-DAD (PS) Dodenhoff v. Solis, No. 2:2011cv00964 - Document 3 (E.D. Cal. 2011)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 5/27/2011 ORDERING that pltf's 2 application to proceed IFP is GRANTED; and pltf's 1 "Motion to effect collection" is DEEMED a cmplt, the clerk to amend the court's docket to reflect that pltf has filed a cmplt; and RECOMMENDING that pltf's 1 cmplt be dismissed w/out leave to amend; and this action be dismissed. Referred to Judge Lawrence K. Karlton; Objections due w/in 14 days.(Yin, K)
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-DAD (PS) Dodenhoff v. Solis Doc. 3 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DENNIS A. DODENHOFF, 11 12 13 Plaintiff, No. CIV S-11-0964 LKK DAD PS v. HILDA L. SOLIS, Secretary of Labor, 14 ORDER AND FINDINGS AND RECOMMENDATIONS Defendant. 15 / 16 Plaintiff, proceeding pro se, commenced this civil action by filing an application 17 to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 and a document titled “Motion to 18 effect collection of claim for personal injury filed January 19, 2010 and injunction to restrain 19 agency action to applicable statue law and regulations.” (Compl. (Doc. No. 1) at 1.) In 20 accordance with Federal Rule of Civil Procedure 3, which provides that “[a] civil action is 21 commenced by filing a complaint with the court,” plaintiff’s motion has been deemed to be a 22 complaint. 23 This matter was referred to the undersigned in accordance with Local Rule 24 302(c)(21) and 28 U.S.C. § 636(b)(1). Plaintiff has submitted an in forma pauperis application 25 that makes the showing required by 28 U.S.C. § 1915(a)(1). Plaintiff’s request for leave to 26 proceed in forma pauperis will therefore be granted. 1 Dockets.Justia.com 1 The determination that plaintiff may proceed in forma pauperis does not complete 2 the inquiry required by the statutes. Under 28 U.S.C. § 1915(e)(2), the court is required to 3 dismiss an in forma pauperis case at any time if the plaintiff’s allegations of poverty is untrue or 4 if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or 5 seeks monetary relief against an immune defendant. To state a claim on which relief may be 6 granted, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its 7 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is frivolous when it lacks 8 an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); 9 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 10 In considering whether a complaint states a cognizable claim, the court accepts as 11 true the material allegations in the complaint and construes the allegations in the light most 12 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. 13 v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 14 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 15 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as 16 true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 17 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 18 The minimum requirements for a civil complaint in federal court are as follows: 19 A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. 20 21 22 23 Fed. R. Civ. P. 8(a). Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a 24 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that 25 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. 26 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels 2 1 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor 2 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual 3 enhancements.’” Ashcroft v. Iqbal, --- U.S.---, ---, 129 S. Ct. 1937, 1949 (2009) (quoting 4 Twombly, 550 U.S. at 555, 557. A plaintiff must allege with at least some degree of particularity 5 overt acts which the defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 6 649. A complaint must also contain “a short and plain statement of the grounds for the court’s 7 jurisdiction” and “a demand for the relief sought.” Fed. R. Civ. P. 8(a)(1) & 8(a)(3). 8 9 10 11 12 13 14 15 16 17 Here, plaintiff alleges in his complaint that he suffered loss of employment, damage to his reputation and the deprivation of property as the result of decisions made by the Department of Labor. (Compl. (Doc. No. 1) at 2.) In this regard, plaintiff claims that: Decisions made by officers representing the Department of Labor (DOL) in error, ignorance or neglect resulted in the loss of Plaintiff’s employment and condemned the Plaintiff, Dennis Dodenhoff, branding the plaintiff as a “whistle blower” and has render (sic) the Plaintiff unable to pursue employment. The decision of the Department of Labor (DOL) in violation of California State and Federal law have resulted in 4-5 years of employment that cannot be included on any resume in looking for work. The secondary result of the DOL rulings is defamation of character, and loss of reputation in the public arena. Restitution, because of the effect of the DOL action, cannot be accomplished nor can the Plaintiff be restore (sic) to his original position; the result of defendant’s action is 50 years of Plaintiff’s reputation, dedication; and livelihood has been destroyed. 18 19 (Id. at 2-3.) Plaintiff seeks $500,000 in damages as well as an “injunction preventing agency 20 action not in compliance with the Davis-Bacon and Related Acts.” (Id. at 3.) 21 Plaintiff’s complaint is deficient in several respects. First, the United States 22 cannot be sued without the consent of Congress. Block v. North Dakota ex rel. Bd. of Univ. & 23 Sch. Lands, 461 U.S. 273, 287 (1983); Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 24 2009). Similarly, no federal agency can be sued unless Congress has explicitly revoked that 25 agency’s immunity. Loeffler v. Frank, 486 U.S. 549, 554 (1988); Gerritsen v. Consulado 26 General de Mexico, 989 F.2d 340, 343 (9th Cir. 1993); City of Whittier v. U.S. Dep’t of Justice, 3 1 598 F.2d 561, 562 (9th Cir. 1979). Put another way, no court can award relief against the United 2 States or a federal agency unless the requested relief is expressly and unequivocally authorized 3 by federal statute. United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003); 4 United States v. King, 395 U.S. 1, 4 (1969) (citing United States v. Sherwood, 312 U.S. 584, 5 586-87 (1941)); Cato v. United States, 70 F.3d 1103, 1107 (9th Cir. 1995). 6 “The question whether the United States has waived its sovereign immunity 7 against suits for damages is, in the first instance, a question of subject matter jurisdiction.” 8 McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). See also Consejo de Desarrollo 9 Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007). Absent a 10 waiver of sovereign immunity, a claim against the United States must be dismissed for lack of 11 subject matter jurisdiction. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). If 12 conditions are attached to legislation that waives the sovereign immunity of the United States, the 13 conditions must be strictly observed by the courts, and exceptions are not to be readily implied. 14 Block, 461 U.S. at 287; see also Consejo de Desarrollo Economico de Mexicali, A.C., 482 F.3d 15 at 1173 (“When the United States consents to be sued, the terms of its waiver of sovereign 16 immunity define the extent of the court’s jurisdiction.”); Cato, 70 F.3d at 1107 (same). 17 The fact that plaintiff has named Hilda Solis, the United States Secretary of the 18 Department of Labor, as the defendant does not keep this action from being a suit against the 19 United States. “It has long been the rule that the bar of sovereign immunity cannot be avoided by 20 naming officers and employees of the United States as defendants.” Gilbert, 756 F.2d at 1458 21 (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688 (1949)). Thus, this 22 suit against Hilda Solis in her official capacity as the United States Secretary of the Department 23 of Labor is a suit against the United States. Plaintiff does not claim that the United States has 24 waived its immunity. Therefore, his complaint is barred by the doctrine of sovereign immunity. 25 26 Second, the court finds plaintiff’s complaint vague and conclusory. The allegations of plaintiff’s complaint provide no dates and few facts. Plaintiff’s complaint does not 4 1 even describe the nature of his employment or any information relating to the alleged decisions 2 by the Department of Labor that he wishes to place at issue. Moreover, in his complaint plaintiff 3 merely alludes to a finding by the Department of Labor that he was a “whistle blower.” (Compl. 4 (Doc. No. 1) at 2.) There are more than a dozen Federal laws protecting whistleblowers, 5 Williams v. United Airlines, Inc., 500 F.3d 1019, 1024 (9th Cir. 2007), as well as a California 6 statute. See Cal. Lab. Code § 1102.5. However, plaintiff’s complaint merely makes reference to 7 whistleblowing without providing any relevant factual allegations or identifying the federal law 8 that was allegedly violated by defendant. 9 Finally, plaintiff seeks an injunction from this court preventing the Department of 10 Labor from undertaking “any action not in compliance with the Davis-Bacon and Related Acts.” 11 (Compl. (Doc. No. 1) at 3.) However, there is no private right of action for employees under the 12 Davis-Bacon Act. See Operating Engineers Health and Welfare Trust Fund v. JWJ Contracting, 13 135 F.3d 671, 676 (9th Cir. 1998). 14 For all the reasons set forth above, plaintiff’s complaint fails to state a cognizable 15 claim on which relief may be granted. Accordingly, plaintiff’s complaint will be dismissed for 16 failure to state a claim. 17 The undersigned has carefully considered whether plaintiff may amend his 18 complaint to state a claim upon which relief can be granted. “Valid reasons for denying leave to 19 amend include undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. 20 Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988). See also Klamath-Lake 21 Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that 22 while leave to amend shall be freely given, the court does not have to allow futile amendments). 23 In light of the many obvious deficiencies of plaintiff’s complaint noted above as well as the 24 nature of his sparse allegations, the court finds that it would be futile to grant plaintiff leave to 25 amend. 26 ///// 5 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff’s April 11, 2011 application to proceed in forma pauperis (Doc. No. 2) 3 is granted; and 4 2. Plaintiff’s April 11, 2011 “Motion to effect collection” (Doc. No. 1) is deemed 5 a complaint. The Clerks Office is directed to amend the court’s docket to reflect that plaintiff has 6 filed a compliant. 7 IT IS RECOMMENDED that: 8 1. Plaintiff’s April 11, 2011 complaint (Doc. No. 1) be dismissed without leave to 9 amend; and 10 2. This action be dismissed. 11 These findings and recommendations will be submitted to the United States 12 District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 13 fourteen (14) days after being served with these findings and recommendations, plaintiff may file 14 written objections with the court. A document containing objections should be titled “Objections 15 to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 16 objections within the specified time may, under certain circumstances, waive the right to appeal 17 the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 DATED: May 27, 2011. 19 20 21 22 DAD:6 Ddad1\orders.prose\dodenhoff0964.ifp.f&rs 23 24 25 26 6
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