Hossnieh v. U.S. Marshals

Filing 3

ORDER granting 2 Motion to Proceed IFP, signed by Magistrate Judge Allison Claire on 4/29/15. Plaintiff's complaint is dismissed. Plaintiff is granted 30 days from the date of service of this order to file an amended complaint. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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REZA HOSSNIEH,

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No. 2:15-cv-00795-TLN-AC

Plaintiff,
v.

ORDER

U.S. MARSHALS,

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Defendant.

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Plaintiff is proceeding in this action pro se. Plaintiff has requested authority pursuant to

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28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to the undersigned

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by Local Rule 302(c)(21).

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Plaintiff has submitted the affidavit required by § 1915(a) showing that she is unable to

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prepay fees and costs or give security for them. Accordingly, the request to proceed in forma

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pauperis will be granted. 28 U.S.C. § 1915(a).

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The federal in forma pauperis statute authorizes federal courts to dismiss a case if the

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action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,

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

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§ 1915(e)(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227–28 (9th
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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327.

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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 a 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. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45–46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hospital

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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Plaintiff alleges that on April 9, 2014, she was transferred from Sacramento County Jail to

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a facility in Pahrump, Nevada (hereinafter “the Pahrump Facility”). ECF No. 1 at 1. While

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plaintiff was being transferred, the Sacramento County Deputies were supposed to hand some of

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her property over to the U.S. Marshals to be picked up by members of plaintiff’s family. Id.

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Instead, the deputies threw plaintiff’s property away. Id. When plaintiff asked Sacramento

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County to reimburse her for her lost property she was told that she would have to contact the U.S.

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Marshals because she was a federal prisoner. Id. The U.S. Marshals, in turn, told her to file a tort

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claim if she wanted to be reimbursed. Id.

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Nevertheless, plaintiff apparently had some of her property with her at the time of her

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transfer. Id. When she was transferred a second time to a federal facility on April 21, 2014, her

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remaining property was supposed to be mailed home to her family. Id. Members of plaintiff’s

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family sent the Pahrump Facility $18 for postage fees but the facility lost plaintiff’s property and

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kept the $18. Id. Plaintiff was again told that she would have to obtain any reimbursement from

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the U.S. Marshals, who again told her that she would have to file a tort claim. Id. at 1–2.

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Plaintiff seeks $1,500 as reimbursement for her lost property from the U.S. Marshals. Id. at 2.

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The court finds that plaintiff’s complaint does not contain a short and plain statement

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showing why she is entitled to relief as required by Federal Rule of Civil Procedure 8(a)(2).

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Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice

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and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency,

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733 F.2d 646, 649 (9th Cir. 1984). The facts alleged in plaintiff’s complaint are commendably

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clear and the relief sought well articulated; however, plaintiff does not explain the legal basis for

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her claim. The only clue plaintiff has given as to what cause of action she may be intending to

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pursue is the fact that the U.S. Marshals instructed her to file “a tort claim.” ECF No. 1 at 1–2.

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Plaintiff, however, cannot bring a tort claim against the U.S. Marshals.

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“As sovereign, the United States ‘can be sued only to the extent that it has waived its

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immunity’ from suit.” O’Toole v. United States, 295 F.3d 1029, 1033 (9th Cir. 2002). And while

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the Federal Tort Claims Act (“FTCA”) does waive the government’s immunity from tort claims,

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28 U.S.C. § 2674, it does not authorize tort claims based on the “detention of any . . . property by

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any . . . law enforcement officer.” 28 U.S.C. § 2680(c); see also United States v. Norwood, 602

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F.3d 830, 833 (7th Cir. 2010). This means that plaintiff cannot state a FTCA claim against the

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U.S. Marshals based on the loss of her property while in custody. See Bramwell v. U.S. Bureau

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of Prisons, 348 F.3d 804, 806 (9th Cir. 2003) (holding that U.S. Bureau of Prisons officers

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constitute “law enforcement officers” under § 2680(c) in accordance with the majority, more

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expansive interpretation of the term). Even if plaintiff could state a FTCA claim against the U.S.

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Marshals she would still have to allege exhaustion of her administrative remedies, which she has

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not done. 28 U.S.C. § 2675(a); Osborn v. Haley, 549 U.S. 225, 234 (2007).

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Although plaintiff cannot bring a FTCA claim against the U.S. Marshals, she is not

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without a remedy. 31 U.S.C. § 3724 authorizes the Attorney General to settle claims for losses up

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to $50,000 caused by law enforcement personnel. It merits noting that the statute does not

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provide for any judicial review of the Attorney General’s decision. 31 U.S.C. § 3724(b);

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Norwood, 602 F.3d at 836 (“We note the absence of judicial review of the Attorney General's

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decision on whether or on what terms to settle a claim . . . . In other words, victims of torts by

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federal law enforcement agents are remitted to an administrative remedy that is final.”).
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Plaintiff is cautioned that if she chooses to file an amended complaint, she must submit a

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short and plain statement in accordance with Federal Rule 8(a) pointing to some cognizable legal

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theory that entitles her to relief. Any amended complaint must also show that the federal court

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has jurisdiction, the action is brought in the right place, and plaintiff is entitled to relief if her

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allegations are true. The amended complaint should contain separately numbered, clearly

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identified claims.

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In addition, the allegations of the complaint must be set forth in sequentially numbered

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paragraphs, with each paragraph number being one greater than the one before, each paragraph

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having its own number, and no paragraph number being repeated anywhere in the complaint.

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Each paragraph should be limited “to a single set of circumstances” where possible. Fed. R. Civ.

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P. 10(b). Plaintiff must avoid excessive repetition of the same allegations. Plaintiff must avoid

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narrative and storytelling. That is, the complaint should not include every detail of what

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happened, nor recount the details of conversations (unless necessary to establish the claim), nor

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give a running account of plaintiff’s hopes and thoughts. Rather, the amended complaint should

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contain only those facts needed to show how the defendant legally wronged the plaintiff.

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Local Rule 15-220 requires that an amended complaint be complete in itself without

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reference to any prior pleading. This is because, as a general rule, an amended complaint

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supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once

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plaintiff files an amended complaint, the original pleading no longer serves any function in the

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case. Therefore, in an amended complaint, as in an original complaint, each claim and the

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involvement of each defendant must be sufficiently alleged.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s application to proceed in forma pauperis, ECF No. 2, is GRANTED;

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2. Plaintiff's complaint, ECF No. 1, is dismissed; and

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3. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of the Federal Rules of Civil Procedure, and the

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Local Rules of Practice; the amended complaint must bear the docket number assigned this case

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and must be labeled “First Amended Complaint”; plaintiff must file an original and two copies of
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the amended complaint; failure to file an amended complaint in accordance with this order will

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result in a recommendation that this action be dismissed.

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DATED: April 29, 2015

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