(PS) Pereira v. United States ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NYASIA PEREIRA, No. 2:22–cv–0073–KJM–KJN PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS TO DISMISS 14 UNITED STATES OF AMERICA, (ECF No. 9) 15 Defendant. 16 17 Plaintiff is proceeding in this action without counsel and in forma pauperis (“IFP”).1 18 (ECF Nos. 5, 6.) The court found plaintiff’s initial and amended complaints unsuitable for 19 service and granted plaintiff a final opportunity to amend the complaint to state a claim. (ECF 20 Nos. 3, 6.) Plaintiff’s Second Amended Complaint (“SAC”) is now before the undersigned for 21 re-screening under 28 U.S.C. § 1915(e). (ECF No. 9.) Because the SAC does not cure the 22 previously identified defects and plaintiff has had multiple opportunities to amend, the 23 undersigned now recommends dismissing this case without leave to amend. 24 Legal Standards 25 Under the IFP statute, the court must screen the complaint and dismiss any claims that are 26 “frivolous or malicious,” fail to state a claim on which relief may be granted, or seek monetary 27 1 Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to 28 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72. 1 relief against an immune defendant. 28 U.S.C. § 1915(e)(2). Further, the federal court has an 2 independent duty to ensure it has subject matter jurisdiction in the case. See United Investors 3 Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004). 4 Rule 8(a) of the Federal Rules of Civil Procedure requires that a pleading be “(1) a short 5 and plain statement of the grounds for the court’s jurisdiction . . . ; (2) a short and plain statement 6 of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, 7 which may include relief in the alternative or different types of relief.” Each allegation must be 8 simple, concise, and direct. Fed. R. Civ. P. 8(d)(1). 9 A complaint fails to state a claim if it either lacks a cognizable legal theory or sufficient 10 facts to allege a cognizable legal theory. Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 11 2015). To avoid dismissal for failure to state a claim, a complaint must contain more than “naked 12 assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of 13 action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, 14 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 15 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, relief 16 cannot be granted for a claim that lacks facial plausibility. Twombly, 550 U.S. at 570. “A claim 17 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 18 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 19 at 678. 20 When considering whether a complaint states a claim upon which relief can be granted, 21 the court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 22 (2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan v. 23 Allain, 478 U.S. 265, 283 (1986). The court is not, however, required to accept as true 24 “conclusory [factual] allegations that are contradicted by documents referred to in the complaint,” 25 or “legal conclusions merely because they are cast in the form of factual allegations.” Paulsen v. 26 CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). 27 In addition, the court must dismiss a case if, at any time, it determines that it lacks subject 28 matter jurisdiction. Fed. R. Civ. P. 12(h)(3). A federal district court generally has jurisdiction 1 over a civil action when (1) a federal question is presented in an action “arising under the 2 Constitution, laws, or treaties of the United States” or (2) there is complete diversity of 3 citizenship between the parties and the amount in controversy exceeds $75,000. See 28 U.S.C. 4 §§ 1331, 1332(a). 5 Pleadings by self-represented litigants are liberally construed. See Haines v. Kerner, 404 6 U.S. 519, 520-21 (1972); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 7 Unless it is clear that no amendment can cure the defects of a complaint, a self-represented 8 plaintiff proceeding IFP is ordinarily entitled to notice and an opportunity to amend before 9 dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other 10 grounds by statute as stated in Lopez, 203 F.3d 1122; Franklin v. Murphy, 745 F.2d 1221, 1230 11 (9th Cir. 1984). Nevertheless, leave to amend need not be granted when further amendment 12 would be futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 13 Analysis 14 Plaintiff’s initial and amended complaints were rejected because (1) they contained very 15 little description of what happened to her (that is, what injury plaintiff was seeking to redress), 16 and (2) they named as the sole defendant the United States federal government, which is 17 generally immune from suit by private citizens. (ECF Nos. 1, 3, 4, 6.) 18 The SAC provides slightly more information about plaintiff’s claims, but that information 19 confirms that this suit should be dismissed because (A) it is not clear from the minimal factual 20 allegation how the federal government could be held liable for plaintiff’s injury, and (B) even if it 21 could be liable, the federal government is entitled to sovereign immunity. 22 1. Failure to State a Claim 23 The SAC contains a single paragraph of allegations asserting (1) violation of plaintiff’s 24 “bodily integrity” under the Fourteenth Amendment based on being terminated from some 25 unspecified employment for refusing to get vaccinated for COVID-19, and (2) “violation of 26 privacy” under the Fourth Amendment based on having her “information” shared on various 27 online platforms. (ECF No. 9 at 5.) Plaintiff’s request for relief is unclear but expresses a desire 28 to have an unspecified “COVID-19 vaccine mandate removed.” (Id. at 6.) 1 As plaintiff was previously informed, Federal Rule of Civil Procedure 8 requires a “short 2 and plain statement” of both the grounds for the court’s jurisdiction and the claim showing that 3 plaintiff is entitled to relief. Fed. R. Civ. P. 8(a); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 4 555 (2007) (purpose of these pleading requirements is to “give the defendant fair notice of what 5 the . . . claim is and the grounds upon which it rests” (cleaned up)). 6 The SAC provides a few more specific factual details than the previous complaints: 7 namely, that plaintiff was fired in January 2022 for refusing COVID-19 vaccination. (ECF No. 9 8 at 5.) However, it largely repeats the same “generalities” regarding her rights under the Fourth 9 and Fourteenth Amendments, which the court found insufficient in the prior order. (ECF No. 6 10 at 4.) The SAC does not identify plaintiff’s former employer or describe how any of the various 11 federally issued “COVID-19 vaccine mandate[s]” caused her to lose her job. It is unclear 12 whether plaintiff was a federal employee, or an employee of a federal contractor (or another type 13 of employer subject to one of the federal vaccination requirements)—or whether plaintiff was 14 simply employed by a private entity that chose to require COVID-19 vaccination for its 15 employees. 16 The court previously warned that basic information about the “mandate” and how it was 17 applied to harm plaintiff was required to satisfy Rule 8, and to avoid dismissal for failure to state 18 a claim under 28 U.S.C. § 1915(e)(2). (ECF No. 6 at 4.) However, plaintiff still does not explain 19 the link between the federal government and the termination of her employment. The connection 20 between the federal government and the existence of “information” about plaintiff on the internet 21 is even harder to understand. Based on the two prior attempts, it does not appear that plaintiff is 22 able to plead facts that would state a claim against the federal government or a federal official. 23 2. Sovereign Immunity 24 Even if plaintiff were able to plead a causal connection between the federal government 25 and her alleged injuries, dismissal would still be required because—as explained twice before— 26 the United States is immune from this type of suit. (See ECF Nos. 3 at 5, and 6 at 5.) 27 To reiterate, claims against the United States and its agencies are generally barred by the 28 doctrine of sovereign immunity. See United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is 1 axiomatic that the United States may not be sued without its consent and that the existence of 2 consent is a prerequisite for jurisdiction.”). In order to assert a claim against the United States, 3 the claimant “has the burden of ‘demonstrating an unequivocal waiver of immunity.’” United 4 States v. Park Place Assocs., Ltd., 563 F.3d 907, 924 (9th Cir. 2009) (quoting Cunningham v. 5 United States, 786 F.2d 1445, 1446 (9th Cir. 1986)). 6 Plaintiff states that she is “requesting a[n] unequivocal waiver” of immunity in this case 7 (ECF No. 9 at 5), but that is not how the process works. The United States would need to have 8 already consented to be sued by private citizens for constitutional violations; but it has not. See 9 Thomas–Lazear v. F.B.I., 851 F.2d 1202, 1207 (9th Cir. 1988) (“[T]he United States has not 10 waived its sovereign immunity in actions seeking damages for constitutional violations.”); 11 Midwest Growers Co-op. Corp. v. Kirkemo, 533 F.2d 455, 465 (9th Cir. 1976) (“It is well 12 established that suits to enjoin the United States or its agencies, like damage suits, cannot be 13 maintained unless the Government first consents.”). Thus, plaintiff cannot bring a Fourth or 14 Fourteenth Amendment claim against the United States, or against a federal agency or federal 15 officials in their official capacity. See Sierra Club v. Whitman, 268 F.3d 898, 901 (9th Cir. 2001) 16 (treating suits against federal agencies and officials in their official capacity the same as suits 17 against the United States). 18 The court twice granted leave for plaintiff to amend the complaint to attempt to bring 19 instead what is known as a “Bivens” claim seeking damages against an individual officer or 20 employee of the federal government, in their individual capacity, for deprivation of constitutional 21 rights. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 22 (1971); F.D.I.C. v. Meyer, 510 U.S. 471, 484-86 (1994) (holding that Bivens action lies against 23 federal agents, but not federal agencies). (See ECF Nos. 3 at 5-6, and 6 at 5-6.) However, the 24 SAC continues to name the United States federal government as the sole defendant. In addition, 25 as discussed above, it is unclear what claim plaintiff might have against an individual federal 26 official given the unknown causal connection between the various federal vaccine mandates and 27 the alleged constitutional deprivations. 28 /// ] Because the SAC largely repleads allegations that the court already found insufficient, and 2 || fails to meaningfully incorporate the court’s instructions for amendment, the undersigned 3 || recommends dismissing this case without further leave to amend. See Cahill, 80 F.3d at 339 (no 4 || leave to amend where amendment would be futile). 5 RECOMMENDATIONS 6 Accordingly, IT IS HEREBY RECOMMENDED that: 7 1. This action be DISMISSED for failure to state a claim, under 28 U.S.C. § 1915(e)(2); 8 and 9 2. The Clerk of Court be directed to CLOSE this case. 10 These findings and recommendations are submitted to the United States District Judge 11 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).. Within fourteen (14) 12 || days after being served with these findings and recommendations, plaintiff may file written 13 || objections with the court. Such a document should be captioned “Objections to Magistrate 14 | Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 15 || the specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 16 | 158 F.3d 449, 455 (Oth Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 17 || Dated: July 6, 2022 i Aectl Aharon 19 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 20 21 pere.0073 22 23 24 25 26 27 28