Opinion
Civil No. 04-3086-CO.
October 12, 2004
ORDER AND FINDINGS AND RECOMMENDATION
The provisional in forma pauperis status given the plaintiff is confirmed. For the reasons set forth below, plaintiff's complaint should be dismissed without leave to amend and without service of process on the basis that his claims are frivolous. See 28 U.S.C. § 1915(d).
I. FACTS
Plaintiff, proceeding pro se, brings this action for alleged constitutional violations against the United States of America and various politicians or government officials. The following facts paraphrase plaintiff's complaint allegations.In 1974, while in boot camp, plaintiff suffered severe trauma in an incident when he went to the latrine. (Complaint at 2). Also during this same period, he was restrained and shocked with electricity. (Id.). He requests that certain information be disclosed. (Id. at 3). He claims the United States needs all soldiers "back at the home front". (Id. at 4). He requests a special session of Congress to revoke the Presidents privilege to hold office. (Id. at 5). He requests that the United States government pay for liability for P.T.S.D. and requests that the court order repayment of any compensation or benefits paid to the First Ladies of the United States. (Id. at 6).
II. LEGAL STANDARDS
28 U.S.C. § 1915(d) provides in part: "Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without payment of fees and costs or security thereof, by a person who makes affidavit that he is unable to pay such costs or give security therefor . . .". Under section 1915(d), the court is obligated to dismiss an action sought to be pursued in forma pauperis if the action appears to be without merit. 28 U.S.C. § 1915(d); Smart v. Heinze, 347 F.2d 114, 155 (9th Cir.), cert. denied, 382 U.S. 896 (1965). Courts have broad discretion in dismissing actions under this section. Levy v. Federated Dept. Stores, 607 F.Supp. 32, 34 (S.D. Fla. 1984).
A complaint is without merit for the purposes of § 1915(d), if it lacks an arguable basis in law or fact. Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992), cert. denied, 507 U.S. 1009 (1993). In determining whether plaintiff's complaint is frivolous, the court will liberally construe his allegations to afford him the benefit of any doubt. Lopez v. Dept. of Health Services, 939 F.2d 881, 882 (9th Cir. 1991).
III. DISCUSSION
The defendants in this case are the federal government and federal officials. A Bivens claim is the federal counterpart of a § 1983 civil rights action where the defendants are federal officials. Paton v. La Prade, 524 F.2d 862 (3rd Cir. 1975).Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), allows suits for damages against federal officials, in their individual capacities, for federal constitutional violations. Bivens, 403 U.S. at 389, 395-396;See also Gilbert v. DaGrossa, 756 F.2d 1455, 1459 (9th Cir. 1985). Plaintiff must either seek relief under Bivens for direct violations of his constitutional rights by federal officials in their individual capacities or under the Federal Tort Claims Act for common law torts committed by federal agents acting in their official capacities. Chodes v. F.B.I., 559 F.Supp. 69, 72 (S.D.N.Y.), affirmed, 697 F.2d 289 (2nd Cir. 1982), cert. denied., 459 U.S. 1111, reh. denied, 460 U.S. 1048 (1983).
Sovereign immunity shields the government, its agencies, and its employees in their official capacity from suit. See F.D.I.C. v. Meyer, 510 U.S. 471 (1994). The United States has not waived its sovereign immunity for constitutional torts. Id. Therefore, plaintiff's claims against the United States and any employees or officials in their official capacities for constitutional torts should be dismissed.
The same statute of limitations which applies to § 1983 claims also applies to Bivens claims. Van Strum v. Lawn, 940 F.2d 406, 410 (9th Cir. 1991). Oregon's two-year statute of limitations for personal injury actions, ORS 12.110(1), governs § 1983 actions. Cooper v. City of Ashland, 871 F.2d 104, 105 (9th Cir. 1989). Plaintiff filed his complaint on October 8, 2004. Plaintiff's claims regarding his treatment in boot camp in 1974 are barred by the two year statute of limitations.
Plaintiff's remaining allegations are political questions over which this court lacks jurisdiction or the power to grant the relief requested. Therefore, these claims should be dismissed.
It appears that amendment in this case would be futile.
IV. RECOMMENDATION
Based on the foregoing, it is recommended that plaintiff's complaint be dismissed without leave to amend and a judgment dismissing this case with prejudice be entered.
The recommendation contained herein is 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 the district court's judgment or appealable order. The plaintiff shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation.