Opinion
CV 21-01504 PHX CDB
09-15-2021
Kyle Thompson, Plaintiff, v. United States of America, named as U.S. Government, United States Department of Justice, Defendants.
HONORABLE STEPHEN M. McNAMEE JUDGE
REPORT AND RECOMMENDATION
Camille D. Bibles United States Magistrate Judge
Plaintiff, who is pro se in this matter, docketed the Complaint and a motion to proceed in this matter in forma pauperis on September 2, 2021. Defendants have not been served nor appeared.
Plaintiff's motion for leave to proceed in forma pauperis avers Plaintiff, who is 48 years of age and a high school graduate, lives alone and has no income, assets, or expenses. (ECF No. 2).
Plaintiff names as Defendants the “U.S. Government” and the “U.S. Department of Justice.” (ECF No. 1 at 2). Plaintiff, a resident of Arizona, asserts the Court has jurisdiction over his claims pursuant to diversity of the parties. (ECF No. 1 at 3). Plaintiff seeks $23,000,000,000,000, based solely on the following allegations:
. . . Over 400 years, my ancestors slaved and built without any wages. We were promised compensation, and we have yet to receive cash payments.
You just recently officiated a Federal Holiday (Juneteenth) acknowledging slavery existed under the United States Government.
III. The United States Government is responsible for restitution and reparations for American Slavery of my ancestors.
IV. Due to our ancestor's unpaid slave labor, punitive damages are due.(ECF No. 1 at 5).
Because Plaintiff seeks leave to proceed without prepayment of costs or fees, the Court is required to review Plaintiff's complaint and to dismiss it if the allegations are frivolous, malicious, fail to state a claim on which relief may be granted, or if Plaintiff “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). See also Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Screening under § 1915(e)(2) is performed under the same standard of review as Federal Rule of Civil Procedure 12(b)(6). See Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Under Rule 12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint that fails to allege a cognizable legal theory or alleges insufficient facts under a cognizable legal theory fails to state a plausible claim for relief. See UMG Recordings, Inc. v. Shelter Cap. Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013). Although the Court must accept as true allegations of material fact, it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Wood v. Moss, 572 U.S. 744, 755 n.5 (2014). Conclusory statements, “unadorned, the-defendant-unlawfully-harmed-me accusation[s], ” and factual allegations that only permit the Court to infer the “possibility of misconduct” fall short of meeting the plausibility standard. Iqbal, 556 U.S. at 678-79. See also Starr v. Baca, 652 F.3d 1202, 1216-17 (9th Cir. 2011); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
To be allowed to proceed on a complaint, the plaintiff must establish the Court's jurisdiction over their claim(s). A plaintiff may establish the Court's subject matter jurisdiction in one of two ways. First, the plaintiff may assert that the defendant violated the Constitution, a federal law, or treaty of the United States. See 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”). Alternatively, a plaintiff may invoke the Court's “diversity jurisdiction, ” which applies “where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different States.” 28 U.S.C. § 1332(a)(1) (emphasis added).
The main defect in the Complaint is its failure to establish the Court's subject-matter jurisdiction. Plaintiff fails to properly allege diversity jurisdiction, as Plaintiff and the United States government are not “citizens of different states.” Additionally, unless waived, claims against the United States and federal agencies are barred by sovereign immunity. See Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”); Balser v. Department of Just., Off. of U.S. Trust., 327 F.3d 903, 907 (9th Cir. 2003) (holding that sovereign immunity protects the Department of Justice from suit). As a sovereign, the United States is immune from suit unless it has waived immunity. A waiver of sovereign immunity must be “unequivocally expressed, ” and any limitations and conditions upon the waiver “must be strictly observed and exceptions thereto are not to be implied.” Lehman v. Nakshian, 453 U.S. 156, 160-61 (1981) (citations omitted). To the extent Plaintiff intends to assert a claim for damages against the Department of Justice for violating his constitutional rights, that claim is also barred by the doctrine of sovereign immunity. See Meyer, 510 U.S. at 486 (declining to recognize a direct action for damages against federal agencies); Thomas-Lazear v. Federal Bureau of Investigation, 851 F.2d 1202, 1207 (9th Cir. 1988) (“the United States has not waived its sovereign immunity in actions seeking damages for constitutional violations”).
Furthermore, to the extent Plaintiff might assert a claim based on any violation of his ancestors' federal constitutional rights, a plaintiff may not be awarded damages based on the violation of another individual's federal constitutional rights. The “case or controversy” requirement of Article III of the United States Constitution limits the federal courts' jurisdiction by requiring that plaintiffs have “standing” to bring the lawsuit. See, e.g., Alaska Right to Life Pol. Action Comm. v. Feldman, 504 F.3d 840, 848-49 (9th Cir. 2007). In order to have standing, a party “must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975). A plaintiff lacks standing to bring suit of any kind based on harms done to others. Id. See also McCollum v. California Dep't of Corr. & Rehab., 647 F.3d 870, 879 (9th Cir. 2011); Fleck & Assocs., Inc. v. City of Phx., 471 F.3d 1100, 1105 (9th Cir. 2006).
Additionally, a complaint must contain sufficient factual allegations to give the defendant fair notice of the claim and the grounds upon which it rests. Twombly, 550 U.S. at 555. Other than the fact of the Plaintiff's ancestor's slavery and the establishment of a Juneteenth federal holiday, there are no factual allegations in the Complaint that identify a basis for Plaintiff's claim for monetary damages and Plaintiff's reference to the injustice of the slavery of his ancestors is not sufficient to establish an entitlement to any monetary damages. It is the duty of Plaintiff to articulate his claim and the legal theory under which his claim is brought, and neither the Court nor the Defendants are required to try to decipher what claim(s) Plaintiff is asserting. Because one of the primary functions of a complaint is to provide the defendants with notice of the legal claims asserted against them and the factual basis for those claims, a complaint written without clarity and specificity as to who is being sued and for what, “fails to perform the essential functions of a complaint.” McHenry v. Renne, 84 F.3d 1172, 1178-80 (9th Cir. 1996).
Because the Complaint does not properly state a claim for relief over which the Arizona District Court has jurisdiction, regardless of whether Plaintiff has met the standard for proceeding in forma pauperis, the Court is within its discretion to dismiss the Complaint without prejudice. See O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990); Bennett v. People of the State of Calif., 406 F.2d 36, 39 (9th Cir. 1969); Spencer v. Doe, 139 F.3d 107, 111 (2d Cir. 1998). The Court may dismiss the Complaint without affording Plaintiff the opportunity to amend, because any attempt to amend the Complaint to assert the United States government is liable to Plaintiff for monetary damages based on the enslavement of his ancestors would be futile. E.g., Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996).
Accordingly, upon screening pursuant to 28 U.S.C. §1915(e)(2), IT IS RECOMMENDED that Plaintiffs Complaint and this matter be dismissed without prejudice.
IT IS FURTHER RECOMMENDED that the motion to proceed in forma pauperis at ECF No. 2 be denied as moot.
This recommendation 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) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).