Abeyta v. United States Postal Service ( 2022 )

1 WO 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 11 Danny Abeyta, No. CV-21-00331-TUC-RM 12 Plaintiff, ORDER 13 v. 14 United States Postal Service, 15 Defendant. 16 17 On September 14, 2021, the Court issued an Order dismissing Plaintiff’s 18 Complaint with leave to amend because the Complaint failed to state a basis for federal 19 jurisdiction. (Doc. 5.) On October 29, 2021, Plaintiff filed a First Amended Complaint 20 (“FAC”). (Doc. 6.) On November 10, 2021, the Court issued an Order dismissing 21 Plaintiff’s FAC with leave to amend because the FAC failed to properly state a claim 22 pursuant to the Federal Tort Claims Act (“FTCA”). (Doc. 7.) On March 1, 2022, Plaintiff 23 filed a Second Amended Complaint (“SAC”). (Doc. 8.) The Court will now dismiss the 24 SAC without leave to amend. 25 I. Statutory Screening of Complaints 26 The Prison Litigation Reform Act states that a district court “shall dismiss” an in 27 forma pauperis complaint if, at any time, the court determines that the action “is frivolous 28 or malicious” or that it “fails to state a claim on which relief may be granted.” 28 U.S.C. 1 § 1915(e)(2). “[S]ection 1915(e) applies to all in forma pauperis complaints, not just 2 those filed by prisoners.” Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc); 3 see also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam). 4 A pleading must contain a “short and plain statement of the claim showing that the 5 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 6 not demand detailed factual allegations, “it demands more than an unadorned, the- 7 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 8 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 9 conclusory statements, do not suffice.” Id. 10 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 11 claim to relief that is plausible on its face.’” Ashcroft, 556 U.S. at 678 (quoting Bell 12 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the 13 plaintiff pleads factual content that allows the court to draw the reasonable inference that 14 the defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint 15 states a plausible claim for relief [is] . . . a context-specific task that requires the 16 reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, 17 although a plaintiff’s specific factual allegations may be consistent with a constitutional 18 claim, a court must assess whether there are other “more likely explanations” for a 19 defendant’s conduct. Id. at 681. 20 As the United States Court of Appeals for the Ninth Circuit has instructed, courts 21 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 22 (9th Cir. 2010). A complaint filed by a pro se litigant “must be held to less stringent 23 standards than formal pleadings drafted by lawyers.” Id. (internal quotation omitted). If 24 the Court determines that a pleading could be cured by the allegation of other facts, a pro 25 se litigant is entitled to an opportunity to amend a complaint before dismissal of the 26 action. See Lopez, 203 F.3d at 1127-29. 27 . . . . 28 . . . . 1 II. Plaintiff’s Second Amended Complaint 2 In his one-count SAC, Plaintiff sues the United States Postal Service, alleging that 3 he was injured at the United States Post Office in Safford, Arizona when a broken door 4 hit his hand. (Doc. 8 at 6.) As a result of his injuries, he is seeking $25,000 in damages. 5 (Id. at 6-7.) Plaintiff alleges federal question jurisdiction pursuant to the FTCA, 28 6 U.S.C. §§ 2671-2680. (Id. at 3.) 7 As the Court previously stated in its Order dismissing Plaintiff’s FAC (Doc. 7), 8 the United States is the only proper defendant in an action brought pursuant to the FTCA. 9 28 U.S.C. §§ 1346(b)(1), 2679(a)-(b); Allen v. Veterans Admin., 749 F.2d 1386, 1388 10 (9th Cir. 1984). “Individual agencies of the United States may not be sued.” Allen, 749 11 F.2d at 1388. Thus, because Plaintiff has not sued the United States, the Court will 12 dismiss the SAC. 13 “Leave to amend need not be given if a complaint, as amended, is subject to 14 dismissal.” Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989). 15 The Court’s discretion to deny leave to amend is particularly broad where Plaintiff has 16 previously been permitted to amend his complaint. Sisseton-Wahpeton Sioux Tribe v. 17 United States, 90 F.3d 351, 355 (9th Cir. 1996). Repeated failure to cure deficiencies is 18 one of the factors to be considered in deciding whether justice requires granting leave to 19 amend. Moore, 885 F.2d at 538. 20 Plaintiff has made three efforts at crafting a viable complaint and appears unable 21 to do so despite specific instructions from the Court. Specifically, Plaintiff failed to 22 address or correct the exact error that was the basis for dismissal of his FAC. Therefore, 23 the Court finds that further opportunities to amend would be futile and, in its discretion, 24 will dismiss Plaintiff’s SAC without leave to amend. 25 Accordingly, 26 IT IS ORDERED that the Second Amended Complaint (Doc. 8) is dismissed 27 without leave to amend for failure to state a claim. 28 1 IT IS FURTHER ORDERED that the above-captioned action is dismissed 2|| without prejudice. The Clerk of Court shall enter judgment accordingly and close this || case. 4 Dated this 17th day of March, 2022. 5 6 1 a th by) 8 WNGUE Honorable Rostsiary □□□□□□□ 9 United States District □□□□□ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-