Opinion
3:22-CV-00979-YY
07-26-2022
MICHAEL RAY SWANSON, Plaintiff, v. CONGRESS, JOE BIDEN, NANCY PELOSI, MARK TAKANO, MIKE LEVIN, Defendants.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU, UNITED STATES MAGISTRATE JUDGE.
FINDINGS
Pro se plaintiff Michael Swanson has filed a Complaint (ECF #1) and an Application to Proceed In Forma Pauperis (“IFP”) (ECF #2). The court has granted plaintiff's IFP application by separate order.
The IFP statute provides that “[n]otwithstanding 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 . . . the action . . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). “A pleading that states a claim for relief must contain . . . a short and plain statement of the grounds for the court's jurisdiction; . . . a short and plain statement of the claim showing that the pleader is entitled to relief; and . . . a demand for the relief sought, which may include in the alternative or different types of relief.” FED. R. CIV. P. 8(a). “Rule 8 does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2006) (citations omitted). “A complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id.
Federal courts hold a Pro se litigant's pleadings to “less stringent standards than formal pleadings drafted by lawyers.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987); see Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam) (holding a document filed Pro se “is to be liberally construed”; a plaintiff need only give the defendant fair notice of the claim and the grounds on which it rests) (citation omitted). “Although a Pro se litigant . . . may be entitled to great leeway when the court construes his pleadings, those pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong.” Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995).
In this case, plaintiff brings a cause of action premised on his alleged exposure to contaminated water while stationed at Camp Lejeune, which he contends caused him illness and monetary loss. Plaintiff has filed at least four previous lawsuits with similar allegations, all of which have been dismissed. See Swanson v. United States, 3:21-cv 00350-YY, Compl., ECF #1; Swanson v. United States, 3:18-cv-02148-JR, Compl., ECF #2,; Swanson v. United States Attorney General, 3:17-cv-01164-MO, Am. Compl., ECF #9; Swanson v. Attorney General, 17-cv-00216-MO, Am. Compl., ECF #6.
Plaintiff filed the first lawsuit on February 1, 2017, alleging a Federal Tort Claims Act (“FTCA”) claim and other claims against the United States Attorney General and other defendants because, inter alia, “[defendants] chose to ignore studies on health effects to the body from exposure from toxic drink[ing] water[.]” Swanson, 3:17-cv-00216, Am. Compl. §§ I.B.,
II.A., ECF #6. Judge Mosman granted defendants' motion to dismiss, finding that plaintiff had failed to exhaust his administrative tort claim with the Veterans Administration and that the court lacked subject matter jurisdiction under the Veterans' Judicial Review Act. Id., Opinion and Order, ECF #13.
Plaintiff filed the second lawsuit on July 17, 2017, alleging FTCA claims and other claims against the United States Attorney General. Swanson, 3:17-cv-01164-MO, Am. Compl. 4, ECF #9. At a hearing held on November 28, 2018, Judge Mosman granted the United States' motion for summary judgment, finding that plaintiff's claims were precluded by the Feres doctrine and the FTCA's statute of limitations. Id., Transcript 6:19-7:6, ECF #63. Judge Mosman entered judgment dismissing plaintiff's claims with prejudice on November 29, 2018. Id., Judgment, ECF #57.
The FTCA waives the United States' sovereign immunity, making it “liable for the tortious acts of its employees in the same manner and to the same extent as a private individual under like circumstances.” Daniel v. United States, 889 F.3d 978, 981 (9th Cir. 2018). However, under the Feres doctrine, “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Feres v. United States, 340 U.S. 135, 146 (1950).
Plaintiff filed the third lawsuit on December 14, 2018, alleging FTCA claims and other claims against the United States Attorney General and additional defendants. Swanson, 3:18-cv-02148-JR, Compl., ECF #2. The court granted the United States' motion for summary judgment and dismissed the case with prejudice, finding that plaintiff's claims were barred by the doctrine of claim preclusion, and again finding they were precluded by the Feres doctrine and the FTCA's statute of limitations. Id., Findings and Recommendations, ECF #36, adopted by Opinion and Order, ECF #46.
In his fourth lawsuit, plaintiff did not allege the FTCA as a basis for his claims. See Compl § II, ECF #1. Instead, he alleged the following bases for his claims:
2 CFR 910.132 Research Misconduct[,] 28 USC SS/1331, 33 USC /931---4(C)---False statements or representation to reduce, deny, or terminate benefits and 18 U.S. Code Chapter 47 - FRAUD AND FALSE STATEMENTS[.]Id. However, the court found that 2 C.F.R. § 910.132 pertained to research conducted on behalf of the Department of Energy (“DOE”), and provided no basis for a claim related to alleged exposure to toxic chemicals at Camp Lejeune. See 2 C.F.R. § 910.132(a) (“A recipient is responsible for maintaining the integrity of research of any kind under an award from DOE including the prevention, detection, and remediation of research misconduct, and the conduct of inquiries, investigations, and adjudication of allegations of research misconduct in accordance with the requirements of this section.”). Nor did 33 U.S.C. § 931(c), which pertained to the “Longshore and Harbor Workers' Compensation Act.” See 33 U.S.C. § 931(c) (“A person . . . who knowingly and willfully makes a false statement or representation for the purpose of reducing, denying, or terminating benefits to an injured [Longshore or Harbor] employee[.]”). The court further found that plaintiff had no cause of action under 18 U.S.C. § 47. That statute, titled “Fraud and False Statements,” encompasses a number of federal statutes that make it a crime to make or submit false or fraudulent statements to the United States. 18 U.S.C. §§ 1001-40. Plaintiff, as a private party, cannot bring a civil claim based on the violation of a federal criminal statute. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (explaining that criminal provisions under Title 18 of the U.S. Code “provide no basis for civil liability”) (citations omitted); see also Vrooman v. Armstrong, No. 3:16-CV-01109-YY, 2016 WL 6139953, at *2 (D. Or. Sept. 30, 2016), report and recommendation adopted, 2016 WL 6139924 (D. Or. Oct. 20, 2016) (“This court cannot resolve a criminal dispute brought by a private citizen. Criminal statutes are public in nature, prosecuted in the name of the United States.”). Therefore, plaintiff's fourth case was also dismissed with prejudice. Swanson v. United States, 3:21-cv-00350-YY, ECF 12 (Opinion and Order); 13 (Judgment).
In this case, plaintiff asserts the following claims:
14th Amendment section 1, 18 USC 1001 Bivens action, IIED/TORT, Article 32; 10 usc 1129/Purple heart, 38 cfr 3.309(f), title 38 USC veterans benefits/(38 usc 5303), 38 CFR 3,12(a) dis honorable, Public law 102-4, 42 usc 1983, 38 cfr 20.1403, EPA super fund toxic bases, 38 CFR 3.317-VS-38 CFR 3.309 young get undiagnosed illenss-vs-old get ASSOCIATIONS TO DISEASESCompl. §II(A), ECF 1.
“The statute of limitations on a Bivens claim in Oregon is two years.” Ezell v. Esquetini, No. 3:13-CV-00924-JE, 2014 WL 12852447, at *2 (D. Or. June 12, 2014). Plaintiff's intentional infliction of emotional distress (“IIED”) claim is also subject to a two-year statute of limitations. Phi Cam Luong v. U.S. Bank Nat. Ass'n, No. 3:12-CV-01220-HU, 2013 WL 4431293, at *3 (D. Or. Aug. 14, 2013). Plaintiff's claim is over two years old-he first filed suit regarding these same underlying facts in at least 2017. Moreover, the complaint references contamination of the water supply at Camp Lajeune well before that-from August 1, 1953, through December 31, 1987. ECF 1, at 12.
Plaintiff cites 18 U.S.C. § 1001, a criminal statute pertaining to false statements; however, plaintiff cannot bring a civil suit based on the violation of a federal criminal statute. See Aldabe, 616 F.2d at 1092. The purple heart statute that plaintiff cites, 10 U.S.C. § 1129, also does not provide a cause of action, nor does 38 C.F.R. § 3.309 or any of the statutes pertaining to veterans benefits that plaintiff cites. Similarly, plaintiff has not stated a cause of action by generally referring to “EPA super fund toxic bases.”
Ordinarily, Pro se litigants are entitled to notice of the deficiencies in the complaint and given the opportunity to amend. See Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (“Unless it is absolutely clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.). However, this is plaintiff's fifth attempt to bring claims based on his alleged exposure to toxins during his military service at Camp Lejeune, and the last three cases were dismissed with prejudice. Plaintiff again fails to cite a valid claim for relief. Because providing plaintiff with further leave to amend would be futile, dismissal with prejudice is appropriate. See Clark v. Duncan, 131 F.3d 145 (9th Cir. 1997) (“Where amendment of a pro se litigant's complaint would be futile, denial of leave to amend is appropriate.).
RECOMMENDATIONS
Plaintiff's case should be dismissed with prejudice and judgment to that effect should be entered.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, July 29, 2022. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.