Wheeler v. United States

Filing 4

ORDER granting 2 Motion to Proceed IFP; directing Clerk to assign a District Judge to this matter and FINDINGS and RECOMMENDATIONS recommending DISMISSAL of action with prejudice for lack of jurisdiction re 1 Complaint signed by Magistrate Judge Jennifer L. Thurston on 8/2/2011. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 8/22/2011. (Lundstrom, T)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

JOHN FREDERICK WHEELER,

12

Plaintiff,

13
14

v.
UNITED STATES,

15
16

Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

1:11-cv-01045-LJO-JLT
ORDER GRANTING MOTION TO PROCEED
IN FORMA PAUPERIS (Doc. 2)
ORDER TO THE CLERK TO ASSIGN A
DISTRICT JUDGE TO THIS MATTER
FINDINGS AND RECOMMENDATIONS
DISMISSING THE ACTION WITH
PREJUDICE FOR LACK OF JURISDICTION
(Doc. 1)

17
18
19

Plaintiff John Frederick Wheeler (“Plaintiff”) seeks to proceed pro se and in forma

20

pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his Complaint on

21

June 23, 2011, asserting claims against the United States Postal Service (“Defendant”). (Doc. 1).

22

Plaintiff filed his motion to proceed in forma pauperis on June 23, 2001 as well. (Doc. 2). For

23

the following reasons, the Court recommends Plaintiff’s Complaint be DISMISSED WITH

24

PREJUDICE.

25

I. Proceeding in forma paueris

26

The Court may authorize the commencement of an action without prepayment of fees

27

“but a person who submits an affidavit that includes a statement of all assets such person . . .

28

possesses [and] that the person is unable to pay such fees or give security therefor.” 28 U.S.C. §
1

1

1915(a). The Court has reviewed the application and has determined that it satisfies the

2

requirements of 28 U.S.C. § 1915(a). Therefore, Plaintiff’s Motion to Proceed In Forma

3

Pauperis is GRANTED.

4

II. Screening Requirement

5

In accord with 28 U.S.C. 1915(e)(2), the Court screened Plaintiff’s Complaint because he

6

was proceeding in forma pauperis. The Court is required to review the complaint, and shall

7

dismiss the case at any time if the Court determines that the allegation of poverty is untrue, or the

8

action or appeal is “frivolous, malicious or fails to state a claim on which relief may be granted;

9

or . . . seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C.

10

1915(e)(2).

11

III. Pleading Requirements

12

The Federal Rules of Civil Procedure outline the general requirements of pleading a

13

complaint. A complaint is required to have a “short and plain statement” that outlines the

14

grounds for jurisdiction in that court as well as “showing that the pleader is entitled to relief; and

15

a demand for the relief sought.” Fed. R. Civ. P. 8(a). Pro se complaints are generally held to

16

“less stringent standards” than complaints drafted by lawyers. Haines v. Kerner, 404 U.S. 519,

17

520-21 (1972).

18

A complaint must afford fair notice to the defendant as well as state the elements of the

19

claim in a plain and succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649

20

(9th Cir. 1984). The complaint is supposed to give the defendant fair notice of the claims that are

21

being brought against him/her as well as the grounds for bringing them. Swierkiewicz v. Sorema

22

N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted,

23

25

Rule 8 does not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that
offers labels and conclusions or a formulaic recitation of the elements of a cause
of action will not do. Nor does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement.

26

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted).

27

Allegations that are conclusory and vague do not support a cause of action. Ivey v. Board of

28

Regents, 673 F.2d 266, 268 (9th Cir. 1982). The Court further clarified that,

24

2

1

5

[A] complaint must contain sufficient factual matter, accepted as true, to "state a
claim to relief that is plausible on its face." [Citation] A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.
[Citation] The plausibility standard is not akin to a "probability requirement," but
it asks for more than a sheer possibility that a defendant has acted unlawfully.
[Citation] Where a complaint pleads facts that are "merely consistent with" a
defendant's liability, it "stops short of the line between possibility and plausibility
of 'entitlement to relief.

6

Iqbal, 129 S.Ct. at 1949. A Court is required to assume as true in the light most favorable to the

7

plaintiff, any well-pled factual allegations, when determining if the plaintiff is entitled to relief.

8

Id. However, this tenet is “inapplicable to legal conclusions.” Id. If a complaint fails to state a

9

recognizable claim, the Court has the discretion to grant leave to amend the complaint in order to

2
3
4

10

amend the deficiencies in the factual allegations. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th

11

Cir. 2000) (en banc).

12

IV. § 1983 Claims

13

Section 1983 of title 42 of the United States Code does not confer substantive rights; but

14

instead provides “a method for vindicating federal rights elsewhere conferred.” Albright v.

15

Oliver, 510 U.S. 266, 271 (1994). Section 1983 states in relevant part:

16
17
18

Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State… subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress.

19
20

42 U.S.C. § 1983. In order to state a claim pursuant to § 1983, a plaintiff must allege facts that

21

support that (1) he was deprived of a right afforded to him by federal law, and (2) the deprivation

22

was committed by someone acting under color of state law. West v. Atkins, 487 U.S. 42, 48-49

23

(1988); Williams v. Gorton, 529 F.2d 668, 670 (9th Cir. 1976). Additionally, a plaintiff is

24

required to allege a specific injury suffered, as well as show a causal relationship between the

25

defendant’s conduct and the injury suffered by the plaintiff. See Rizzo v. Goode, 423 U.S. 362,

26

371-72, 377 (1976); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person deprives

27

another of a federal right “if he does an affirmative act, participates in another’s affirmative acts,

28

or omits to perform an act which he is legally required to do so that it causes the deprivation of
3

1

which complaint is made”). Lastly, similar to any other complaint, conclusory allegations that

2

lack supporting facts are insufficient to state a claim under § 1983. Sherman v. Yakahi, 549 F.2d

3

1287, 1290 (9th Cir. 1977).

4

V. Discussion & Analysis

5

Plaintiff alleges the Defendant violated his First, Fifth, and Fourteenth Amendment rights

6

when they deliberately refused to forward his mail to his new address and kept sending it to his

7

old address. (Doc. 1 at 1-2). Plaintiff states he filed a change of address form with the U.S. Post

8

Office at Planz Road to change his address to 2201 Hughes Lane, Bakersfield, CA 93304. Id.

9

He claims the post office notified him that pursuant to Postal Operations Manual 615.2 they were

10

unable to forward mail from his previous address, 1010 S. Union Ave., Bakersfield, CA 93307,

11

because it was a motel business address and therefore they would keep sending his mail there.

12

Id. at 2, 14-15. Plaintiff claims Defendant is liable for these actions under section 1983 because

13

they amount to a violation of his constitutional rights. Id. at 1.

14

The United States has sovereign immunity and “may not be sued without its consent.”

15

United States v. Mitchell, 463 U.S. 206, 212 (1983). This consent is a prerequisite for

16

jurisdiction to be established. Id. The government's waiver of sovereign immunity “must be

17

unequivocally expressed in statutory text” and cannot be implied. Lane v. Pena, 518 U.S. 187,

18

192 (1996). However, section 1983 does not constitute a waiver of sovereign immunity.

19

Jachetta v. United States, 2011 U.S. App. LEXIS 15808, at *20 (9th Cir. Aug. 1, 2011). A

20

federal agency is not a “person” as defined in section 1983 and therefore is not subject to liability

21

under section 1983. Id. Therefore, because Defendant is a federal agency, it is immune from

22

Plaintiff’s section 1983 claim and this Court lacks jurisdiction.

23

VI. Findings and Recommendations

24
25

For the foregoing reasons, the Court finds Defendant is immune from Plaintiff’s claim
and this Court lacks jurisdiction.

26

Accordingly, IT IS HEREBY ORDERED:

27

1.

Plaintiff’s Motions to Proceed In Forma Pauperis (Doc. 2) is GRANTED;

28

2.

The Clerk of Court IS DIRECTED to assign a district judge to this matter;
4

1
2

3.

It is HEREBY RECOMMENDED Plaintiff’s Complaint (Doc. 1) be
DISMISSED WITH PREJUDICE.

3

These Findings and Recommendations are submitted to the United States District Judge

4

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the

5

Local Rules of Practice for the United States District Court, Eastern District of California.

6

Within FOURTEEN (14) days after being served with these Findings and Recommendations, any

7

party may file written objections with the court. Such a document should be captioned

8

“Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that

9

failure to file objections within the specified time may waive the right to appeal the District

10

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

11
12

IT IS SO ORDERED.

13

Dated: August 2, 2011
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5