Opinion
3:23-cv-5079-DGE
03-20-2023
LOA FRUEAN et al., Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendants.
NOTED FOR: APRIL 7, 2023
REPORT AND RECOMMENDATION
Theresa L. Fricke United States Magistrate Judge
This matter comes before the Court on plaintiffs' application to proceed in forma pauperis (IFP) and proposed complaint. Dkt. 1, 4, 5. This matter has been referred for review of the IFP application to the undersigned Magistrate Judge. Mathews, Sec'y of H.E.W. v. Weber, 423 U.S. 261 (1976); 28 U.S.C. § 636(b)(1)(B); Local Rule MJR 4(a)(4).
Plaintiffs, proceeding pro se, bring this action against defendant, the United States Postal Service (“USPS”), alleging defendant was negligent in returning a box to sender. Dkt. 1-1 at 5. As discussed further below, plaintiffs have failed to state a claim upon which relief may be granted and the deficiencies cannot be cured by amendment. Accordingly, the Court recommends that plaintiffs' in forma pauperis action be denied, their complaint be dismissed without prejudice, and the case be closed.
FACTUAL BACKGROUND
Plaintiffs bring this action against USPS for alleged negligence. Dkt 1-1 at 5. Plaintiffs are seeking $335.00 because a box was returned to sender. Id.
DISCUSSION
The district court may permit indigent litigants to proceed in forma pauperis upon completion of a proper affidavit of indigency. 28 U.S.C. § 1915(a). However, the Court has broad discretion in denying an application to proceed in forma pauperis. Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963).
A federal court may dismiss sua sponte pursuant to Fed.R.Civ.P. 12(b)(6) when the plaintiff has not stated a claim upon which relief may be granted. See Omar v. Sea Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (“A trial court may dismiss a claim sua sponte under Fed.R.Civ.P. 12(b)(6) ... Such a dismissal may be made without notice where the claimant cannot possibly win relief.”). See also Mallard v. United States Dist. Court, 490 U.S. 296, 307 (1989) (there is little doubt a federal court would have the power to dismiss frivolous complaint sua sponte, even in absence of an express statutory provision). A complaint is frivolous when it has no arguable basis in law or fact. Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).
A. Subject matter jurisdiction
The only claim raised is a negligence allegation about the failure of the USPS to properly deliver a package. Dkt. 1-1.
Plaintiffs' allegations may be construed as a claim for the tort of negligence, filed against the United States under the Federal Tort Claims Act (FCTA). See 28 U.S.C. § 2674 (partially waiving sovereign immunity such that the United States may be “in the same manner and to the same extent as a private individual under like circumstances”).
However, Section 2680 of the FTCA specifically retains the United States' sovereign immunity in certain exceptions; if a plaintiff's tort claim falls within § 2680's exceptions, the Court lacks subject matter jurisdiction. Snyder & Assocs. Acquisitions LLC v. United States, 859 F.3d 1152, 1157, amended on reh'g, 868 F.3d 1048 (9th Cir. 2017).
One of the exceptions bars “any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matters.” 28 U.S.C. § 2680(b) (exceptions to the FTCA); see also Tomko v. United States, No. RDB-18-1029, 2018 WL 6413299 (D. Md. December 4, 2018) (dismissing a plaintiff's FTCA against the United States based on the failure to timely deliver a package).
Here plaintiffs claim that a box was negligently returned to sender by the USPS. Dkt 1-1. Accordingly, plaintiffs' claim is barred by sovereign immunity. See Gomabon v. United States Postal Serv., CV 17-00417 LEK-RLP, 2018 WL 1613770, at *3 (D. Haw. Mar. 30, 2018) (“it is absolutely clear [Plaintiff] cannot amend the Complaint to cure the fact that the USPS has not waived its sovereign immunity from claims like the claim Plaintiff alleges in the Complaint”).
CONCLUSION
Therefore, the undersigned recommends that the Court deny plaintiffs' in forma pauperis application and dismiss the proposed complaint without leave to amend, sua sponte.
The parties have fourteen (14) days from service of this Report and Recommendation to file written objections thereto. 28 U.S.C. § 636(b)(1); Federal Rule of Civil Procedure (FRCP) 72(b); see also FRCP 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. (1985). Accommodating the time limit imposed by Fed.R.Civ.P. 72(b), the Clerk is directed to set this matter for consideration on April 7, 2023, as noted in the caption