(PS) Grill v. United States of America

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA JAMES S. GRILL, No. 2:20-cv-641-TLN-JDP PS 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS THE UNITED STATES, and the U.S.D.A.

DEPARTMENT OF AGRICULTURE, FOREST SERVICE, and Does 1-20, 16 Defendants.

18 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 His declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2.

20 Accordingly, the request to proceed in forma pauperisis granted. 28 U.S.C. § 1915(a).

21 Determining that plaintiff may proceed in forma pauperis does not complete the required inquiry. Pursuant to § 1915(e)(2), the court must dismiss the caseat any time if it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. As discussed below, plaintiff’s complaint potentially states a cognizable claim under the Quiet Title Act against defendant United States, but his claim against defendant United States Department of This case, in which plaintiff is proceeding in propria persona, was referred to the undersigned under Local Rule 302(c)(21). See28 U.S.C. § 636(b)(1).

1 Agriculture’s Forest Service (“Forest Service”) must be dismissed.

2 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

5 Corp. v. Twombly, 550 U.S. 544, 554, 562-63 (2007) (citing Conley v. Gibson, 355 U.S. 41 6 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint’s allegations are true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories.

12 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

13 Under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)).

21 Plaintiff brings this action under the Quiet Title Act (“QTA”), 28 U.S.C. § 2409a, against defendants United States of Americaand the Forest Service. Liberally construed, the complaint alleges that in 1992, plaintiff purchased real property located in Nevada County, California. The property, which is surrounded by land owned by Forest Service, is allegedly accessible by an easement that crosses over Forest Service land. Plaintiff alleges that the easement is established under (1) Revised Statute 2477, (2) the Alaska National Interest Lands Conservation Act, 16 1 U.S.C. § 3101 et seq., and (3) the common law doctrine of easement by necessity.2 The Forest Service previously granted plaintiffa special use permit to access to his property. Id. at 3, 20.

3 Plaintiffclaims, however, that the Forest Service subsequently revoked his permit and is denying him access to his land. Id. at 1, 4.

5 For purposes of screening, these allegations potentially state acognizable claim against the United States under the QTA. See28 U.S.C. § 2409a(d) (a complaint brought under the QTA must set forth “the nature of the right, title, or interest which the plaintiff claims in the real property, the circumstances under which it was acquired, and the right, title, or interest claimed by the United States.”).

10 Plaintiff, however, cannot maintain his QTA claim against the Forest Service. The QTA is the “exclusive means by which adverse claimants [can] challenge the United States’title to real property,” and the act waives sovereign immunity only as to the United States. Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 286 (1983); see28 U.S.C. § 2409a(a) (“The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest.”). Thus, the United States is the only proper defendant for plaintiff’s QTA claim. Accordingly, his claim against the Forest Service must be dismissed without leave to amend. See Noll v. Carlson, 809 18 F.2d 1446, 1448 (9th Cir. 1987) (while the court ordinarily would permit a pro se plaintiff to amend, leave to amend should not be granted where it appears amendment would be futile).

20 Accordingly,it is hereby ORDERED that: 21 1. Plaintiff’s complaint alleges, for screening purposes, a potentially cognizable claim under the Quite Title Act against defendant United States of America.

23 2. The Clerk of Court shall send plaintiff one USM-285 form, one summons, a copy of the complaint, this court’s scheduling order, and the forms providing notice of the magistrate 25 2 The complaint purports to allege three claims styled: (1) “Violation of Congressional Railroad Grant Act of 1982,” (2) Violation of Congressional RS 2477 Act of1866,” and (3) “Violation of the Congressional ANILCA Act of 1980.” ECF No. 1 at 10-12. But each of plaintiff’s claims merely articulates a distinct theory for why plaintiff allegedly has an easement over land owned by the government. Accordingly, the court construes the complaint as only asserting one claim under the QTA.

1 judge’s availability to exercise jurisdiction for all purposes.

2 3. Plaintiff is advised that the U.S. Marshal will require: 3 a. One completed summons; 4 b. One completed USM-285 form for defendant United States of America; 5 c. A copy of the complaint for defendant United States of America, with an extra 6 copy for the U.S. Marshal; and 7 d. A copy of this court’s scheduling order and related documents for defendant.

8 4. Plaintiff shall supply the United States Marshal, within 14 days from the date this order is filed, all information needed by the Marshal to effect service of process, and shall, within 14 days thereafter, file a statement with the court that said documents have been submitted to the United States Marshal.

12 5. The U.S. Marshal shall serve process, with copies of this court’s scheduling order and related documents, within 90 days of receipt of the required information from plaintiff, without prepayment of costs. The United States Marshal shall, within 14 days thereafter, file a statement with the court that said documents have been served. If the U.S. Marshal is unable, for any reason, to effect service of process on defendant, the Marshal shall promptly report that fact, and the reasons for it, to the court.

18 6. The Clerk of Court shall serve a copy of this order on the United States Marshal, 501 “I” Street, Sacramento, CA 95814 (tel. 916-930-2030).

20 7. Failure to comply with this order may result in a recommendation that this action be dismissed for failure to prosecute and/or comply with court orders.

22 Further, it is RECOMMENDED that plaintiff’s claim against defendant Forest Service be dismissed without leave to amend.

24 These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections wOAOe 2 CUVEE ERIN VR MMU PR ee YY VI || within the specified time may waive the right to appeal the District Court’s order. Turner v. || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).

3 || Dated: October 5, 2020 WN pana Caton _ 5 STATE GISTRATE JUDGE