Opinion
3:22-cv-00098-ART-CSD
06-07-2022
MARK LH TUCKER SHARP, Plaintiff, v. GRANITE CONSTRUCTION, et al., Defendants.
ORDER
ANNE R. TRAUM, UNITED STATES DISTRICT JUDGE.
Before the Court is the Magistrate Judge's report recommending dismissal of this action without prejudice for failure to file a complaint. (ECF No. 5.) Because this Court construes Plaintiff Sharp's initial filing (ECF No. 1) as a pro se complaint stating a cognizable tort claim against a government entity and other defendants, it rejects the report recommending dismissal and grants Sharp leave to amend his Complaint. Failure to file an amended complaint within 90 days could result in dismissal of this action.
Sharp filed a Complaint on February 18, 2022, by commencing this “civil action” alleging that that he was hit by an Amtrak train while he was in a concrete truck during his employment with 3D Concrete. In his initial filing, Sharp requested additional time to pay fees and file his complaint because he currently is detained pretrial and because the lawyer whom he tried to retain declined to represent him. The Magistrate Judge construed Sharp's initial pleading simply as a motion, which it denied, and informed Sharp by letter that he had 30 days to file a complaint and either pay the full $402 filing fee or apply to proceed in forma pauperis (“IFP”). (ECF No. 3.) Mr. Sharp paid the filing fee, which the Magistrate Judge acknowledged, but did not file any new documents, so the Magistrate Judge recommended that his case be dismissed without prejudice for failure to file a complaint. This Court finds that Sharp's initial pleading is a complaint that survives screening under 28 U.S.C. § 1915A.
This Court must screen a civil complaint by a prisoner like Sharp who “seeks redress from a governmental entity.” 28 U.S.C. § 1915A(a). A complaint must contain “a short and plain statement of the claim showing that [Plaintiff] is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Each allegation must be simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1). “A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances.” Fed.R.Civ.P. 10(b). “[E]ach claim founded on a separate transaction or occurrence . . . must be stated in a separate count.” Id.
A §1915A screening order must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). Because Sharp is proceeding pro se, his pleadings must be “construed liberally” and he must be afforded “the benefit of any doubt.” See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (internal citation omitted)); cf. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (stating pro se complaints are construed liberally and “may only be dismissed if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”).
Sharp states a cognizable tort claim against Amtrak by alleging that he was “hit by an Amtrak train” on “February 20, 2020.” (ECF No. 1.) This statement, though minimal, alleges a tort claim against the National Railroad Passenger Corporation known as “Amtrak.” This Court has jurisdiction over a suit against Amtrak. See 28 U.S.C. § 1349 (providing federal court jurisdiction over federally chartered corporation of which the United States owns more than 50 percent of the capital stock); Hollus v. Amtrak Northeast Corridor, 937 F.Supp. 1110, 1114 (D.N.J. 1996) (holding that Amtrak is subject to suit in federal court pursuant to 28 U.S.C. § 1349); Moore v. City of Merced, No. No. 1901183, 2019 WL 6467324, at *1 (E.D. Cal. Dec. 2, 2019)(noting that courts routinely accept as well-established that the United States owns more than one half of Amtrak's capital stock). Amtrak is a government entity that is not immune from damages. See Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 391 (1995) (holding that Amtrak is a government entity and not immune from damages suits, citing Sentner v. Amtrak, 540 F.Supp. 557, 560 (D.N.J. 1982)).
Though his Complaint alleges a tort claim against Amtrak and thus survives screening, Sharp will be given leave to amend his Complaint to address its deficiencies. Under the Federal Rules of Civil Procedure (“FRCP”) 15, leave to amend a pleading “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). With respect to Amtrak, an amended complaint should provide additional detail regarding the February 20, 2020 incident, explaining what happened, what Amtrak did or failed to do that resulted in harm to Sharp and what damages or other relief he seeks. If Sharp seeks to add any claims against the Amtrak, he should number each claim and write a short and plain statement of each claim in a separate paragraph. Sharp must file an amended complaint within 90 days of this Order and must provide additional information consistent with this Order. Failure to amend the complaint may result in dismissal of this action.
Sharp also names Granite Construction and Union Pacific Railroad as defendants but his Complaint is deficient because it fails to explain what these defendants did or failed to do that caused him harm and what relief Sharp is requesting. See FRCP 20(a)(2) (allowing a plaintiff to join multiple defendants to a lawsuit where the right to relief arises out of the same “transaction, occurrence, or series of transactions” and “any question of law or fact common to all defendants will arise in the action.”) Those additional facts will be necessary to determine if the Court has jurisdiction over these defendants and Sharp has stated a cognizable claim against them.
To summarize, while Sharp's Complaint survives screening, he must amend his Complaint to cure its deficiencies and failure to do so may result in dismissal of this action. An amended complaint must:
• State what happened and how Sharp was injured;
• State what each of the defendants did or failed to do that caused Sharp harm; and
• State the relief Sharp seeks.
If more than one claim is asserted against any defendant, Sharp should number each claim and write a short and plain statement of each claim in a separate paragraph. The Court provides Sharp with a sample complaint form to use or to serve as a guide for his amended complaint.
Additionally, because Sharp is currently detained, he is advised of the following:
1. If Sharp moves, he must update the Court with any new address within sixty (60) days from the date he changes addresses, or this case will be subject to dismissal without prejudice.
2. If Sharp completes the application to proceed in forma pauperis and it is granted, the Court will order the United States Marshall to order the Amended Complaint on defendant(s). Fed.R.Civ.P. 4(c)(3).
3. If Sharp is not proceeding in forma pauperis and is unable to serve defendants in compliance with FRCP 4, Sharp can request that service be made by the United State Marshal and the Court will consider his request. Fed.R.Civ.P. 4(c)(3).
It is therefore ordered that the R&R in this case (ECF No. 5) is rejected.
It is further ordered that Sharp has 90 days from the date of this Order to amend his Complaint, which should be entitled “First Amended Complaint” using the same case number.
The Clerk of the Court is kindly directed to send Sharp an application to proceed in forma pauperis and a sample “Pro Se 1” Complaint for a Civil Case to:
Mark Tucker Sharp
Register Number: 75958-509
FCI Herlong
741-925 Access Road A-25
Herlong, CA 96113
Sharp need not at this time attempt service on any defendant and need not request waiver of service. Upon receipt of the above-described documents, the Court will address the issue of service pursuant to Federal Rule of Civil Procedure 4.