Opinion
1:24-cv-00028
07-08-2024
JERRY ERNEST LOPEZ, Plaintiff, v. F.B.I. OF SALT LAKE CITY; and UNITED STATES OF AMERICA, Defendants.
District Judge Jill N. Parrish
REPORT AND RECOMMENDATION TO DISMISS ACTION PURSUANT TO 28 U.S.C. § 1915
Dapnne A. Oberg United States Magistrate Judge
Plaintiff Jerry Ernest Lopez, proceeding without an attorney and without paying a filing fee,filed this action against “F.B.I. of Salt Lake City” and the United States of America.After screening Mr. Lopez's complaint under 28 U.S.C. § 1915(e)(2)(B) and identifying deficiencies, the court invited Mr. Lopez to file an amended complaintand noted that failure to do so could result in dismissal of this action.Mr. Lopez did not file an amended complaint by the deadline in the court's order or anytime thereafter. Because Mr. Lopez's complaint fails to state a plausible claim for relief and further opportunities to amend would be futile, the undersignedrecommends the district judge dismiss this action pursuant to 28 U.S.C. § 1915(e)(2)(B).
(See Order Granting Mot. to Proceed In Forma Pauperis and Notice of Screening Under 28 U.S.C. § 1915, Doc. No. 4.)
(Compl., Doc. No. 5.)
(See Mem. Decision and Order Permitting Am. Compl., Doc. No. 13.)
(Id. at 7.)
This case is referred to the undersigned magistrate judge under 28 U.S.C. § 636(b)(1)(B). (See Doc. No. 12.)
LEGAL STANDARDS
When a court authorizes a party to proceed without paying a filing fee, the court must dismiss the case if it determines the complaint “fails to state a claim on which relief may be granted” or “seeks monetary relief against a defendant who is immune from such relief.” In determining whether the complaint fails to state a claim, the court uses the standard for analyzing a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.To avoid dismissal under Rule 12(b)(6), a complaint must allege “enough facts to state a claim to relief that is plausible on its face.” The court accepts well-pleaded factual allegations as true and views the allegations in the light most favorable to the plaintiff, drawing all reasonable inferences in the plaintiff's favor.But the court need not accept the plaintiff's conclusory allegations as true. “[A] plaintiff must offer specific factual allegations to support each claim.”
Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007).
Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)).
Wilson v. Montano, 715 F.3d 847, 852 (10th Cir. 2013).
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).
Because Mr. Lopez proceeds without an attorney (pro se), his filings are liberally construed and held “to a less stringent standard than formal pleadings drafted by lawyers.”Still, pro se plaintiffs must “follow the same rules of procedure that govern other litigants.” For instance, a pro se plaintiff “still has the burden of alleging sufficient facts on which a recognized legal claim could be based.” While the court must make some allowances for a pro se plaintiff's “failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements,” the court “will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.”
Hall, 935 F.2d at 1110.
Garrett v. Selby, Connor, Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (internal quotation marks omitted).
Jenkins v. Currier, 514 F.3d 1030, 1032 (10th Cir. 2008) (internal quotation marks omitted).
Hall, 935 F.2d at 1110.
Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009) (internal quotation marks omitted).
ANALYSIS
Mr. Lopez filed a form civil rights complaint naming “F.B.I. of Salt Lake City” and the United States as defendants. As explained below, because Mr. Lopez fails to state a claim and further opportunities to amend would be futile, the undersigned recommends dismissal.
(See Compl. 1, Doc. No. 5.)
Mr. Lopez checked a box on the complaint form indicating he is bringing claims under 42 U.S.C. § 1983. He describes his claims as “violations of the right to government services” and “the right to be free from discrimination.” Mr. Lopez's supporting allegations are as follows, verbatim: “Experienced harassment due to civil suits in federal court reported to courthouse and had prosecutor and directed to F.B.I. when reported 11 times in Salt Lake and 4 times in Missouri went uninvestigated due to me being a pro se prosecutor.” He also alleges: “If not discriminated upon due to pro se status and defendants in civil suits being law enforcement I would not [have] experienced harassment resulting in great bodily harm.”He seeks damages of $20 million.
(See id.)
(Id. at 4.)
(Id.)
(Id.)
(Id. at 6.)
Mr. Lopez's complaint fails to state a claim under 42 U.S.C. § 1983 because the defendants are not state actors. To state a § 1983 claim, “a plaintiff must allege (1) deprivation of a federal right by (2) a person acting under color of state law.” The United States and the FBI (a federal agency) are not proper defendants under § 1983.Mr. Lopez also checked boxes on the complaint form indicating the defendants are not acting under color of state law.
Watson v. Kansas City, 857 F.2d 690, 694 (10th Cir. 1988).
See Vacek v. Court of Appeals, No. CIV 07-1187, 2008 U.S. Dist. LEXIS 144667, at *5 (D.N.M. Apr. 28, 2008) (unpublished) (“[T]he FBI is not a proper defendant in a § 1983 case.”).
(See Compl. 4, Doc. No. 5.)
Mr. Lopez also fails to state a claim pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. Bivens permits a private action for damages against federal officials for constitutional violations in certain contexts. But a “Bivens claim can be brought only against federal officials in their individual capacities. Bivens claims cannot be asserted directly against the United States, federal officials in their official capacities, or federal agencies.” The United States and its agencies are protected by sovereign immunity from such claims. Thus, the United States and the FBI are also improper defendants under Bivens.
403 U.S. 388 (1971).
See Chapoose v. Hodel, 831 F.2d 931, 935 (10th Cir. 1987) (“A Bivens action seeks to impose personal liability and damages on a federal official for the violation of a constitutional right.”); see also Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (describing Bivens actions as a “federal analog” to § 1983 suits in the limited settings where Bivens applies).
Smith, 561 F.3d at 1099 (citations omitted).
See Chapoose, 831 F.2d at 935; see also Johnson v. Gallagher, No. 17-cv-02993, 2018 U.S. Dist. LEXIS 232483, at *11 (D. Colo. Apr. 5, 2018) (unpublished) (“The United States has not waived sovereign immunity for itself under Bivens for constitutional tort claims.”).
See Vacek, 2008 U.S. Dist. LEXIS 144667, at *5 (noting the FBI is not a proper defendant “in a case alleging violations of constitutional rights by federal employees”).
Mr. Lopez's allegations do not appear to support any other cognizable cause of action against the named defendants. Because Mr. Lopez fails to state a plausible claim for relief and seeks damages against immune defendants, the complaint must be dismissed.“Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.” The court previously identified the deficiencies described above and permitted Mr. Lopez to amend his complaint to correct them, but he failed to do so. Therefore, further opportunities to amend would be futile, and dismissal is necessary.
See 28 U.S.C. § 1915(e)(2)(B)(ii)-(iii).
Kay, 500 F.3d at 1217 (internal quotation marks omitted).
(See Mem. Decision and Order Permitting Am. Compl., Doc. No. 13.)
RECOMMENDATION
Where Mr. Lopez's complaint fails to state a plausible claim for relief and further opportunities to amend would be futile, the undersigned RECOMMENDS the district judge dismiss this action pursuant to 28 U.S.C. § 1915(e)(2)(B). The court will send this Report and Recommendation to Mr. Lopez, who is notified of his right to object to it. Any objection must be filed within fourteen days of service. Failure to object may be considered a waiver of objections.
BY THE COURT: