Wimberly v. United States of America et al

Filing 6

ORDER signed by Magistrate Judge Kendall J. Newman on 5/17/2017 GRANTING plaintiff's 3 request to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order. This action is DISMISSED. CASE CLOSED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARRY WIMBERLY,

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No. 2:17-cv-0858 KJN P

Plaintiff,
v.

ORDER

UNITED STATES OF AMERICA, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

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§ 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This

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proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff has consented to the jurisdiction of the undersigned. (ECF No. 5.)

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Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).
Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C.

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§§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

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the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly

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payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account.

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

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§ 1915(b)(2).

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For the reasons stated herein, this action is dismissed.

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(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 when 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. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

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2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

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meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

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1227.

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

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statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

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formulaic recitation of the elements of a cause of action;” it must contain factual allegations

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sufficient “to raise a right to relief above the speculative level.” Id. at 555. However, “[s]pecific

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facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what

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the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93
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(2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted).

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In reviewing a complaint under this standard, the court must accept as true the allegations of the

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complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most

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favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other

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grounds, Davis v. Scherer, 468 U.S. 183 (1984).

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Named as defendants are the United States of America, United States Department of State,

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United States Attorney General, Nicholas Phillip Trist, Republic of Cuba, Republic of Cuba

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Governor-General Ezeplata, Republic of Portugal, Republic of Portugal Consul Fernandez and

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Republic of Portugal Acting Consul Trist.

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Plaintiff appears to identify himself as a descendant of formerly enslaved African

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Americans. Plaintiff seeks monetary relief against defendants for past wrongs in connection with

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the institution of slavery. Plaintiff states that his claims are brought pursuant to the Alien Tort

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Claims Act (“ATCA”) and the Treaty of Ghent.

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For the reasons discussed herein, plaintiff’s complaint suffers from several pleading
defects which cannot be cured.

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First, the undersigned finds that plaintiff does not have standing to raise his claims.

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“When one ‘proceeds on a generalized, class-based grievance; [and] neither alleges, nor suggests

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that [ ]he might claim, any conduct on the part of any specific official or as a result of any specific

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program that has run afoul of a constitutional or statutory right and caused h[im] a discrete

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injury’, standing is absent.” Bell v. U.S., 2001 WL 1041792 at * 2 (N.D. Texas 2001) (quoting

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Cato v. United States, 70 F.3d 1102, 1109 (9th Cir. 1995). “Without a concrete, personal injury

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that is not abstract and that is fairly traceable to the government conduct that [plaintiff] challenges

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as unconstitutional, [plaintiff] lacks standing.” Cato, 70 F.3d at 1109 (African American pro se

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litigant did not have standing to bring claim against United States for damages due to

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enslavement of African Americans).

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Second, plaintiff’s claims brought pursuant to the Treat of Ghent are legally frivolous.

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The Treaty of Ghent, executed on December 24, 1814, concluded the War of 1812. Guiles v.

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U.S., 100 F.2d 47, 48 (9th Cir. 1938). The Treat of Ghent is not relevant to plaintiff’s claims.
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Third, plaintiff’s ATCA claims are barred by the statute of limitations. While the ATCA

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does not include a statute of limitations, the Ninth Circuit has adopted the ten-year statute of

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limitations provided in the Torture Victim Protection Act (“TVPA”) for ATCA claims. Deutsch

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v. Turner Corp., 324 F.3d 692, 717 (9th Cir. 2003) (“The statute of limitations under the ATCA is

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10 years.”); Papa v. United States, 281 F.3d 1004, 1012 (9th Cir. 2002) (“[W]e decide that the

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statute of limitations applicable to the ATCA is that provided by the TVPA.”). Accordingly,

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plaintiff’s claims brought pursuant to the ATCA are barred by the statute of limitations. See also

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In re African-American Slave Descendants Litigation, 304 F.Supp.2d 1027, 1069 (N.D. Ill. 2004)

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(claims seeking reparation for slavery pursuant to ATCA barred by the statute of limitations).

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The undersigned further finds that plaintiff’s claims are not timely pursuant to the continuing

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violation doctrine, equitable estoppel or equitable tolling. Id. at 1071-74.

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Fourth, plaintiff’s ATCA claim against the United States is barred based on sovereign

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immunity. “Generally, the United States enjoys sovereign immunity from suit unless it has

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specifically waived immunity.” Jeanmarie v. United States, 242 F.3d 600, 602 (5th Cir. 2001).

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In some instances the FTCA provides for a waiver of such immunity. Id. “[C]laims arising out

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of the fact of slavery, kidnapping, and other offenses to [plaintiff's] ancestors that occurred prior

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to 1945 or were not pursued within two years of their accrual, fall outside the FTCA's limited

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waiver of sovereign immunity.” Cato v. United States, 70 F.3d 1103, 1107 (9th Cir. 1995).

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Fifth, it is well settled that the United States is the only proper defendant in a FTCA suit.

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See, e.g., F.D.I.C. v. Craft, 157 F.3d 697, 706 (9th Cir. 1998) (“The FTCA is the exclusive

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remedy for tortious conduct by the United States and it only allows claims against the United

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States.”) For this reason, plaintiff cannot state claims against the other defendants pursuant to the

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FTCA.

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Because it is clear that plaintiff cannot cure the pleading defects discussed above, the
undersigned orders this action dismissed.

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

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1. Plaintiff’s request for leave to proceed in forma pauperis is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff
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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith.

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3. This action is dismissed.
Dated: May 17, 2017

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Wim858.ord

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