Abeyta v. United States Postal Service

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Danny Abeyta, No. CV-21-00331-TUC-RM Plaintiff, ORDER v. United States Postal Service, Defendant.

17 On September 14, 2021, the Court issued an Order dismissing Plaintiff’s Complaint with leave to amend because the Complaint failed to state a basis for federal jurisdiction. (Doc. 5.) On October 29, 2021, Plaintiff filed a First Amended Complaint (“FAC”). (Doc. 6.) The Court will dismiss the FAC with leave to amend.

21 I. Statutory Screening of Complaints 22 The Prison Litigation Reform Act states that a district court “shall dismiss” an in forma pauperis complaint if, at any time, the court determines that the action “is frivolous or malicious” or that it “fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2). “[S]ection 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners.” Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc); see also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam).

1 A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the- defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. 7 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other “more likely explanations” for a defendant’s conduct. Id. at 681.

17 As the United States Court of Appeals for the Ninth Circuit has instructed, courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A complaint filed by a pro se litigant “must be held to less stringent standards than formal pleadings drafted by lawyers.” Id. (internal quotation omitted). If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez, 203 F.3d at 1127-29.

24 II. Plaintiff’s First Amended Complaint 25 In his one-count FAC, Plaintiff alleges that he was injured at the United States Post Office in Safford, Arizona when a broken door hit his hand. (Doc. 6 at 6.) As a result of his injuries, he is seeking $15,000 in damages. (Id.) Plaintiff alleges federal question || jurisdiction pursuant to 28 U.S.C. §§ 2671-2680, the Federal Tort Claims Act (“FTCA”).

2\| Ud. at 3.)

3 The United States is the only proper defendant in an action brought pursuant to the FICA. 28 U.S.C. §§ 1346(b), 2679(a) and (b); Allen v. Veterans Admin., 749 F.2d 1386, || 1388 (9th Cir. 1984). “Individual agencies of the United States may not be sued.” Allen, 6|| 749 F.2d at 1388. Thus, because Plaintiff has not sued the United States, the Court will || dismiss the First Amended Complaint with leave to amend.

8 IT IS ORDERED that the First Amended Complaint (Doc. 6) is dismissed with 9|| leave to amend. Plaintiff shall file a Second Amended Complaint within forty-five (45) || days of the date this Order is filed. If Plaintiff fails to file a Second Amended Complaint |} within forty-five (45) days, the Clerk of Court shall enter a judgment of dismissal of this || action without prejudice.

13 Dated this 10th day of November, 2021.

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