Case 1:07-cv-00243-AWI-DLB Document 6 Filed 03/29/07 Page 1 of 4
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` UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF CALIFORNIA
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`1:07cv0243 AWI DLB
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`ORDER DISMISSING COMPLAINT WITH
`LEAVE TO AMEND
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`Defendant.
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`Plaintiff Richard Rousay (“Plaintiff”), proceeding pro se and in forma pauperis, filed the
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`instant civil rights action on February 15, 2007.
`DISCUSSION
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`A.
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`Screening Standard
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`Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the
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`complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof
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`if the court determines that the action is legally “frivolous or malicious,” fails to state a claim
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`upon which relief may be granted, or seeks monetary relief from a defendant who is immune
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`from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state
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`a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be
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`cured by amendment.
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`RICHARD ROUSAY,
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`Plaintiff,
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`v.
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`GEORGE BUSH, et al.,
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`Case 1:07-cv-00243-AWI-DLB Document 6 Filed 03/29/07 Page 2 of 4
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`B.
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`Failure to State a Claim
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`A complaint, or portion thereof, should only be dismissed for failure to state a claim upon
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`which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in
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`support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding,
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`467 U.S. 69, 73 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Palmer v.
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`Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a
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`complaint under this standard, the court must accept as true the allegations of the complaint in
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`question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the
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`pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor.
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`Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
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`C.
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`Plaintiff’s Allegations
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`As best the Court can tell, Plaintiff alleges that Defendants George W. Bush and Dick
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`Cheney committed perjury in connection with the United States’ involvement in Iraq. He also
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`alleges that Bush and Cheney received payments from Halliburton, an oil-services company, in
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`connection with the Iraq war. Plaintiff further alleges that Defendant George Tenet, former
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`Director of the Central Intelligence Agency, kidnaped and tortured up to 10,000 people from
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`North America, Europe and other locations. As an example, Plaintiff alleges that a Canadian
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`citizen was kidnaped at JFK Airport in New York and beaten and tortured until he made a false
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`confession.
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`Plaintiff next explains that his home and business were unlawfully confiscated in Salt
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`Lake City, and he fled to Canada for several months because of death threats. For several months
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`after September 11, 2001, Plaintiff feared returning to the United States because he worried that
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`his business in explosives and his ancestry would make him a target for deportation to his birth
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`country. He alleges that he returned to the United States when the news broke about the
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`Canadian kidnaped at JFK Airport. He contends that his green card was illegally taken by United
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`States officials and now asks that the Court (1) return his green card or allow him to become a
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`naturalized citizen; (2) award him compensatory damages in excess of $100,000 dollars; and (3)
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`Case 1:07-cv-00243-AWI-DLB Document 6 Filed 03/29/07 Page 3 of 4
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`order the payments from Halliburton be returned and divided equally amongst the members of
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`the United States military who have died, or have been injured, in Iraq.
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`D.
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`Discussion
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`Plaintiff’s claims fail to state a claim for which relief can be granted. He complains
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`of various actions, some of which are unrelated, yet he fails to explain how each of the
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`Defendants were involved in violating any of his rights. In fact, many of the allegations, such as
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`his complaints relating to the United States’ involvement in Iraq, do not even involve Plaintiff.
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`A plaintiff who fails to allege an injury in fact fails to demonstrate a personal stake in the
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`outcome of a controversy sufficient to satisfy the standing requirements of Article III. Mottola v.
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`Nixon, 464 F.2d 178, 181 (9th Cir. 1972). The federal courts are not forums in which citizens
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`can “air [their] generalized grievances about the conduct of government or the allocation of
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`power in the Federal System.” Flast v. Cohen, 392 U.S. 83, 106 (1968). Moreover, even
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`assuming Plaintiff could demonstrate some personal involvement, courts generally refuse to
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`exercise jurisdiction to consider the constitutionality or legality of a President’s wartime
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`decisions based on the separation of powers principles. See eg. Ange v. Bush, 752 F.Supp. 509,
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`514 (D.C.Cir. 1990).
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`To the extent he complains of wrongful actions taken against him, such as the allegedly
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`illegal seizure of his green card, Plaintiff fails to explain how Defendants Bush, Cheney or Tenet
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`were involved. Although the Federal Rules adopt a flexible pleading policy, a complaint must
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`give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community
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`Redev. Agency, 773 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some
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`degree of particularity vert acts in which Defendants engaged that support Plaintiff’s claims. Id.
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`Plaintiff is further informed that the three named Defendants may be entitled to
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`immunity. President Bush is entitled to absolute immunity from damages liability predicated on
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`his official acts. Nixon v. Fitzgerald, 457 U.S. 731, 755-756 (1982). Senior Presidential aids
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`and advisors are generally entitled to qualified immunity. Harlow v Fitzgerald, 457 US 800
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`(1982). They are, however, entitled to absolute immunity in situations where they can show (1)
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`that the responsibilities of his or her office embraced a function so sensitive as to require a total
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`Case 1:07-cv-00243-AWI-DLB Document 6 Filed 03/29/07 Page 4 of 4
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`shield from liability; and (2) that he or she was discharging the protected function when
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`performing the act for which liability is asserted. Id.
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`Finally, insofar as Plaintiff requests that the Court return his green card or allow him to
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`become a naturalized citizen, such actions are executive, not judicial, functions.
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`Given Plaintiff’s status as a pro se litigant and the fact that the Court is unable to
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`conclude that Plaintiff cannot cure these deficiencies, Plaintiff will be granted leave to amend.
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`Plaintiff is informed that the Court cannot refer to a prior pleading in order to make his
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`amended complaint complete. Local Rule 15-220 requires that an amended complaint be
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`complete in itself without reference to any prior pleading. This is because, as a general rule, an
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`amended complaint supercedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th
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`Cir. 1967). Once Plaintiff files an amended complaint, the original pleading no longer serves any
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`function in the case.
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`Accordingly, IT IS HEREBY ORDERED that Plaintiff’s complaint is DISMISSED
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`WITH LEAVE TO AMEND. Plaintiff may file an amended complaint within thirty (30) days of
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`the date of service of this order. Plaintiff’s complaint should be clearly titled, “First Amended
`Complaint,” and shall refer to the case number assigned to this action. If Plaintiff does not file
`an amended complaint within this time frame, the Court will recommend that this action
`be dismissed.
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`IT IS SO ORDERED.
`Dated: March 27, 2007 /s/ Dennis L. Beck
`3b142a UNITED STATES MAGISTRATE JUDGE
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