Laird v. Parry

Filing 18

ORDER: Denying Motion to Remand 6 ; Granting Motion to Dismiss 10 . The complaint is dismissed with leave to file an amended complaint within 30 days from the date of this order. Failure to amend the complaint will result in a dismissal of this case. Signed on 12/6/2017 by Magistrate Judge Jolie A. Russo. (plb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DAVID LAIRD,

6:17-cv-1029-JR
Plaintiff,
ORDER
v.

UNITED STATES,
Defendant.
Russo, Magistrate Judge:
Pro se plaintiff, David Laird, initiated this action in small claims court in Douglas
County, Oregon, against defendant, the United States. The government removed to this court on
June 30, 2017. 1 Plaintiff appears to allege two claims for relief arising out of his interaction with
Bureau of Land Management (“BLM”) concerning his mining claim in Douglas County. The
first claim concerns an alleged “unintentional trespass” by a BLM Law Enforcement Officer, and

1

On September 8, 2017, plaintiff submitted a letter to the court stating: “I withdraw my
complaint removed to this Court from Small Claims Court. It was not my intention to file in
Federal Court.” Mot. Remand (doc. 6). Out of an abundance of caution, the Court construed
plaintiff’s letter as a motion to remand. The motion to remand is denied for the reasons stated in
the government’s response. See Resp. Mot. Remand (doc. 9).
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the second claim is for an alleged theft of property by BLM Law Enforcement Officer Gregory
Filer. The government moves to dismiss on several grounds.
The threadbare allegations of the complaint fail to state a claim. Due to the complaint’s
deficiencies, the Court cannot adequately determine at this point if a claim exists for any alleged
“unintentional trespass” or theft. 2 Accordingly, plaintiff shall have 30 days to file an amended
complaint to cure the deficiencies noted below.
I. STANDARDS
A complaint must comply with the pleading requirements of the Federal Rules of Civil
Procedure. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556
U.S. 662 (2009). Fed. R. Civ. P. 8(a)(2) requires a complaint contain “a short and plain statement
of the claim showing the pleader is entitled to relief.” However,
[w]hile a complaint . . . does not need detailed factual allegations, a plaintiff's
obligation to provide the “grounds” of his “entitle[ment] to relief” requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do, see Papasan v. Allain, 478 U.S. 265, 268, 106 S.Ct. 2932, 92
L.Ed.2d 209 (1986) (on a motion to dismiss, courts “are not bound to accept as
true a legal conclusion couched as a factual allegation”). Factual allegations must
be enough to raise a right to relief above the speculative level . . . .
Bell Atlantic Corp, 550 U.S. at 555 (citations omitted). Moreover, the Supreme Court has
emphasized that, when assessing the sufficiency of any civil complaint, a court must distinguish
factual contentions-which allege behavior on the part of the defendant that, if true, would satisfy
one or more elements of the claim asserted-and “[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements.” Ashcroft, 556 U.S. at 678. In short, “a

2

As noted, the government has raised several grounds for dismissal. To the extent the
government argues that applicable regulations necessarily permitted the action complained of,
that issue is better addressed after any amendment on a developed record.

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complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that
is plausible on its face.” Id.
In determining the sufficiency of a pro se complaint, the court must be mindful to
construe it liberally in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see
also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (in assessing whether
a complaint fails to plead a claim, the court must accept all factual allegations as true); Cahhill v.
Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996) (allegations of material fact are taken
as true and construed in the light most favorable to plaintiff).
Where a complaint can be remedied by an amendment, a district court may not dismiss
the complaint with prejudice, but must permit the amendment. Denton v. Hernandez, 504 U.S.
25, 34 (1992).
II. DISCUSSION
It is important to note, “[a]bsent a waiver of sovereign immunity, the United States and
its agencies are immune from suit.” Beltran v. United States, 2015 WL 7722414, *2 (D. Or. Nov.
30, 2015) (citing F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); Loeffler v. Frank, 486 U.S. 549,
554 (1988)). However, limited waivers of sovereign immunity exist, such as in a Bivens or a
Federal Torts Claim Act (“FTCA”) action. See Carlson v. Green, 446 U.S. 14, 18 (1980)
(“Bivens established that the victims of a constitutional violation by a federal agent have a right
to recover damages against the official in federal court despite the absence of any statute
conferring such a right”); 28 U.S.C. 1346(b)(1). Plaintiff has not pleaded a specific cause of
action in his complaint, thus dismissal is required and waiver of sovereign immunity cannot be
assessed. However, an amendment to allege a Bivens or FTCA claim may remedy this
deficiency.

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A.

Bivens Action
Plaintiff cannot allege a 42 U.S.C. § 1983 claim here – as “[f]ederal officers acting under

federal authority, are immune from suit under section 1983.” See Gibson v. United States, 781
F.2d 1334, 1343 (9th Cir.1986). However, a Bivens action may seek to hold federal officers
individually liable for constitutional violations. Mendia v. Garcia, 165 F.Supp.3d 861, 880 (N.D.
Cal. 2016). Although it is “more limited in some respects,” a Bivens action is the “federal
analog” to a section 1983 action against state or local officials. Hartman v. Moore, 547 U.S. 250,
254 n.2 (2006). “Bivens does not provide a means of cutting through the sovereign immunity of
the United States itself;” rather, it “is a remedy recoverable against individuals.” Beltran, 2015
WL 7722414 at *3 (citing Carlson v. Green, 446 U.S. at 21) (internal quotes omitted).
“To establish liability under Bivens, a plaintiff must show: (1) . . . a person acting
under color of law committed the conduct at issue; and (2) . . . the conduct
deprived the plaintiff of a right, privilege, or immunity protected by the U.S.
Constitution or the laws of the United States.”
Beltran, 2015 WL 7722414 at *3 (internal citation omitted). “The factors necessary to establish a
Bivens violation will vary with the constitutional provision at issue.” Ashcroft, 556 U.S. at 676.
B.

FTCA Action
“The FTCA is the exclusive remedy for monetary damages for injuries ‘caused by the

negligent or wrongful act or omission of any employee of the government while acting within
the scope of his office or employment, under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of the place where the act or
omission occurred.’” S. Fork Livestock P’ship v. United States, 183 F.Supp.3d 1111, 1118-19
(D. Nev. 2016) (citing 28 U.S.C § 1346(b)(1) (2012)). A claim for money damages against the
United States cannot be filed until a claim has been presented to the appropriate federal agencies
and a final denial received. 28 U.S.C. § 2675(a). The agency claim must be filed within two

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years after the claim accrues or within six months after the mailing date of the notice of final
denial. 28 U.S.C. § 2401(b). An agency denial can be received either in writing or by default
after six months if no answer to the claim is received. 28 U.S.C. § 2675(a).
Under the FTCA, “claimants are entitled to compensatory damages which, under the Act,
are governed by state law.” Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 553
(9th Cir. 1984) (citing Birnbaum v. United States, 588 F.2d 319 (2d Cir.1978); Abille v. United
States, 482 F.Supp. 703, 710-11 (N.D. Cal. 1980)). It is unclear if plaintiff intended to allege a
violation of Oregon tort law, such as conversion or trespass to chattels, however, amendment
may cure this defect. Nonetheless, plaintiff must allege exhaustion, if possible.
“[A] claim shall be deemed to have been presented when a Federal agency receives from
a claimant . . . an executed Standard Form 95 or other written notification of an incident,
accompanied by a claim for money damages in a sum certain for . . . loss of property . . . alleged
to have occurred by reason of the incident.” 28 C.F.R. § 14.2 (emphasis added); see also S. Fork
Livestock P’ship, 183 F.Supp.3d at 1119; Boles v. United States, 3 F.Supp.3d 491, 504
(M.D.N.C. 2014).
The government’s submissions in support of its motion to dismiss appear to show
plaintiff filed written notifications with the BLM with a “sum certain” as to the unintentional
trespass and theft claims’ value. Decl. Kenneth Lloyd Attach. F (doc. 12-2); Depo. Diane Perry
Attach. N (doc. 13-8); Resp. Mot. Dismiss Attach. 1, 4-5 (doc. 16-1); see 28 U.S.C. § 2675(a). It
is unclear if the BLM responded with a final decision or failed to respond within six months of
the claims’ filing. See 28 U.S.C. § 2675(a). Plaintiff may amend to cure this deficiency, if
possible.

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III. CONCLUSION
The government’s Motion to Dismiss (doc. 10) is GRANTED. Plaintiff’s Motion to
Remand (doc. 6) is DENIED. The complaint is dismissed with leave to file an amended
complaint within 30 days from the date of this order if plaintiff wishes to continue this action.
Failure to amend the complaint and cure the noted deficiencies will result in a dismissal of this
case.
DATED this 6th day of December 2017.
s/Jolie A. Russo
JOLIE A. RUSSO
United States Magistrate Judge

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