Mitrano v. United States of America et al

Filing 27

ORDER: re 24 Findings and Recommendations; 9 Motion to Dismiss for Failure to State a Claim and Motion to Dismiss for Lack of Jurisdiction. IT IS ORDERED:1. Defendants Motion to Dismiss (Doc. 9) is GRANTED. 2. Plaintiffs Complaint (Doc. 1) is DISMISSED for lack of subject matter jurisdiction. 3. The Clerk is directed to enter judgment accordingly. Signed by Judge Brian Morris on 2/7/2017. (ACC) Modified on 2/7/2017 to reflect copy of order mailed to Plt Mitrano(ACC).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
PETER P. MITRANO,
Plaintiff,

CV-16-13-GF-BMM

vs.
UNITED STATES OF AMERICA, and
KERI A. ADORISIO,

ORDER

Defendants.

Plaintiff Peter Mitrano (Mitrano), an attorney representing himself, filed this
action on February 22, 2016. Mitrano alleges that the Defendants violated the
Posse Comitatus Act of 1878, 18 U.S.C. § 1385, by denying him access to
Malmstrom Air Force Base because of his prior felony conviction. Mitrano
requests that the Court enjoin the Defendants from any further violations of the Act.
Mitrano also requests that the Court declare a child custody order issued by the
Lebanon Family Court in Lebanon, New Hampshire on September 27, 2002, void
as a matter of law.
Defendants have moved to dismiss Mitrano’s claims. Defendants argue that
the dismissal of this action is appropriate because: (1) this Court lacks subject

matter jurisdiction; and (2) Mitrano has failed to state a claim upon which relief
may be granted.
United States Magistrate Judge John Johnston entered Findings and
Recommendations in this matter on October 31, 2016. (Doc. 24). Judge Johnston
recommended that Mitrano’s Complaint be dismissed because this Court lacked
subject matter jurisdiction. Judge Johnston determined that the United States’
sovereign immunity precluded this court from exercising jurisdiction over
Mitrano’s claim under the Posse Comitatus Act, and Mitrano’s claim for
declaratory relief was barred by the Rooker Feldman doctrine. (Doc. 24 at 2-4).
Mitrano did not file objections to Judge Johnston’s Findings and
Recommendations.
The Court has reviewed Judge Johnston’s Findings and Recommendations
for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656
F.2d 1309, 1313 (9th Cir. 1981). The Court finds no error in Judge Johnston’s
Findings and Recommendations, and adopts them in full.
a.

Claim under the Posse Comitatus Act

Mitrano has named the United States and Keri Adorisio (Adorisio) as
Defendants in this action. Adorisio is a federal employee. Adorisio is Chief of the
Civilian Personnel Office at Malmstrom. (Doc. 1 at 3). Mitrano has sued Adorisio
-2-

based upon actions she allegedly took in her official capacity as a government
official. A suit against a federal employee for actions taken by the employee in her
official capacity, is treated as a suit against the United States. Kentucky v. Graham,
473 U.S. 159, 165 (1985).
The United States, as a sovereign, is immune from suit unless it waives its
immunity and consents to be sued. Reed ex rel. Allen v. U.S. Dep’t of Interior, 231
F.3d 501, 504 (9th Cir. 2000). The sovereign immunity of the United States
extends to federal employees sued in their official capacities. Gilbert v. DaGrossa,
756 F.2d 1455, 1458 (9th Cir. 1985). Any governmental waiver of sovereign
immunity must be unequivocal. See Franconia Assocs. v. United States, 536 U.S.
129, 141 (2002). Federal courts lack subject matter jurisdiction over a claim against
the United States absent a waiver of sovereign immunity by the United States.
United States v. Mitchell, 463 U.S. 206, 212 (1983). Neither 28 U.S.C.

§ 1331,

nor the Posse Comitatus Act waive the United States’ sovereign immunity. See
Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983); 18 U.S.C. § 1385. This
Court therefore lacks subject matter jurisdiction over Mitrano’s claim under the
Posse Comitatus Act.

-3-

a.

Claim for Declaratory Relief

Mitrano requests that this Court declare a child custody order issued by a
New Hampshire state court void as a matter of law. The Rooker-Feldman doctrine1
“prohibits a federal district court from exercising subject matter jurisdiction over a
suit that is a de facto appeal from a state court judgment.” Kougasian v. TMSL,
Inc., 359 F.3d 1136, 1139 (9th Cir. 2004). A de facto appeal exists when a federal
plaintiff seeks relief from a state court judgment based on an alleged legal error by
the state court. Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003). When “a
plaintiff brings a de facto appeal from a state court judgment, Rooker-Feldman
requires that the district court dismiss the suit for lack of subject matter
jurisdiction.” Kougasian, 359 F.3d at 1139.
Mitrano’s claim for declaratory relief constitutes a de facto appeal of the final
disposition of a New Hampshire state court. Dismissal of Mitrano’s claim for
declaratory relief is appropriate under the Rooker-Feldman doctrine.
Accordingly, IT IS ORDERED:
1.

Defendants’ Motion to Dismiss (Doc. 9) is GRANTED.

2.

Plaintiff’s Complaint (Doc. 1) is DISMISSED for lack of subject

1

The Rooker-Feldman doctrine has evolved from the two Supreme Court cases from
which its name is derived. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
-4-

matter jurisdiction.
3.

The Clerk is directed to enter judgment accordingly.

DATED this 7th day of February, 2017.

-5-