Cottonham v. United States Embassy, Bangkok Thailand

Filing 13

ORDER of Dismissal. Signed by Judge Edward M. Chen on 11/9/2011. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 11/9/2011)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

MARK ADAM COTTONHAM,

9

11
For the Northern District of California

United States District Court

10

No. C-11-3131 EMC (pr)

Plaintiff,
v.

ORDER OF DISMISSAL

UNITED STATES EMBASSY,
BANGKOK, THAILAND,

12
13

Defendant.
___________________________________/

14
15
16

I.

INTRODUCTION

Mark Adam Cottonham, an inmate at the Santa Rita Jail in Alameda County, filed this pro se

17

civil action using the Court’s form complaint for a civil rights action under 42 U.S.C.

18

§ 1983. His complaint is now before the Court for review under 28 U.S.C. § 1915A.

19
20

II.

BACKGROUND

Cottonham alleges in his complaint that when he went to the U.S. Embassy in Bangkok,

21

Thailand, on March 7, 2011 to obtain more pages for his passport, his passport was taken from him

22

without explanation. He further alleges that he was arrested by Thai police, charged with a “3 day

23

over stay and having no passport,” and incarcerated in an unpleasant Thai jail for eight days.

24

Complaint, p. 3.

25
26
27
28

III.

DISCUSSION

A federal court must engage in a preliminary screening of any case in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

1

§ 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims

2

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

3

monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b)(1),(2). Pro

4

se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

5

(9th Cir. 1990).

6

Cottonham used the Court’s form for a civil rights action under 42 U.S.C. § 1983, but his

7

claim plainly is not one under § 1983 because he does not allege that a “person acting under color of

8

state law” deprived him of a right secured by the Constitution or laws of the United States. See West

9

v. Atkins, 487 U.S. 42, 48 (1988). Instead, his claim is a tort claim against the United States (acting

11
For the Northern District of California

United States District Court

10

through its agency, the United States Embassy) and governed by the Federal Tort Claims Act.
In 1946, Congress passed the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680

12

(“FTCA”), which waived the sovereign immunity of the United States for certain torts committed by

13

federal employees acting within the scope of their employment. See FDIC v. Meyer, 510 U.S. 471,

14

475-76 (1994). The FTCA provides that district courts have exclusive jurisdiction of civil actions

15

against the United States for money damages “for injury or loss of property, or personal injury or

16

death caused by the negligent or wrongful act or omission of any employee” of the federal

17

government while acting within the scope of his office or employment. 28 U.S.C. § 1346(b)(1).

18

The FTCA has several exceptions to that waiver of sovereign immunity, one of which applies here.

19

Specifically, the FTCA waiver of immunity does not apply to acts or omissions of the United States

20

“arising in a foreign country.” 28 U.S.C. § 2680(k). This exception applies even if “the tort occurs

21

in a foreign area under United States control.” Nurse v. United States, 226 F.3d 996, 1003 (9th Cir.

22

2000). The foreign country exception “bars all claims based on any injury suffered in a foreign

23

country, regardless of where the tortious act or omission occurred.” Sosa v. Alvarez-Machain, 542

24

U.S. 692, 712 (2004).

25

Cottonham cannot pursue a claim for the alleged wrongful confiscation of his passport by the

26

U.S. Embassy in Bangkok because his claim is for an act or omission of the United States (though its

27

agency, the U.S. Embassy) arising in a foreign country. The United States has not waived sovereign

28

immunity for such a claim. Accordingly, this action must be dismissed because the Defendant has

2

1

immunity against Plaintiff’s complaint. Leave to amend will not be granted because it would be

2

futile: Cottonham could not plead around the sovereign immunity bar to his claim.

3
4
5

IV.

CONCLUSION

The complaint is DISMISSED with prejudice because the United States has immunity
against Plaintiff’s complaint. The Clerk shall close the file.

6
7

IT IS SO ORDERED.

8
9

Dated: November 9, 2011
_________________________
EDWARD M. CHEN
United States District Judge

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3