Opinion
6:23-cv-00754-MK
05-25-2023
MICHAEL SWANSON, Plaintiff, v. KEVIN DANIELSON, Defendant.
FINDINGS AND RECOMMENDATION AND ORDER ON PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS
MUSTAFA T. KASUBHAI (He / Him), United States Magistrate Judge.
Pro se plaintiff Michael Swanson (“Plaintiff”) brings this action against Assistant United States Attorney Kevin Danielson (“Defendant') for allegedly false and defamatory statements made in a court filing in a prior case dated May 24, 2021. Plaintiff's complaint (ECF 1) alleges a state law tort claim and two claims under the federal statutes 28 U.S.C. § 4101 and 18 U.S.C. § 1001. Before the Court is Plaintiff's application to proceed in forma pauperis (ECF 2). Based on a review of Plaintiff's application, the Court is satisfied that Plaintiff meets the financial standards to proceed in forma pauperis and Plaintiff's application is therefore granted. Because this Court lacks jurisdiction over Plaintiff's claims, however, Plaintiff's complaint should be dismissed.
STANDARD OF REVIEW
Under 28 U.S.C. § 1915(e), the district court must dismiss an in forma pauperis complaint, either sua sponte or pursuant to a motion made by the opposing party, if it “is frivolous or malicious,” or “fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). To avoid dismissal under 28 U.S.C. § 1915(e), the “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). While the plaintiff need not detail all factual allegations, the complaint must nonetheless provide “more than labels and conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, to state a plausible claim for relief, the complaint “must contain sufficient allegations of underlying facts” to support its legal conclusions. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Pro se plaintiffs do not have the benefit of legal counsel, therefore their pleadings are “held to less stringent standards” than pleadings drafted by lawyers. Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 923 n.4 (9th Cir. 2011).
DISCUSSION
Upon careful review of Plaintiff's Complaint (ECF 1) and construing Plaintiff's pleadings in the most favorable and liberal light, the Court finds that it lacks jurisdiction over Plaintiff's claims and should therefore dismiss Plaintiff's complaint. Plaintiff alleges federal jurisdiction based on a federal question. ECF 1 at 3. Plaintiff alleges federal jurisdiction based on two federal statutes, 28 U.S.C. § 4101 and 18 U.S.C. § 1001. The first of these, 28 U.S.C. § 4101, provides the definition of “Defamation” but does not provide a private right of action. Because Plaintiff cannot plead a claim based on 28 U.S.C. § 4101, that statute cannot confer federal question jurisdiction.
The second federal statute cited in Plaintiff's complaint, 18 U.S.C. § 1001, is a general criminal provision punishing fraudulent statements made to a federal agency. See U.S. v. Knox, 396 U.S. 77 (1969). That statute provides generally that false statements by Government officials are punishable by fine or imprisonment, 18 U.S.C. § 1001(a)(1)-(3). Because the statute does not confer a private right of action, Plaintiff has not stated any claim under 18 U.S.C. § 1001. Because Plaintiff does not properly plead any federal claims, the Court cannot exercise jurisdiction over Plaintiff's complaint and the Court should dismiss Plaintiff's complaint sua sponte. See 28 U.S.C. § 1915(e)(2)(B); Lopez, 203 F.3d at 1126-27.
The only remaining question before the Court is whether to dismiss Plaintiff's complaint with leave to refile. Here, the basis of Plaintiff's complaint is Defendant's allegedly false and defamatory statements contained in a court filing (ECF 1 at 4). Under the Federal Employees Liability Reform and Tort Compensation Act of 1988 (“FELRTCA”), Congress extended absolute immunity for common law torts to all federal employees regardless of whether the conduct at issue was discretionary. See United States v. Smith, 499 U.S. 160 (1991). FELRTCA confers such immunity by making the Federal Tort Claims Act (FTCA) the exclusive remedy for all common law torts committed by federal employees while acting within the scope of their office or employment. 28 U.S.C. § 2679(b)(1). Here, Defendant is a federal employee and, based on the complaint, his allegedly tortious actions occurred while he was acting within the scope of his employment as Assistant U.S. Attorney. To the extent that Plaintiff alleges common law tort claims against Defendant, then, these claims must be brought under the FTCA. For these reasons, Plaintiff's state law tort claim should be dismissed with prejudice.
The immunity conferred by FELRTCA does not extend or apply to suits against federal employees for violation of the Constitution or of federal statutes. 28 U.S.C. § 2679(b)(2). As discussed above, Plaintiff has failed to properly plead any claim under a federal statute. Further, based on the allegations in the complaint, Plaintiff does not plead any facts to support a Constitutional or other federal claim that would avoid the absolute immunity conferred by the FELRTCA. Nevertheless, because absolute immunity does not bar Constitutional tort claims and claims made under appropriate federal statutes, Plaintiff should be given leave to refile any such federal claims that meet the exceptions enumerated in 28 U.S.C. § 2679(b)(2) within 30 days of an Order dismissing Plaintiff's complaint.
RECOMMENDATION
For the reasons above, Plaintiff's complaint (ECF 1) should be dismissed without prejudice. Plaintiff should be given leave to refile for 30 days after entry of an Order dismissing Plaintiff's compliant.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).