Contreras v. Vasquez et al

Filing 6

ORDER granting Plaintiff's 2 Motion for Leave to Proceed In Forma Pauperis. Court sua sponte dismisses Pla's Complaint w/ prejudice and w/o leave to amend. Signed by Judge Irma E. Gonzalez on 12/2/2009. Case is closed. (All non-registered users served via U.S. Mail Service)(jah) (av1).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1vs. Omar Vasquez; USCG Sector San Diego, Defendants. Rocky Mel Contreras, Plaintiff, CASE NO. 09-CV-2359-IEG (CAB) ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; (2) SUA SPONTE SCREENING THE COMPLAINT AND DISMISSING WITH PREJUDICE

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

On October 22, 2009, Plaintiff filed this action pursuant to 42 U.S.C. § 1983. Plaintiff also filed a motion and a motion to proceed in forma pauperis. As explained below, the Court has previously found Plaintiff's claims against the Defendants, the U.S. Coast Guard and Omar Vasquez in his official capacity, are barred by the doctrine of sovereign immunity and fail to state a claim upon which relief can be granted. Therefore, although the Court GRANTS Plaintiff's motion to proceed in forma pauperis, it DISMISSES Plaintiff's complaint with prejudice. I. Motion to Proceed In Forma Pauperis

Plaintiff is unemployed and has less than $100 in his bank account. [Doc. No. 2.] Thus, Plaintiff is entitled to proceed without paying the required filing fees. See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The Court GRANTS Plaintiff's motion to proceed in forma pauperis .

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II.

Sua Sponte Screening of the Complaint

Although the Court will allow Plaintiff to proceed in forma pauperis, the Court dismisses

3 Plaintiff's complaint for lack of subject mater jurisdiction and for failure to state a claim. 4 5 A. Subject matter jurisdiction

"Absent a waiver, sovereign immunity shields the Federal Government and its agencies

6 from suit." FDIC v. Meyer, 510 U.S. 471, 475 (1994). "Any waiver of immunity must be 7 `unequivocally expressed,' and any limitations and conditions upon the waiver `must be strictly 8 observed and exceptions thereto are not to be implied.'" Hodge v. Dalton, 107 F.3d 705, 707 (9th 9 Cir. 1997) (quoting Lehman v. Nakshian, 453 U.S. 156, 160-61 (1981)). The doctrine of sovereign 10 immunity extends equally to federal agencies and federal employees acting within their official 11 capacities. Id. 12 Although the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., waives the

13 United States' immunity, it does so only with regard to certain common law torts. See 28 U.S.C. 14 §§ 1346(b)(1), 2679(b). Notably, "the United States simply has not rendered itself liable under 15 § 1346(b) for constitutional tort claims," FDIC, 510 U.S. at 478, which is what Plaintiff alleges in 16 this case. 17 Plaintiff alleges that Defendants violated his due process rights under the Fifth Amendment

18 as well as his right to present a defense and confront witnesses under the Sixth Amendment. [Doc. 19 No. 1]. However, Plaintiff has not cited to any authority from which a waiver of immunity may be 20 found with respect to his constitutional claims. Compare FDIC, 510 U.S. at 483 (holding "that 21 [Federal Savings and Loan Insurance Corporation's] sue-and-be-sued clause waive[d] the agency's 22 sovereign immunity for [plaintiff's] constitutional tort claim"). The Court therefore lacks subject 23 matter jurisdiction over Plaintiff's claims against the U.S. Coast Guard and Omar Vasquez in his 24 official capacity. See McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1998) ("The question 25 whether the United States has waived its sovereign immunity against suits for damages is, in the 26 first instance, a question of subject matter jurisdiction."). 27 /// 28 /// -2-

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B.

Failure to state a claim

Moreover, the Court is under a continuing duty to dismiss an in forma pauperis case "any

3 time" the Court determines that the action "fails to state a claim on which relief may be granted." 4 28 U.S.C. § 1915(e)(2)(B)(ii). In the present case, on the facts alleged, the Court finds that there is 5 no claim that Plaintiff can state against the U.S. Coast Guard or Omar Vasquez in his official 6 capacity. Even if the Court construes Plaintiff's § 1983 action as a claim under Bivens v. Six 7 Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), that cause of action 8 is not available against a federal agency or a federal official acting in his official capacity. See 9 FDIC, 510 U.S. at 485-86. In addition, to the extent Plaintiff wishes to pursue any claims against 10 Omar Vasquez in his individual capacity, such claims are duplicative of those Plaintiff has asserted 11 against Vasquez in Case No. 09cv1267-IEG(CAB). 12 13 III. Conclusion

For the foregoing reasons, the Court GRANTS Plaintiff leave to proceed in forma pauperis

14 but sua sponte DISMISSES Plaintiff's complaint with prejudice and without leave to amend. The 15 Clerk is directed to close this case. 16 17 18 DATED: December 2, 2009 19 20 21 22 23 24 25 26 27 28 -3IRMA E. GONZALEZ, Chief Judge United States District Court IT IS SO ORDERED.

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