(PS)Duncan v. United States

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 THERESA DUNCAN, No. 2:19-cv-02250-JAM-CKD PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 THE UNITED STATES, 15 Defendant. [16] 17 I. Background and Allegations 18 Plaintiff is proceeding in this action pro se and has paid the filing fee for this action. This 19 proceeding was referred to this court by Local Rule 302(c)(21). Plaintiff’s complaint is currently 20 before the court for screening. 28 U.S.C. § 1915 (e)(2). 21 Plaintiff asserts claims against the United States under the Americans with Disabilities 22 Act (“ADA”) and the Judicial Conduct and Disability Act, 28 U.S.C. §§ 351–364. (ECF No. 1.) 23 Plaintiff alleges that a judge “failed to provide or allow for the assistance of a disability advocate 24 and auxiliary devices during all court proceedings,” “[f]ailed to keep private or confidential the 25 request for ADA assistance,” and “[f]ailed to comply with the Judicial Conduct and Disability 26 Act.” (Id.) 27 //// 28 //// 1 II. Plaintiff’s ADA Claim Is Not Cognizable 2 Absent a waiver, sovereign immunity shields the federal government and its agencies 3 from suit. Loeffler v. Frank, 486 U.S. 549, 554 (1988); Fed. Hous. Admin. v. Burr, 309 U.S. 242 , 4 244 (1940). Sovereign immunity is jurisdictional in nature. Indeed, the “terms of [the United 5 States’] consent to be sued in any court define that court’s jurisdiction to entertain the suit.” 6 United States v. Sherwood, 312 U.S. 584, 586 (1941); see also United States v. Mitchell, 463 7 U.S. 206, 212 (1983) (explaining that “[i]t is axiomatic that the United States may not be sued 8 without its consent and that the existence of consent is a prerequisite for jurisdiction”). 9 Here, plaintiff attempts to sue the United States in federal court. However, the United 10 States is entitled to sovereign immunity and plaintiff fails to show any waiver of such sovereign 11 immunity. See Agee v. United States, 72 Fed. Cl. 284, 289 (Fed. Cl. 2006) (concluding that 12 “Congress has not waived the Federal Government’s sovereign immunity with regard to ADA 13 claims” (citing Cellular Phone Taskforce v. F.C.C., 217 F.3d 72 , 73 (2d Cir. 2000) (holding that 14 the ADA is not applicable to the federal government because “public entity” is defined as a state 15 or local government)). In the absence of an unequivocal waiver of the United States’ sovereign 16 immunity, this court does not have subject matter jurisdiction over plaintiff’s ADA claim. 17 Accordingly, plaintiff is barred from bringing an ADA claim against the United States, the 18 complaint fails to state a valid claim for relief against the United States, and dismissal is proper. 19 III. Plaintiff’s Claim under the Judicial Conduct and Disability Act is Not Cognizable 20 Plaintiff also includes a claim under 28 U.S.C. § 351 , which provides: “Any person 21 alleging that a judge has engaged in conduct prejudicial to the effective and expeditious 22 administration of the business of the courts, or alleging that such judge is unable to discharge all 23 the duties of office by reason of mental or physical disability, may file with the clerk of the court 24 of appeals for the circuit a written complaint containing a brief statement of the facts constituting 25 such conduct.” First, this statute is clearly inapplicable here given that plaintiff does not name an 26 individual judge as a defendant.1 Second, to the extent plaintiff seeks to file a judicial complaint, [27] 1 Even assuming arguendo plaintiff named a judge as a defendant, judges are immune from 28 actions for judicial acts taken within the jurisdiction of their courts. See Mireless v. Waco, 502 1 plaintiff has not complied with the procedural requirement of this statute. Under section 351, a 2 judicial complaint is initiated by filing it with the clerk of the court of appeals for the circuit, not 3 with the district court. Id. Section 351 does not afford this court jurisdiction over plaintiff’s 4 claim and dismissal is therefore proper. 5 IV. No Leave to Amend 6 If the court finds that a complaint should be dismissed for failure to state a claim, the court 7 has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122 , 1126– 8 30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the 9 defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130–31; see 10 also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given 11 leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely 12 clear that the deficiencies of the complaint could not be cured by amendment.” (citing Noll v. 13 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987))). However, if, after careful consideration, it is 14 clear that a complaint cannot be cured by amendment, the court may dismiss without leave to 15 amend. Cato, 70 F.3d at 1105–06 (affirming dismissal and finding the plaintiff’s “theories of 16 liability either fall outside the limited waiver of sovereign immunity by the United States, or 17 otherwise are not within the jurisdiction of the federal courts”). 18 The undersigned finds that, as set forth above, the defendant United States is immune 19 from liability, the complaint does not identify a waiver of sovereign immunity, and this court does 20 not have jurisdiction over a claim under 28 U.S.C. § 351 . As it appears amendment would be 21 futile, the undersigned will recommend that this action be dismissed without leave to amend and 22 plaintiff’s filing fee be reimbursed. 23 V. Conclusion 24 In accordance with the above, IT IS HEREBY RECOMMENDED that: 25 1. This action be dismissed without leave to amend; 26 2. The Clerk of Court be directed to refund the $400.00 filing fee in this action as soon as 27 U.S. 9 , 11 (1991) (explaining that judicial immunity “is an immunity from suit, not just from the 28 ultimate assessment of damages”); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). 1 practicable; and 2 3. This case be closed. 3 These findings and recommendations are submitted to the United States District Judge 4 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within fourteen days 5 | after being served with these findings and recommendations, any party may file written 6 | objections with the court and serve a copy on all parties. Such a document should be captioned 7 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 8 | within the specified time may waive the right to appeal the District Court’s order. Martinez v. 9 | Yist, 951 F.2d 1153 (9th Cir. 1991). 10 | Dated: November 21, 2019 Pt ft) /f / a CAND /- fA. Loree CAROLYN K DELANEY 12 UNITED STATES MAGISTRATE JUDGE [14] 15} 15 duncan2250.dismissal