Navarro v. Post Master General and CEO et al

Filing 6

ORDER Accepting Magistrate Judge Nancy J. Koppe's 4 Report and Recommendation. This action is Dismissed. The Clerk of Court shall enter judgment accordingly. Signed by Judge Jennifer A. Dorsey on 11/19/2013. (Copies have been distributed pursuant to the NEF - SLD)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
9

Jim Navarro,

10
11
12

Case No.: 2:13-cv-00835 -JAD-NJK

Plaintiff

Order Adopting Report and
Recommendation [Doc. 4] and
Dismissing Complaint [Doc. 3]

v.
Post Master General and CEO et al.,

13

Defendants

14
15

Before the Court is Plaintiff Jim Navarro’s 1983 civil rights action against employees of the

16

United States Postal Service. Doc. 1-1; Doc 3. The Magistrate Judge in this case granted leave to

17

proceed in forma pauperis and dismissed the Complaint for failure to state a claim upon which relief

18

can be granted, with leave to amend, in her Order dated June 12, 2013. Doc. 2. Plaintiff filed a

19

handwritten Amended Complaint on the same day, which is identical in form and content to his earlier

20

handwritten Complaint.1 See Doc 1-1; Doc. 3. On July 18, 2013, the Magistrate Judge entered a Report

21

and Recommendation that recommended dismissing the case without prejudice. Doc. 4. Plaintiff has

22

not objected to the Report and Recommendation.

23

When no timely objections are filed to a magistrate’s report and recommendation on a

24

dispositive matter, district courts may at their discretion determine the standard of review they apply.

25
26

1

27

The Court is mindful that federal courts must “liberally construe the ‘inartful pleading’ of pro
se litigants” like the plaintiff in the instant case. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987)
(quoting Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)).

28

1

1

See also Thomas v. Arn, 474 U.S. 140, 150 (1985) (writing that Congress never “intended to require

2

district court review of a magistrate’s factual or legal conclusions, under a de novo or any other

3

standard, when neither party objects to those findings.” ); see also United States v. Reyna-Tapia, 328

4

F.3d 1114, 1121 (9th Cir. 2003) (citation omitted) (concluding that “[t]he statute makes it clear that the

5

district judge must review the magistrate judge’s findings and recommendations de novo if objection

6

is made, but not otherwise.”). The Court reviews the Report and Recommendation for clear error as

7

to fact and for conclusions of law that are clearly erroneous.

8

I.

9

Discussion

10

Once in forma pauperis status is granted, federal courts must screen such matters to dismiss

11

complaints that (1) are frivolous or malicious, (2) fail to state a claim upon which relief can be granted,

12

or (3) seek monetary relief from immune defendants. See 28 U.S.C. § 1915(e)(2); see also Denton v.

13

Hernandez, 504 U.S. 25, 31 (1992). A pro se litigant may amend his complaint with “some notice” of

14

the complaint’s shortcoming “unless it is absolutely clear that the deficiencies of the complaint could

15

not be cured by amendment.” Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (citing Noll v.

16

Carlson, 809 F,2d 1146, 1148 (9th Cir. 1987)).

17

A frivolous complaint “lacks an arguable basis either in law or in fact.” Denton, 504 U.S. at 31

18

(citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)). The in forma pauperis statute goes beyond

19

Federal Rule of Civil Procedure 12(b)(6) because it “accords judges not only the authority to dismiss

20

a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of

21

the complaint’s factual allegations and dismiss those claims whose factual contentions are clearly

22

baseless.” See id. (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).

23

Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim

24

showing that the pleader is entitled to relief.” The purpose is to afford defendants fair notice “of what

25

the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

26

(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (internal quotation marks omitted).

27

Defending a complaint against Rule 12(b)(6) concerns “requires more than labels and conclusions”; it

28

2

1

calls on plaintiffs to plead factual allegations that are “enough to raise a right to relief above the

2

speculative level.” Id. (quoting 5 Charles Allen Wright & Arthur R. Miller, Federal Practice and

3

Procedure § 1216 (3d ed. 2004)) (internal quotation marks omitted) (citing Papasan v. Allain, 478 U.S.

4

265, 286 (1986)). This requires a plaintiff to state claims raising a plausible likelihood that the

5

defendant engaged in misconduct for which the law—and courts—can offer relief.

6

A plaintiff must state his claim with enough facts, which the court will take as true and construe

7

in the light most favorable to him, to be plausible on its face. See id. at 556, 570 (requiring complaints

8

to raise a reasonable expectation that discovery will yield evidence of legal violations); see also

9

Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir. 2001). Pleading facts “merely consistent

10

with a defendant’s liability” may suggest possible legal liability. Ashcroft v. Iqbal, 556 U.S. 662, 678

11

(2009) (quoting Twombly, 550 U.S. at 557). It does not rise to the requisite level of plausibility. Id.

12

Bare and unsubstantiated allegations will not suffice; there must be some substance on which courts

13

might find defendants violating the law and thereby grant a legal or equitable remedy. Further, courts

14

need not accept merely conclusory claims, unwarranted factual deductions, or unreasonable inferences.

15

Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (citing Clegg v. Cult Awareness Network, 18 F.3d

16

752, 754–55 (9th Cir. 19984)).

17

Courts “freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2); see also

18

Sonoma Cnty. Ass’n of Retired Emps. v. Sonoma Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013) (citing Fed.

19

R. Civ. P. 15(a); Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001)) (writing

20

that “[i]n general, a court should liberally allow a party to amend its pleading.”). The tendency of

21

federal courts is to permit new chances: the Ninth Circuit states that “[t]his policy is to be applied with

22

extreme liberality.” C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 985 (9th Cir.

23

2011) (quoting Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003)) (internal

24

quotation marks omitted).

25

circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an

26

opportunity to test his claim on the merits.” Forman v. Davis, 371 U.S. 178, 182 (1962).

27
28

The Supreme Court also affirms that “[i]f the underlying facts or

In the instant case, Plaintiff’s second Complaint is identical to his first Complaint and, like the
3

1

first Complaint, it fails to state a claim upon which relief could be granted. Even if the Court construes

2

Plaintiff’s allegations as a Bivens civil rights action against government officials acting under color of

3

federal authority, Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

4

(1971), rather than as a 42 U.S.C. § 1983 action against state officials, his case cannot survive.

5

II.

6

Conclusion

7

Accordingly, and with good cause appearing:

8

It is hereby ORDERED that the Magistrate Judge’s Report and Recommendation [Doc. 4] is

9

ACCEPTED.

10

It is further ORDERED that this action is DISMISSED.

11

The Clerk of Court shall enter judgment accordingly.

12

DATED November 19, 2013.

13
14
15

_________________________________
JENNIFER A. DORSEY
UNITED STATES DISTRICT JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28

4