Baity v. United States Postal Service et al

Filing 3

ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Keith M. Baity, Motions terminated: 1 MOTION for Leave to Proceed in forma pauperis filed by Keith M. Baity., FINDINGS AND RECOMMENDATIONS re 2 Complaint filed by Keith M. Baity. () Signed by Magistrate Judge Jeremiah C. Lynch on 1/22/2018. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

KEITH M. BAITY,
CV 17-175-M-DLC-JCL
Plaintiff,
vs.

ORDER, and FINDINGS AND
RECOMMENDATION

UNITED STATES POSTAL
SERVICE, UNITED STATES
JUSTICE DEPARTMENT, and
UNITED STATES MARSHALS
SERVICE,
Defendants.
I.

Introduction
Plaintiff Keith Baity, appearing pro se, filed a Motion to Proceed In Forma

Pauperis. Baity submitted a declaration that makes the showing required by 28
U.S.C. § 1915(a). Because it appears he lacks sufficient funds to prosecute this
action IT IS HEREBY ORDERED that Baity’s Motion to Proceed In Forma
Pauperis is GRANTED. This action may proceed without prepayment of the filing
fee, and the Clerk of Court is directed to file Baity’s lodged Complaint as of the
filing date of his request to proceed in forma pauperis.

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The federal statute under which leave to proceed in forma pauperis is
permitted — 28 U.S.C. § 1915 — also requires the Court to conduct a preliminary
screening of the allegations set forth in the litigant’s pleading. The applicable
provisions of section 1915(e)(2) state as follows:
(2) Notwithstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court determines
that–
(A) the allegation of poverty is untrue; or
(B) the action or appeal–
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.
28 U.S.C. § 1915(e)(2).
The Court will review Baity’s pleading to consider whether this action can
survive dismissal under the provisions of section 1915(e)(2), or any other provision
of law. See Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138, 1142 (9th Cir. 2005).
II.

Background
Baity commenced this action to challenge Defendants’ alleged conduct in

interfering with his business advertising practices. Baity is self-employed as a
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grout and tile restoration specialist. He advertises his business by what he refers to
as “home delivered advertising” which apparently involves placing printed
advertisement publications in or on residential mailboxes. Defendant United States
Postal Service (“USPS”) has engaged in various acts apparently seeking to prevent
Baity from placing his advertisements in mailboxes. Baity alleges the USPS is
liable to him for its conduct which he alleges has interfered with his business,
livelihood, and income.
Baity alleges the United States Department of Justice, though one of its
Assistant United States Attorneys, brought “procedural actions” against him for his
conduct in seeking to prevent the USPS from interfering with his business
advertising practices. And he alleges the referenced Assistant United States
Attorney colluded with two United States Marshal Deputies and arranged for the
Deputies to visit Baity at his house, during the dinner hour, on September 29,
2016. Therefore, he alleges the United States Department of Justice and the United
States Marshals’ Service are liable to him for their various actions squelching his
attempts to convince the USPS to cease its interference with his advertising
practices.
Baity alleges all Defendants are liable under various federal laws. And he
asserts he is entitled to recover compensatory and punitive damages from
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Defendants.
III.

Discussion
Because Baity is proceeding pro se the Court must construe his pleading

liberally, and the pleading, “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers[.]” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citation omitted). See also Neitzke v. Williams,
490 U.S. 319, 330 n.9 (1989). Nonetheless, pro se litigants are “bound by the rules
of procedure.” Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).
A.

Res Judicata

In 2016 Baity commenced a civil action in state district court against the
USPS presenting the exact same factual allegations against the USPS as he asserts
in this case. The USPS removed that prior case to this Court in Baity v. USPS,
Cause No. CV 16-103-M-DLC (hereinafter referred to as “Baity I”). In Baity I
Baity explained that he distributed private business advertisement flyers by leaving
them at private homes and on residential mailboxes. USPS employees removed his
flyers from the mailboxes and, therefore, Baity alleged the USPS unlawfully
interfered with his lawful business activities in violation of his rights.
The USPS moved to dismiss Baity’s claims in Baity I for lack of jurisdiction
and for failure to state a claim upon which relief could be granted under Fed. R.
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Civ. P. 12(b)(1) & (6). By Order entered January 12, 2017, the Court granted the
USPS’s motion to dismiss and entered Judgment in favor of the USPS. Therefore,
for the reasons discussed, the Court finds Baity’s claims advanced in this action
against the USPS are barred under the doctrine of res judicata.
Although a federal court must be cautious in raising a preclusion bar sua
sponte, it is appropriate to do so in special circumstances. Arizona v. California,
530 U.S. 392, 412 (2000).
[I]f a court is on notice that it has previously decided the issue presented, the
court may dismiss the action sua sponte, even though the defense has not
been raised. This result is fully consistent with the policies underlying res
judicata: it is not based solely on the defendant's interest in avoiding the
burdens of twice defending a suit, but is also based on the avoidance of
unnecessary judicial waste.
Arizona, at 412 (quoting United States v. Sioux Nation, 448 U.S. 371, 432 (1980)
(Rehnquist, J., dissenting)). “As a general matter, a court may, sua sponte, dismiss
a case on preclusion grounds ‘where the records of that court show that a previous
action covering the same subject matter and parties had been dismissed.’”
Headwaters, Inc. v. United States Forest Service, 399 F.3d 1047, 1054-55 (9th Cir.
2005) (quoting Evarts v. W. Metal Finishing Co., 253 F.2d 637, 639 n.1 (9th Cir.
1958)). Thus, where judicial resources have previously been spent on the
resolution of a particular prior case, special circumstances can be found warranting
the court’s sua sponte application of res judicata to a plaintiff’s subsequent attempt
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to relitigate the same case. Cf. Arizona, at 412-413, and Headwaters, Inc. at 105657.
This Court has notice of the facts and circumstances of Baity’s allegations in
Baity I and the proceedings in that case. This Court expended judicial resources
addressing the merits of Baity’s federal claims previously pled against the USPS,
and dismissed those claims. Baity now seeks to sue the USPS again in this action
for the same actions and conduct that the Court addressed in Baity I. It would be a
waste of judicial resources to again adjudicate claims stemming from the same
predicate facts as were presented in Baity I. Therefore, the Court finds it is
appropriate to raise the doctrine of res judicata sua sponte.
Res judicata, or claim preclusion, provides that “a final judgment on the
merits of an action precludes the parties or their privies from relitigating issues that
were or could have been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94
(1980). Res judicata is applicable when (1) the prior litigation and the present
action involve the same claims, or when the two cases have an “identity of claims;”
(2) a final judgment on the merits was entered in the prior litigation; and (3) there
exists privity between the parties in the two cases. Headwaters, Inc. v. United
States Forest Service, 399 F.3d 1047, 1052 (9th Cir. 2005) (citations omitted).

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In assessing whether two litigation matters involve the same claims, a court
must consider:
(1) whether rights or interests established in the prior judgment would be
destroyed or impaired by prosecution of the second action; (2) whether
substantially the same evidence is presented in the two actions; (3) whether
the two suits involve infringement of the same right; and (4) whether the two
suits arise out of the same transactional nucleus of facts. The last of these
criteria is the most important.
Headwaters, Inc., 399 F.3d at 1052.
All of the elements of res judicata and the identified factors for consideration
are satisfied in this case. Baity again seeks to brings legal claims predicated upon
the same conduct of the USPS that he challenged in Baity I. Each case arose out of
the same nucleus of operative facts, and in each case Baity asserted he has a right
to place his private business advertisements in mailboxes and that the USPS has
unlawfully interfered with his right to do so. A judgment was entered in Baity I
dismissing Baity’s federal claims against the USPS, and Baity did not appeal that
judgment which renders the judgment final. The USPS is entitled to rely upon the
finality of the judgment in Baity I, and that finality would be impaired by this
relitigation of the same matter. Therefore, Baity’s federal claims against the USPS
advanced in this case are barred by the doctrine of res judicata, and should be
dismissed.

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B.

United States Department of Justice and United States Marshals Service

Baity asserts that the United States Department of Justice, through one of its
Assistant United States Attorneys, Megan Dishong, violated federal law by her
conduct in representing and defending the USPS in the litigation in Baity I. He
contends Dishong used the legal system in Baity I to stop him from advertising for
his business, and that she failed to investigate the conduct of the USPS in allegedly
interfering with his business activities. He also complains that in September, 2016,
Dishong, through an alleged abuse of her power, dispatched two Deputy United
States Marshals to his residence to intimidate him.
Baity next alleges the United States Marshals Service is liable to him for the
conduct of the two Deputy Marshals who went to his residence in September,
2016. He complains the Deputies unlawfully provided evidence to Dishong which
he believes was used against him in Baity I. He also complains the two Deputies
failed to investigate claims against federal agencies.
Baity’s factual allegations seek to impose liability against the United States
Department of Justice and the United States Marshals Service based on the conduct
of those agencies’ employees. He names only those two agencies as Defendants in
this action, and he does not name the individual agents or employees as
Defendants. But for the reasons discussed, the United States and its agencies enjoy
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sovereign immunity from liability absent an expressly stated exception to the
immunity.
The doctrine of sovereign immunity “shields the United States from suit
absent a consent to be sued[, or waiver of sovereign immunity,] that is
‘unequivocally expressed[]’” in the text of a federal statute. United States v.
Bormes, 568 U.S. 6, 9-10 (2012) (quoting United States v. Nordic Village, Inc.,
503 U.S. 30, 33-34 (1992)). The immunity extends to the agencies of the United
States. Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 475 (1994).
“It is axiomatic that the United States may not be sued without its consent
and that the existence of consent is a prerequisite for jurisdiction.” Jachetta v.
United States, 653 F.3d 898, 903 (9th Cir. 2011) (quoting United States v. Mitchell,
463 U.S. 206, 212 (1983)). A court’s jurisdiction over any suit against the United
States may be based only upon “a clear statement from the United States waiving
sovereign immunity, together with a claim falling within the terms of the waiver.”
Jachetta, 653 F.3d at 903 (quoting United States v. White Mountain Apache Tribe,
537 U.S. 465, 472 (2003)).
The party asserting a claim against the United States bears the burden of
identifying an unequivocal waiver of immunity. United States v. Park Place
Associates Ltd., 563 F.3d 907, 924 (9th Cir. 2009).
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In Baity’s claims against the United States Department of Justice and the
United States Marshals Service he cite to several statutes as follows: 15 U.S.C. §§
4, 15, 35, 45, and 1125(a)(1)(A)(2); 18 U.S.C. §§ 242, 1001(a)(1-3), 1341, 1346,
1961, 1962(c) & (d), 1963, and 1964(c); 42 U.S.C. §§ 1983 & 1985; and 25 C.F.R.
§ 11.4448(a) & (b). 1 But the Court finds that none of the cited statutes contain a
waiver of the United States’ immunity, or the immunity of its agencies.
Therefore, the Court finds the United States Department of Justice and the United
States Marshals Service enjoy sovereign immunity from civil liability for the
federal claims identified by Baity, and the claims must be dismissed.
IV.

Conclusion

Based on the foregoing, IT IS HEREBY RECOMMENDED that Baity’s
claims against the USPS be DISMISSED as barred by the doctrine of res judicata,
and that Baity’s claims against the United States Department of Justice and the
United States Marshals Service be DISMISSED as barred by sovereign immunity
and the Court’s resulting lack of jurisidiction.
Ordinarily, “[d]ismissal of a pro se complaint without leave to amend is
proper only if it is absolutely clear that the deficiencies of the complaint could not

1

The Court finds there does not exist a regulation identified as 25 C.F.R. §
11.4448.
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be cured by amendment.” Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007)
(quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988)). A court
may dismiss a pro se action without leave to amend if the court finds that any
attempted amendment would be futile. Rouse v. United States Department of
State, 567 F.3d 408, 418-19 (9th Cir. 2009).
Under the circumstances of the facts pled by Baity the Court finds it is clear
that the application of the doctrines of res judicata and sovereign immunity could
not be avoided by an amendment of Baity’s pleading. Therefore, the Court
recommends this action be dismissed without leave to amend.
DATED this 22nd day of January, 2018.

______________________________
Jeremiah C. Lynch
United States Magistrate Judge

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