Opinion
No. C-00-0772 JCS
July 20, 2000
ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITH LEAVE TO AMEND
I. INTRODUCTION
Plaintiff brings this action in pro se and seeks leave of this court to proceed in forma pauperis.
Plaintiff alleges due process violations under the Fifth and Fourteenth Amendment to the United States Constitution, including a Bivens claim. He also alleges statutory causes of action under 42 U.S.C. § 1983, 1985(3), 1988 and 29 U.S.C. § 185. Finally, he brings a claim under state tort law for intentional infliction of emotional distress. The complaint was assigned to a United States Magistrate Judge and Plaintiff consented to the jurisdiction of the undersigned. See 28 U.S.C. § 636(c).
Based upon the information contained in Plaintiff's Application To Proceed In Forma Pauperis, and good cause appearing, Plaintiff's Application To Proceed In Forma Pauperis is hereby granted. Having granted Plaintiff's leave to proceed in forma pauperis, this Court must now review the allegations in the complaint to determine whether it must be dismissed prior to service. Under 28 U.S.C. § 1915 (e)(2)(B), a federal court must engage in a preliminary screening of cases in which a party is proceeding in forma pauperis and dismiss any claims which are: 1) frivolous or malicious; 2) fail to state a claim on which relief may be granted; or 3) seek monetary relief against a defendant who is immune from such relief. For the reasons set forth below, this court dismisses all of Plaintiff's claims for failure to state a claim on which relief may be granted, with leave to amend.
Although a magistrate judge does not have jurisdiction over an action unless all parties have consented, this Court does not require the consent of the Defendants in order to properly dismiss claims brought in this action because Defendants have not been served, and, as a result, they are not parties. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (holding that magistrate judge had jurisdiction to dismiss prison inmate's action under 42 U.S.C. § 1983 as frivolous without consent of defendants because defendants had not been served yet and therefore were not parties); see also United States v. Real Property, 135 F.3d 1212, 1217 (9th Cir. 1998) (holding that magistrate judge had jurisdiction to enter default judgment in in rem forfeiture action even though property owner had not consented to it because 28 U.S.C. § 636(c)(1) only requires the consent of the parties and the property owner, having failed to comply with the applicable filing requirements, was not a party).
II. BACKGROUND
In his complaint, Plaintiff alleges the following facts:
Victoria Hernandez, Leon Garth, and Plaintiff were employees of the United States Postal Service ("Postal Service") and members of the National Mail Handlers Union, Division of ILUWA, AFL-CIO, Local 302 ("Union"). Complaint at 5. On April 13, 1998, Hernandez, who was one of Plaintiff's co-workers, notified Garth, Plaintiff's supervisor, that Plaintiff had used racial slurs in referring to minorities. Id. On April 17, 1998, Plaintiff received a "Just Cause Interview" from Garth in the presence of L.C. Calmese, a Union representative. Id. Plaintiff visited Dr. James Liles on April 29, 1998, complaining about stress allegedly caused by the hostile workplace that Hernandez, Garth, and Calmese created. Id. at 6. Dr. Liles sent a letter to the Postal Service that certified Plaintiff's need to take a three-week medical leave. Id.
Although Plaintiff did not number the pages of his complaint, this Court has numbered the pages for the sake of convenience. The Court has designated the caption page, which is the first page containing text, as page one. The numbering skips the inserted pages entitled "EXHIBIT" and "ATTACHMENTS."
Sometime after May 13, 1998, Plaintiff applied to the Postal Service for Federal Employees Compensation Act ("FECA") benefits, known as Continuation of Pay ("COP"), to compensate him for lost pay resulting from an alleged workplace injury. Id. Although the Postal Service initially rejected the application as untimely, it subsequently conceded that the application was timely and sent the application to the Office of Worker's Compensation Program ("OWCP") for consideration on the merits. Id. On July 6, 1998, the OWCP rejected Plaintiff's request for COP. Id. at 7. According to Plaintiff, Calvin Sagami, a senior claims examiner with the OWCP, concluded that Plaintiff was disciplined for remarks that Plaintiff did not dispute that he had made and that disciplinary actions are not covered under FECA. Id. Furthermore, Sagami found that the injury was not suffered during the course of Plaintiff's employment duties. Id.
The OWCP is the agency within the Department of Labor that handles all FECA claims. 20 C.F.R. § 10.1 (1999).
Plaintiff did not attach a copy of the OWCP decision to his complaint. Therefore, the Court relies on Plaintiff's characterization of the OWCP decision.
On September 14, 1998, Plaintiff requested a hearing before the Branch of Hearing and Review, the agency division charged with considering appeals of OWCP decisions. Id. at 12. His request was granted and the hearing was held on February 23, 1999. Id. Again, his claim was denied. Id. Rather than pursuing an appeal to the second tier of appeals within the Department of Labor, the Employees' Compensation Appeal Board, Plaintiff filed this complaint on March 6, 2000. Id. at 13. Meanwhile, Plaintiff had also applied for disability benefits from the Social Security Administration on June 2, 1998. Id. at 24. After a hearing before an administrative law judge from the Social Security Administration's Office of Hearing and Appeals on April 27, 1999, Plaintiff was awarded Social Security benefits. Id. at 24. The administrative law judge's April 29, 1999 decision found that Plaintiff suffered from a bi-polar disorder and met the insured status requirements as of April 16, 1998. Id. at 23.
Because Plaintiff attached a copy of the administrative judge's decision to his complaint, the decision of the Social Security Administration, along with accompanying attachments, are deemed part of the complaint and may be considered in evaluating whether Plaintiff has stated a claim. See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).
James Bronson prepared the complaint in this action on behalf of Plaintiff and submitted a written declaration with the complaint explaining that he had represented Plaintiff during the administrative proceedings with the OWCP and Social Security Administration. Id. at 16. He also requested that he be allowed to assist Plaintiff in this action because Plaintiff's bipolar disorder prevents him from litigating this action without assistance. The complaint sets forth the following claims against the Postal Service, Department of Labor, Union, supervisor Leon Garth, co-worker Victoria Hernandez, and Union representative L.C. Calmese: 1) violations of procedural and substantive due process; 2) a 42 U.S.C. § 1985(3) claim and 3) a state law tort claim for intentional infliction of emotional distress. Plaintiff also alleges a Bivens claim against supervisor Garth. In addition, Plaintiff brings a 42 U.S.C. § 1983 claim against the Postal Service only. Lastly, he alleges a "hybrid" claim under 29 U.S.C. § 185 against the Postal Service and the Union. Plaintiff seeks compensatory and punitive damages.
Although Plaintiff lists only the Department of Labor and the Union in the caption of his complaint, in the text of his complaint, he appears to name Leon Garth, Victoria Hernandez, L.C. Calmese, and the Postal Service as additional Defendants. The Court reads the complaint broadly to allege claims as to all of these Defendants. If Plaintiff chooses to amend his complaint as discussed below, he shall clearly identify who is named as a defendant in the suit and shall include all defendants in the caption of the amended complaint.
III. LEGAL STANDARD
Federal courts must construe pro se complaints liberally. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972); Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Balisteri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). A pro se complaint therefore should not be dismissed if it states a claim under any legal theory, even if a plaintiff erroneously relies on a different legal theory. See, e.g., Haddock v. Board of Dental Examiners of California, 777 F.2d 462, 464-65 (9th Cir. 1985). Courts should not undertake to infer another cause of action when a pro se complaint clearly states a claim under a specified cause of action. See Bogovich v. Sandoval, No. 96-16528, slip op. 10093, 10097 (9th Cir. Aug. 30, 1999). The party who brings a suit is master to decide upon what law he will rely. See id.
IV. ANALYSIS A. Due Process Claims
In his complaint, Plaintiff alleges substantive and procedural due process violations against all Defendants. This Court also construes Plaintiff's complaint as alleging a Bivens claim against Supervisor Garth.
With respect to the Union, co-worker Hernandez, and union representative Calmese, the substantive and procedural due process claims are dismissed because Plaintiff has alleged no government action by these defendants. The Due Process Clause forbids the government from depriving individuals of life, liberty, or property without due process of law. DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 196 (1989). However, the Due Process Clause does not apply to the individual activities of private actors unless there is a sufficient nexus between the government and the action of the private entity to justify attributing the action to the government itself. Rank v. Nimmo, 677 F.2d 692, 701 (9th Cir. 1982). The Union, Hernandez, and Calmese are private actors. Plaintiff has not alleged the required nexus between the government and the private actors. He therefore has failed to state a claim as to these defendants for any alleged due process violations.
To the extent Plaintiff alleges a conspiracy between private actors and government entities, that claim fails for the reasons stated below, in the section addressing plaintiff's conspiracy claim under § 1985(3).
Plaintiff's remaining due process claims are against the Department of Labor, Postal Service, and Supervisor Garth for violating his substantive and procedural due process rights. In addition, Plaintiff alleges a Bivens claim against Supervisor Garth. For the reasons stated below, these claims are also dismissed.
This Court notes with respect to all of Plaintiff's due process claims except his Bivens claim that his only available remedy is remand to the Department of Labor for reconsideration of his application of FECA benefits. Plaintiff is not entitled to damages for a cause of action under the Fifth or Fourteenth Amendments because there is no right to money damages against the United States unless there is a waiver of sovereign immunity. United States v. Testan, 424 U.S. 392, 400 (1976). Here, there is no such waiver. See Czerkies v. United States Dep't of Labor, 73 F.3d 1435, 1437 (7th Cir. 1996) (holding that no statute waives the sovereign immunity of the United States with respect to claims by its employees for compensation for injuries sustained on the job (beyond what is allowed by the Federal Employees Compensation Act itself) or to constitutional claims generally).
1. Substantive Due Process Claims
This Court construes Plaintiff's substantive due process claims against the Department of Labor, Postal Service, and Supervisor Garth as alleging that the federal government interfered with Plaintiff's right to due process by rejecting his application for FECA benefits.
In determining whether there has been a violation of substantive due process, the Court must first consider whether the government has infringed upon a fundamental liberty interest. Where a fundamental liberty interest is at issue, the government must demonstrate a compelling need to justify the intrusion. Reno v. Flores, 507 U.S. 292, 302 (1993). On the other hand, where there is no liberty interest at issue, the government need only show that the intrusion is justified because it is rationally related to the achievement of a legitimate government interest. Washington v. Glucksberg, 521 U.S. 702, 722 (1997). Among the liberty interests that have been found to be fundamental are the right to marry, see Loving v. Virginia, 388 U.S. 1 (1967), to have children, see Skinner v. Oklahoma, 316 U.S. 535 (1942), to direct the education and upbringing of one's children, see Myer v. Nebraska, 262 U.S. 390 (1923), to marital privacy, see Griswold v. Connecticut, 381 U.S. 479 (1965), to use contraception, see Eisenstadt v. Baird, 405 U.S. 438 (1972), to bodily integrity, see Rochin v. California, 342 U.S. 165 (1952), and to abortion, see Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).
The right to receive FECA benefits is not a liberty interest. See Weinberger v. Salfi, 422 U.S. 749, 772 (1975) (holding that a noncontractual claim to receive funds from the public treasury enjoys no constitutionally protected status). Therefore, the denial of benefits alleged by Plaintiff must only meet the rational relation test.
Plaintiff has alleged no facts showing that the denial of FECA benefits did not bear a rational relation to the legitimate legislative goals of FECA. The complaint only alleges that "his constitutional and due process rights have been violated by his employment agency, union, and hearing board." Complaint at 12. "The mere allegation of a substantive due process violation is not sufficient to raise a `colorable' constitutional claim to provide subject matter jurisdiction." Hoye v. Sullivan, 985 F.2d 990, 992 (9th Cir. 1992). Therefore, Plaintiff's substantive due process claim is dismissed as to the Department of Labor, Postal Service, and Supervisor Garth, with leave to amend. In order to state a viable substantive due process claim in his amended complaint, Plaintiff must allege facts which show that the denial of FECA benefits in his case was not rationally related to a legitimate legislative goal.
2. Procedural Due Process Claims
This Court finds that Plaintiff also has failed to allege adequate facts to state a procedural due process claim against the Department of Labor, Postal Service, and Supervisor Garth.
Judicial review of the Secretary of Labor's findings of facts and law generally are precluded under FECA. Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 90 (1991) (holding that 5 U.S.C. § 8128(b) is an "unambiguous and comprehensive provision barring any judicial review of the Secretary's determination of FECA coverage"); Rodrigues v. Donovan, 769 F.2d 1344, 1347 (9th Cir. 1985) (stating that Congress' intent under section 8128(b) was that courts not be burdened by a flood of small claims challenging the merits of compensation decisions). A district court is not barred by FECA from considering a challenge to the constitutionality of the procedure in which a claim was denied. Rodrigues, 769 F.2d at 1348 (refusing to read section 8128 as taking the extraordinary step of foreclosing jurisdiction over constitutional claims). However, despite the district court's authority to hear constitutional challenges, "[a] mere allegation of a constitutional violation [is not] sufficient to avoid the effect of a statutory finality provision." Id. Rather, a plaintiff must also allege facts in support of his constitutional claim. Gearhart v. Thorne, 768 F.2d 1072, 1073 (9th Cir. 1985) (per curiam). In particular, a plaintiff must "allege facts showing not only that the State has deprived him of a liberty or property interest but also that the State has done so without due process of law." Id.
Plaintiff has not alleged any facts that show the government denied his benefits application without due process. Plaintiff has asserted no facts which show he was deprived of notice or the opportunity to be heard. See, e.g., Rodrigues, 769 F.2d at 1348 (holding that allegations that the Secretary failed to give the plaintiff a hearing after the suspension of the plaintiff's benefits and that there was considerable delay in deciding the plaintiff's claim stated a colorable due process claim); Booker v. United States, 16 F. Supp.2d 52, 60-61 (D.Mass. 1998) (holding that the plaintiff's right to due process was violated because the Secretary of Labor did not toll the one year limitations period applicable to a reconsideration request after the plaintiff had a stroke and was unable to communicate in any way during part of the time in which the plaintiff's claim was under review). Nor has Plaintiff alleged that the procedures were constitutionally inadequate, or that they were not properly followed. See, e.g., Boettcher v. Secretary of Health and Human Servs., 759 F.2d 719, 722 (9th Cir. 1985) (holding that the plaintiff's challenge to the Secretary of Labor's decision to hold a de novo hearing on all issues where the plaintiff sought to appeal only as to determination of the date of the onset of his disability stated a colorable due process claim). Although Plaintiff lists various sections from the Code of Federal Regulations that set forth procedural requirements, he does not allege that the Department of Labor, Postal Service, or Supervisor Garth did not follow them. Therefore, Plaintiff's procedural due process claims are dismissed as to the Department of Labor, Postal Service, and Supervisor Garth, with leave to amend to plead facts showing that the procedures were not constitutionally adequate or that they were not properly followed.
In alleging that he was wrongfully denied FECA benefits, Plaintiff has alleged a constitutionally protected property interest. See Raditch v. United States, 929 F.2d 478, 480 (9th Cir. 1991).
3. Bivens Claim
Construed liberally, this Court reads Plaintiff's complaint as alleging a Bivens claim against Supervisor Garth. In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the Supreme Court held that an implied a cause of action for damages exists against federal agents who have caused harm to the plaintiff by allegedly violating his constitutional rights (subsequently termed a constitutional tort). As discussed above, however, Plaintiff has failed to allege any specific facts suggesting that Supervisor Garth has committed any constitutional violations. Therefore, this Court dismisses the Plaintiff's Bivens claim, with leave to amend as described in Sections A.1. and A.2. above.
In addition, the Court notes that Plaintiff's Bivens claim against Garth may be barred on a separate ground. In enacting the Postal Reorganization Act ("PRA"), Congress has created a comprehensive remedial scheme to address constitutional violations in the postal employment relationship. See Pereira v. United States Postal Service, 964 F.2d 873, 875 (9th Cir. 1992) (holding that Chapters 10 and 12 of the PRA, 39 U.S.C. § 1001-1011, 1201-1209, set out a comprehensive scheme governing employment relations within the Postal Service). "When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies." See Schweiker v. Chilicky, 487 U.S. 412, 423 (1988).; see also Bush v. Lucas, 462 U.S. 367, 389 (1983) (holding that a constitutional tort action against individual federal managers should not be implied where Congress has created an alternative remedy). The Ninth Circuit has applied Chilicky broadly, "holding that where Congress has provided some mechanism for relief, Bivens claims are precluded." Pereira, 964 F.2d at 875 (quoting Berry v. Hollander, 925 F.2d 311, 313 (9th Cir. 1991)); see also Saul v. United States, 928 F.2d 829, 832 (9th Cir. 1991) (holding that the Civil Service Reform Act provided the plaintiff, a federal employee, with an adequate remedy and thus precluded a Bivens claim against his supervisor for a warrantless search). However, at this time, the Court does not decide this issue or dismiss this claim on that basis.
B. 42 U.S.C. § 1983
Plaintiff asserts a § 1983 claim against the Postal Service. Section 1983 requires that the act alleged to be wrongful must have been taken under color of state law. Lonneker Farms, Inc. v. Klobucher, 804 F.2d 1096, 1097 (9th Cir. 1986). Here, all of the actions by the Postal Service about which Plaintiff complains were taken under the color of federal law. Therefore, Plaintiff fails to state a claim against the Postal Service under § 1983 and this claim is dismissed. In order to cure this deficiency in his amended complaint, Plaintiff must allege specific facts showing that the actions of the Postal Service about which he complains were taken pursuant to "any statute, ordinance, regulation, or usage of any State or Territory . . ." 42 U.S.C. § 1983.C. 42 U.S.C. § 1985(3)
Plaintiff alleges, "defendant's were conspiratorily engaged in a scheme conspiracy designed and intended to deny and deprive plaintiff of rights guaranteed to him under the Constitution and law of the United States." Complaint at 13. This Court construes Plaintiff's allegation as a 42 U.S.C. § 1985(3) action against all Defendants for conspiring to deprive him of his due process rights and possibly his right to equal protection.
Section 1985(3) provides,
If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
It is well established that a plaintiff can sue under § 1985(3) for a conspiracy to deprive him of equal protection. See Bretz v. Kelman, 773 F.2d 1026, 1028 (9th Cir. 1985) (citing Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). In order to recover, one must be a member of a protected class. Id. It is not clear whether Plaintiff's bi-polar disorder qualifies him for membership in a protected class. The Ninth circuit has not addressed the issue of whether mental disability provides the basis for an equal protection claim or a § 1985(3) claim based on such a claim. See Fields v. McKenzie, No. 95-16896, 1986 U.S. App. WL 341270, at 1 (9th Cir. Jan 19, 1996). But see, Trautz v. Weisman, 819 F. Supp. 282, 293 (S.D.NY 1993) (holding that a plaintiff suffering bi-polar disorder was entitled to relief under § 1985(3)). It is also unclear to this Court whether § 1985(3) proscribes conspiracies to deprive a plaintiff of his due process rights where the due process violation alleged is not somehow related to the plaintiff's membership in a protected class. See Peloza v. Capistrano Unified School District, 37 F.3d 517, 524 n. 8 (9th Cir. 1994) (suggesting that the Ninth Circuit has upheld § 1985(3) claims alleging a conspiracy to deny due process, citing Judie v. Hamilton, 872 F.2d 919, 924 (9th Cir. 1989) and Padway v. Palches, 665 F.2d 965, 969 (9th Cir. 1982)).
Without deciding whether § 1985(3) protects mentally disabled individuals and/or proscribes conspiracies to deprive due process, this Court holds that Plaintiff has failed to allege facts specific enough to state a § 1985(3) claim.
The Ninth Circuit has held that "[a] claim under this section must allege facts to support the allegation that defendants conspired together. A mere allegation of conspiracy without factual specificity is insufficient." Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 626 (9th Cir. 1988). Unsubstantiated, conclusory, vague or general allegations of a conspiracy to deprive the plaintiff of constitutional rights are not enough. Id. at 625. Even a pro se plaintiff must allege some factual basis to substantiate his conclusion that defendants conspired together to deprive him of his constitutionally protected interests. Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980). Specifically, a plaintiff must allege specific facts with respect to the following requirements for claims brought under § 1985(3):
(1) a conspiracy; 2) for the purposes of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and 3) an act in furtherance of this conspiracy; 4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. . . . Further, the second of these four elements requires that in addition to identifying a legally protected right, a plaintiff must demonstrate a deprivation of that right motivated by `some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirator's action.'
Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (quoting Griffin v. Breckenridge, 403 U.S. at 102). Here, Plaintiff has alleged no facts showing that Defendants conspired to deprive him of any constitutional rights. Therefore, this claim is dismissed as to all Defendants, with leave to amend to cure this deficiency.
D. 42 U.S.C. § 1988
Plaintiff mentions 42 U.S.C. § 1988 in his complaint. Section 1988 gives the court discretion to award attorney's fees to a prevailing party in actions to enforce various civil rights statutes, including sections 1983 and 1985(3). Because Plaintiff has failed to state either one of these claims, he is not a prevailing party and is not entitled to an award of attorneys' fees at this time.
E. 29 U.S.C. § 185(a)
Liberally construed, Plaintiff alleges that the Union breached its duty of fair representation and the Postal Service breached a labor contract with the Union, in violation of 29 U.S.C. § 185(a). Under § 185, an individual employee may sue (1) an employer for breach of a contract between the employer and (2) a union and the union for breach of its duty of fair representation. DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 165 (1983) (where the plaintiff alleged that his employer had discharged him in violation of the collective bargaining agreement and that his union had breached its duty of fair representation by mishandling the ensuing grievance procedure); see also United Food Commercial Workers Int'l Union, 43 F.3d 424, 425 (9th Cir. 1994). As the Supreme Court explained in DelCostello:
Section 185(a) provides, "[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties."
It has long been established that an individual employee may bring suit against his employer for breach of a collective bargaining agreement. Ordinarily, however, an employee is required to attempt to exhaust any grievance or arbitration remedies provided in the collective bargaining agreement. Subject to very limited judicial review, he will be bound by the result according to the finality provisions of the agreement. . . . [H]owever, . . . this rule works an unacceptable injustice when the union representing the employee in the grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation. In such an instance, an employee may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding. Such a suit, as a formal matter, comprises two causes of action. . . . Yet the two claims are inextricably interdependent. To prevail against either the [employer] or the Union, . . . [plaintiffs] must not only show that [the employer's action] was contrary to the contract but must also carry the burden of demonstrating a breach of duty by the Union.
DelCostello, 462 U.S. 151, 165 (1983) (citations and quotations omitted).
Thus, in order to recover against either the Postal Service (his employer) or the Union, Plaintiff here must allege that: 1) a collective bargaining agreement existed between the employer and the Union; 2) that contract was breached by the employer, causing injury to Plaintiff; and 3) the Union breached its duty of representation owed to Plaintiff as described in DelCostello.
Plaintiff failed to allege the existence of a contract between the Postal Service and the Union. Nor does he allege any breach of such an agreement by his employer, the Postal Service. Finally, he fails to allege any specific facts demonstrating a breach by the union of its duty of representation. Therefore, Plaintiff has failed to state a claim under § 185 as to either the Postal Service or the Union and these claims are dismissed, with leave to amend. In order to remedy this deficiency in his amended complaint, Plaintiff must allege that a contract existed between the Postal Service and the Union and that the agreement covered his own employment. Furthermore, Plaintiff must allege facts that indicate to this Court precisely how the Postal Service breached that contract and how the Union breached its duty of fair representation.
In amending his complaint, Plaintiff may also wish to address the following potential problems with his § 185 claims. First, the claims may be barred for failure to exhaust any grievance procedures that may be contained in the collective-bargaining agreement, assuming there is one. Generally, one must exhaust any grievance procedures contained in a collective bargaining agreement before an action may be brought under § 185. Vaca v. Sipes, 386 U.S. 171, 184-85 (1981). Although courts have recognized some exceptions to this rule, see, e.g., Carr v. Pacific Maritime Ass'n, 904 F.2d 1313, 1319 (9th Cir. 1990); Scoggins v. Boeing Co., 742 F.2d 1225, 1229 (9th Cir. 1984), there is no indication in the complaint that any of these exceptions apply here. In his amended complaint, Plaintiff should plead facts indicating that he exhausted his administrative remedies or that his claim falls within an exception to the general rule of exhaustion.
Because the facts alleged in Plaintiff's complaint are insufficient to allow the Court to make any final determinations on these issues, the Court does not dismiss Plaintiff's § 185 claims on the basis of these potential problems, which it raises here only in order to assist the Plaintiff in amending his complaint.
Second, the Court is concerned that Plaintiff's claims may be untimely. Although § 185 does not provide an express statute of limitations, the United States Supreme Court has held that "hybrid" § 185 claims are governed by the six-month statute of limitations for unfair labor practice claims, found in 29 U.S.C. § 160(b). DelCostello, 462 U.S. at 169. This six-month period begins to accrue when a plaintiff first becomes aware of the alleged breach of duty of fair representation. Galindo v. Stoody Company, 793 F.2d 1502, 1509 (9th Cir. 1986). The statute of limitations may be tolled while a plaintiff pursues administrative remedies or if a plaintiff's mental disability impedes one's cognizance of the claim. Id. at 1510; Grant v. McDonnell Douglas Corp., 163 F.3d 1136, 1138 (9th Cir. 1998) (holding that even if equitable tolling applied to a § 185 hybrid claim, the plaintiff's evidence failed to explain why he did not pursue his claim within the six-month limitations period). Here, it appears that the statute of limitations may have expired, barring Plaintiff's § 185 claims. In his amended complaint, Plaintiff should plead facts that suggest otherwise or indicate that the statute of limitations on these claims were tolled.
F. Intentional Infliction of Emotional Distress
Plaintiff asserts a state law tort claim against all Defendants for intentional infliction of emotional distress ("IIED"), alleging that "these acts, conduct, and behavior of defendants . . . were performed knowingly, intentionally, and maliciously." Complaint at 13-14. In light of this Court's dismissal of all of Plaintiff's federal claims, this Court declines to exercise jurisdiction over Plaintiff's state law claim, which is dismissed as to all Defendants without prejudice. However, because Plaintiff may amend his complaint to state a federal claim, the Court addresses Plaintiff's state law claim.
In California, "[a] cause of action for intentional infliction of emotional distress must allege facts showing outrageous conduct which is intentional or reckless and which is outside the bounds of decency." Christensen v. Pasadena Crematorium of Altadena, 54 Cal.3d 868, 904 (1992); Sabow v. United States, 93 F.3d 1445, 1454 (9th Cir. 1996) (citing Christensen). Plaintiff asserts that co-worker Hernandez informed supervisor Garth that Plaintiff used racial slurs and that Garth, in turn, conducted a "Just Cause" interview with Plaintiff in the presence of Calmese, the Union representative. These allegations alone do not constitute "outrageous conduct." In order to cure this deficiency, Plaintiff must allege facts that amount to "outrageous conduct."
Regardless of Plaintiff's factual allegations, when an IIED claim is "substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract," it is preempted by 29 U.S.C. § 185. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985); see also Stone v. Writer's Guild of America West, 101 F.3d 1312, 1314 (9th Cir. 1996) (holding that an intentional infliction of emotional distress claim was preempted by § 185 and thus barred by the six-month statute of limitations). If Plaintiff amends his § 185 claim to allege the existence of a contract, § 185 may preempt Plaintiff's IIED claim. To the extent his claim is preempted by § 185, he may also encounter the exhaustion and statute of limitation problems discussed above.
In addition, there may be other problems with this tort claim which Plaintiff will need to address when he amends his complaint. First, Plaintiff may be barred from bringing his IIED claim for failure to exhaust administrative remedies. Under the Postal Reorganization Act, which makes the FTCA applicable to the Postal Service, a plaintiff must exhaust administrative remedies before he may bring a tort action against the Postal Service in federal court. 39 U.S.C. § 409(c); 28 U.S.C. § 2675. Plaintiff needs to allege either that he exhausted his administrative remedies or facts indicating that his claim falls within an exception to the general rule of exhaustion. See, e.g., Carr v. Pacific Maritime Ass'n, 904 F.2d 1313, 1317 (9th Cir. 1990) (holding that the plaintiff failed to exhaust administrative remedies when he alleged the futility of exhaustion, but had failed to present his futility argument to the administrative body before filing the lawsuit).
Again, the facts alleged in Plaintiff's complaint are insufficient to make any final determination on these issues at this time. The Court raises these issues only to assist the Plaintiff in amending his complaint.
Second, under the FTCA, the waiver of sovereign immunity applies only to the United States. 28 U.S.C. § 1346(b). This waiver does not extend to any other federal government defendants. See Kennedy v. United States Postal Service, 145 F.3d 1077, 1078 (9th Cir. 1998) (holding that the plaintiff's employment-related tort claims were improperly filed against the Postal Service). Therefore, the Postal Service and Department of Labor are improper Defendants with respect to Plaintiff's tort claim. Instead, the United States should be named as a Defendant if Plaintiff pursues an IIED claim based upon the actions of either the Postal Service or the Department of Labor.
Finally, the FTCA establishes immunity for federal employees when they commit common law torts within the scope of their employment. 28 U.S.C. § 2679. Here, Plaintiff has alleged no facts suggesting that Garth and Hernandez were acting outside the scope of their employment, and therefore it is likely that they are immune from personal liability under the FTCA. See, e.g., Farmers Insurance Group v. County of Santa Clara, 11 Cal.4th 992, 1005 (1995) (holding that a deputy sheriff acted outside of his employment when he sexually harassed three female co-workers because the offense was self-motivated); see also Whitson v. Oakland Unified School District, 123 Cal.App.3d 133, 139 (1981) (holding that sexual molestation was outside of a custodian's scope of employment). Plaintiff should allege facts indicating that Garth and Hernandez acted outside the scope of their employment if he amends the complaint to pursue these claims against these defendants.
G. Proper Representation
A plaintiff who is not represented by counsel may proceed with an action in pro se in federal court. 28 U.S.C. § 1654. An "incompetent person" also has the right to a guardian ad litem that will represent his interests. Fed.R.Civ.P. 17(c). However, a plaintiff cannot assign his right to appear in pro se to a guardian. See Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (holding that a father could not represent his minor son in an action alleging constitutional violations without retaining counsel). In arriving at its holding, the Johns court pointed out that it is not in the interest of incompetents that they be represented by non-attorneys. Id. at 876. When one is incompetent and has a claim requiring adjudication, one must have trained legal assistance so one's rights may be fully protected. Id.
Therefore, if Plaintiff amends his complaint, he has the following options: (1) he may retain a lawyer; (2) he may seek an order from this Court appointing a guardian ad litem, who must then retain counsel; or (3) he may continue to proceed in pro se and personally sign the amended complaint.
V. CONCLUSION
Plaintiff's Application To Proceed In Forma Pauperis is GRANTED. The Court FURTHER ORDERS that for the reasons stated above, all of Plaintiff's federal law claims are hereby DISMISSED with leave to amend within thirty (30) days from the date of this Order for failure to state a claim upon which relief can be granted as to all Defendants. Having dismissed all of Plaintiff's federal law claims, the Court declines to exercise supplemental jurisdiction over Plaintiff's state law claim for intentional infliction of emotional distress and on this basis, the state law claim is DISMISSED as to all Defendants. Assuming Plaintiff amends his complaint to state a federal law claim, Plaintiff will also be required to amend his state law claim in accordance with this order to state a valid claim. If Plaintiff amends his complaint, pursuant to this order, to state any valid federal law claim, service of the complaint upon Defendants will be ordered at that time. The Clerk is directed to close the file in this case if an amended complaint is not filed in this case within thirty (30) days.
IT IS SO ORDERED.