges related to the subject of the
“anonymous tip” — keeping plaintiff’s family hostage — were later dismissed, Compl. at 8, and
understands that plaintiff’s current incarceration is for a conviction that he describes as “unrelated”
to this civil suit, Pl.’s Motion for Reconsideration at 4. Actually, Plaintiff’s confinement is pursuant
to a state court criminal sentence to 20 years’ imprisonment, after a jury convicted him of

        two counts of exhibiting a firearm in the presence of a police officer, possession of
        a concealed firearm, assault on a peace officer with a semiautomatic firearm, assault
        with a deadly weapon, possession of a controlled substance with a firearm, and
        possession of a firearm in a school zone.

Report and Recommendation of United States Magistrate Judge at 2, Salcedo v. Ollison, Case No.
06-1068-GPS (AGR) (C.D. Cal. Jan. 30, 2008) (recommending that plaintiff’s petition for habeas
corpus be denied) (“Rep. & Rec.”). Those charges stemmed from plaintiff’s unlawful conduct
during, and subsequent searches and seizures stemming from, the March 10, 2002 encounter with
law-enforcement officials, which was triggered by an anonymous 911 call, see Rep. & Rec. at 4,
referenced in the Complaint, see Compl. at 8.

                                                  -3-
id. at 11, “in order to put Plaintiff in prison and protect the illicit activities” of Commissioner

Rossotti/Ofner, id. at 3.

                The Complaint in this case was submitted for filing on April 28, 2008. In major part,

it is a photocopy of a Complaint previously submitted in the United States District Court for the

Central District of California. Compare Compl. at 11-46 with Compl. at 13-51, appended to Order,

Salcedo v. 1 Through 10, Civil Case No. 07-1478 (C.D. Cal. April 2, 2008). It is unclear whether

the court’s action in the earlier-filed case operates to bar this litigation on the grounds of res judicata.

See Cieszkowska v. Gray Line New York, 295 F.3d 204, 206 (2d Cir. 2002) (holding that a dismissal

under 28 U.S.C. §§ 1915 or 1915A for failure to state a claim upon which relief may be granted

operates as a decision on the merits for res judicata purposes and citing cases). The district court in

California did not dismiss the Complaint per se for failure to state a claim, but instead denied the

application to proceed in forma pauperis on the ground that the Complaint did not state a claim upon

which relief could be granted. See Order at 1, Salcedo v. 1 Through 10, Civil Case No. 07-1478

(C.D. Cal. April 2, 2008). That court’s determination was explained only by a five-sentence

statement specifically noting that the claims were time-barred and that some of the defendants (who

are not named in the instant case) were not state actors. Neither of those grounds provides a basis

for the decision in this case. Therefore, in an abundance of caution, this Court proceeds to make a

determination on the merits of this Complaint.




                                                   -4-
                                     II. LEGAL STANDARD

                On a motion to dismiss for failure to state a claim upon which relief may be granted,

a pro se complaint must be liberally construed in favor of the plaintiff. Haines v. Kerner, 404 U.S.

519, 520 (1972). Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a court to dismiss a

complaint if it fails “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim

showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the .

. . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007) (internal quotation marks and citations omitted). In determining whether a complaint fails

to state a claim upon which relief may be granted, generally a court “must accept as true all of the

factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, ___, 172 S. Ct.

2197, 2200 (2007), and “grant plaintiffs the benefit of all inferences that can be derived from the

facts alleged,” Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). There

are limits and exceptions, however. First, a court need not accept inferences drawn by the plaintiff

if those inferences are unsupported by facts alleged in the complaint.                Kowal v. MCI

Communications Corp., 16 F.3d at 1276. Second, a court need not accept a plaintiff’s legal

conclusions. Id. “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’

requires more than labels and conclusions.” Bell Atlantic Corp. v. Twombly, 550 U.S. at 555

(quoting Fed. R. Civ. P. 8.). It requires a “showing” and not just a blanket assertion of a right to

relief. Id. at 555 n.3. In short, a complaint fails “if it tenders naked assertions devoid of further

factual enhancements.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks

and alterations omitted).


                                                 -5-
        In keeping with these principles a court considering a motion to dismiss can choose
        to begin by identifying pleadings that, because they are no more than conclusions, are
        not entitled to the assumption of truth. While legal conclusions can provide the
        framework of a complaint, they must be supported by factual allegations. When
        there are well-pleaded factual allegations, a court should assume their veracity and
        then determine whether they plausibly give rise to an entitlement to relief.

Id. at 1950. Third, where, as here, a plaintiff is proceeding in forma pauperis, a court has “the

unusual power to pierce the veil of the complaint’s factual allegations and dismiss those claims

whose factual contentions are clearly baseless” or describe “fantastic or delusional scenarios.”

Neitzke v. Williams, 490 U.S. 319, 327 (1989).

                                           III. ANALYSIS

                In keeping with the obligation to liberally construe a pro se complaint, because all of

the defendants were federal agents, not state actors, at the relevant time, the Court construes this

Complaint as one brought under Bivens v. Unknown Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971). Because Bivens does not afford a cause of action against federal officials in their

official capacity, the claims against the defendants in their official capacities cannot survive, leaving

only the personal capacity suits for further analysis. See Wormley v. United States, 601 F. Supp. 2d

27, 34 n.8 (D.D.C. 2009) (dismissing the official capacity claims under Bivens against the federal

defendants and leaving only the individual capacity suits); Majhor v. Kempthorne, 518 F. Supp. 2d

221, 244-45 (D.D.C. 2007) (stating that “a Bivens action may be maintained against a defendant only

in his or her individual capacity, and not in his or her official capacity”) (internal quotation marks

omitted).




                                                  -6-
               The Complaint alleges that the unnamed defendants made “terrorist threats.” Compl.

at 2, 7. Liberally construed, this is a legal conclusion, and therefore entitled to no assumption of

truth. The factual allegations offered in support of that statement allege only that

       there were terrorist threats made against Plaintiff on how he should not pursue an
       investigation against the Commissioner and his wife. There were also comments that
       Plaintiff needed brain surgery.

Id. at 7. These factual allegations do not plausibly give rise to an entitlement to relief. Advising

someone to cease his private investigation and consider brain surgery may be unprofessional and

even rude, but it does not constitute a “terrorist threat” and does not describe a situation that

plausibly suggests a violation of any of the plaintiff’s constitutional rights. See Ashcroft v. Iqbal,

129 S. Ct. at 1950.

               The Complaint also alleges that the named defendants conspired to manufacture and

maintain false charges against the plaintiff, depriving plaintiff of his property. Compl. at 2, 8. These

conclusory statements are naked assertions without factual support. The Complaint does no more

to tie the defendants to the alleged wrong-doing than to state that

       on March 10, 2002, Plaintiff was faced with a number of serious problems by various
       law enforcement agencies, who[] manufactured false information in order to enter
       upon Plaintiff’s property alleging that they had received a phone call from an
       unknown source, that Plaintiff was holding his family hostage within their residence,
       which upon entry escalated into a serious situation, and for no valid reason, as the
       allegation was in fact false. In turn, false criminal charges were maliciously
       fabricated against Plaintiff, in order to put Plaintiff in prison and protect their illicit
       activities.

Id. at 8. On this basis, the Complaint concludes that

       it is clear from the above, that the Officers initiated a plan on how to enter upon and
       into Plaintiff’s property, residence and bank accounts, to take money, and other items
       of value or monetary concern, including legal document information regarding the
       lawsuits.


                                                  -7-
Id. at 11. These vague, “naked assertions devoid of factual enhancements” are wholly conclusory

and not entitled to the assumption of validity. Ashcroft v. Iqbal 129 S. Ct. at 1950. Furthermore,

as alleged, they are incapable of plausibly giving rise to an entitlement for relief for a constitutional

violation.

                To the extent that the Complaint intends to assert claims either against Commissioner

Rossotti for defrauding the plaintiff by acting through his alleged other persona, Ofner, or against

Agent Yoo for participating with other law-enforcement officials to trick the plaintiff into executing

a wire transfer of plaintiff’s money to the San Bernardino Sheriff Department’s bank account, the

Court finds that these claims describe “fantastic or delusional scenarios” that are properly dismissed

as frivolous on the Court’s authority under 28 U.S.C. §§ 1915(e)(2)(B)(i), 1915A(b)(1) (requiring

dismissal of frivolous claims) and Neitzke v. Williams, 490 U.S. at 327 (holding that 28 U.S.C.

§ 1915(e) grants judges “the unusual power to pierce the veil of the complaint’s factual allegations

and dismiss those claims whose factual contentions are clearly baseless”).

                                        IV. CONCLUSION

                Because the Complaint fails to state a claim against these defendants upon which

relief may be granted, the defendants’ motion will be granted and the Complaint will be dismissed.

All other pending motions will be denied as moot. A separate order accompanies this memorandum

opinion.


DATE: July 20, 2009                                            /s/
                                                ROSEMARY M. COLLYER
                                                United States District Judge




                                                  -8-
