Morales v. United States

Filing 10

ORDER Dismissing Action without Prejudice; Denying 8 Motion for Leave to Proceed in forma pauperis; Denying 9 Motion to Appoint Counsel. Signed by Judge Roger T. Benitez on 5/23/2011. (All non-registered users served via U.S. Mail Service)(knh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JONATHAN MORALES,

Case No10cv2013 BEN (CAB)

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Plaintiff,

ORDER DISMISSING ACTION
WITHOUT PREJUDICE

vs.
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[Dkt. Nos. 8, 9]

UNITED STATES OF AMERICA,
Defendant.

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Plaintiff Jonathan Morales commenced this action against Defendant United States of

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America.1 Instead of paying the $350.00 filing fee, Morales moved to proceed in forma pauperis

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(“IFP”). (Dkt. No. 2.) He also moved for appointment of counsel. (Dkt. No. 3.) The Court found that

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Plaintiff failed to state a claim and dismissed his Complaint with leave to file an amended complaint.

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(Dkt. No. 5.) Plaintiff has filed a First Amended Complaint (“FAC”), a motion for leave to proceed

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IFP, and a motion to appoint counsel. (Dkt. Nos. 7-9.) Because Morales has failed to state a claim

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upon which relief may be granted the action is sua sponte dismissed and the motions are DENIED.

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The Court previously dismissed Plaintiff’s Complaint in Case No. 10cv1675 BEN (CAB) for
failing to state a claim.
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10cv2013

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DISCUSSION
I.

Sua Sponte Dismissal

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When a party is proceeding IFP, “the court shall dismiss the case at any time if . . . the action

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. . . is frivolous [or] fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B);

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Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001); see also O’Loughlin v. Doe, 920 F.2d 614, 616

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(9th Cir. 1990) (finding a “district court may deny leave to proceed in forma pauperis at the outset if

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it appears from the face of the proposed complaint that the action is frivolous.”).

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Here, the FAC states that the United States failed to return his property — backpack and jacket

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— to him when he was released from jail. (Dkt. No. 7.) Plaintiff claims he made arrangements for

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his property to be held, but when he was released from jail, he did not receive his property. Plaintiff

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asserts that he is stating a claim under the Federal Tort Claims Act (“FTCA”) and is seeking $459.00

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in reimbursement for the value of the property. (Id.) He alleges that he submitted an administrative

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claim on January 14, 2009. Plaintiff also attaches the certified letter from U.S. Customs and Border

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Protection, dated April 1, 2009, denying his claim.

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“Unless Congress enacts legislation that subjects the federal government to tort liability, the

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United States, as sovereign, cannot be sued.” Marley v. United States, 567 F.3d 1030, 1034 (9th Cir.

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2009). The FTCA is a limited waiver of this immunity. Id. When there are conditions to that waiver,

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such as deadlines for filing, “those conditions must be ‘strictly observed.’” Id. And while there are

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instances where equitable doctrines may toll a statute of limitations, those doctrines cannot be applied

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when the limitations are jurisdictional. Id. at 1034.

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“A tort claim against the United States must first be presented in writing to the appropriate

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federal agency within two years of its accrual, and suit must be brought within six months of denial

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of the claim by the agency to which it was presented.” Bartleson v. United States, 96 F.3d 1270, 1276

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(9th Cir. 1996) (emphasis added) (citing 28 U.S.C. § 2401); Lehman v. United States, 154 F.3d 1010,

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1013 (9th Cir. 1998). This six-month limitation “in § 2401(b) is jurisdictional and . . . failure to file

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a claim within that time period deprives the federal courts of jurisdiction.” Marley v. United States,

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567 F.3d 1030, 1038 (9th Cir. 2009).

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10cv2013

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Plaintiff’s denial letter was dated April 1, 2009. He had until October 1, 2009 to file suit in

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district court. The denial letter itself advises Plaintiff “[i]f you wish to contest this decision, you must

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file a lawsuit in the appropriate United States federal district court no later than six months after the

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mailing date of this letter.” (FAC, Ex. B.) Plaintiff filed his initial claim, in this Court, in Case No.

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10cv1675 BEN (CAB) on August 10, 2010, more than ten months late. Plaintiff’s action is untimely.

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Plaintiff claims in his FAC that his “[d]elay in filing was caused by filing against the wrong

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party in small claims and my initial complaint was dismissed.” Plaintiff’s mistake in filing does not

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save him from the six-month requirement of § 2401(b). “[B]ecause § 2401(b) is jurisdictional, [the

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Court] must refrain from using . . . equitable tolling to excuse Plaintiff’s untimeliness.” Id. at 1037.

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To do otherwise “would impinge on Congress’ role as regulator of the jurisdiction of the federal

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courts.” Id. In short, Plaintiff did not file suit within the six-month limitations period and his delay

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cannot be excused. Accordingly, Plaintiff’s FAC is DISMISSED without prejudice. Having

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dismissed the FAC, Plaintiff’s motions to proceed IFP and for appointment of counsel are moot.

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CONCLUSION
The Court sua sponte dismisses the FAC without prejudice and DENIES the motion to proceed
IFP and request for appointment of counsel.

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IT IS SO ORDERED.

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DATED: May 23, 2011

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Hon. Roger T. Benitez
United States District Judge

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10cv2013