Unpublished Disposition, 848 F.2d 1242 (9th Cir. 1988)

MEMORANDUM^** 

Isabel Christina Giraldo Gonzalez appeals from the district court's order denying her motion to vacate its dismissal of her complaint against various federal agencies and federal employees. Gonzalez contends the district court erred by not accepting her amended complaint that was lodged with the district court before dismissal. We affirm.

Gonzalez had a right to amend her complaint because the defendants had not filed a responsive pleading. See Fed. R. Civ. P. 15(a) (may amend pleading as a matter of course before responsive pleading is filed); Schreiber Distr. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986) (motion to dismiss is not a responsive pleading within the meaning of this rule). The district court erred by not treating the amended complaint as filed when it was lodged with the clerk of the court prior to dismissal. See Cintron v. Union Pacific R.R., 813 F.2d 917 (9th Cir. 1987) (pleadings are considered filed when they are placed in the possession of the clerk of the court).

The error, however, was not prejudicial because the district court, in denying relief from the dismissal, properly determined the amended complaint also failed to state a claim, and therefore the amendments would not have preserved Gonzalez's complaint from the motion to dismiss. See Schreiber, 806 F.2d at 1401 (even though plaintiff has right to amend, relief from dismissal not merited if the amendments could not possibly cure the deficiency). The amended complaint fails to state a claim under Bivens because sovereign immunity prevents Bivens -type actions against the United States, its agencies, or its employees in their official capacities. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397 (1971); Arnsberg v. United States, 757 F.2d 971, 980 (9th Cir. 1984), cert. denied, 475 U.S. 1010 (1985); Holloman v. Watt, 708 F.2d 1399, 1401-02 (9th Cir. 1983), cert. denied, 466 U.S. 958 (1984). Further, because none of the individual defendants were served, the district court properly dismissed them from the suit. Fed. R. Civ. P. 4(d) (summons and complaint must be served personally upon each individual defendant); Hutchinson v. United States, 677 F.2d 1322, 1328 (9th Cir. 1982) (without personal service, district court is without power to render a personal judgment against a defendant).

The amended complaint also fails to state a claim for tort damages because Gonzalez based her tort claims upon California state law rather than the Federal Tort Claims Act. See 28 U.S.C. §§ 1346(b) and 2671 et seq. (only basis of jurisdiction for tort damages against the federal government is the FTCA); Woods v. United States, 720 F.2d 1451, 1453 n. 2 (9th Cir. 1983) (the FTCA grants a waiver of sovereign immunity the limits of which are defined by federal law, not state substantive tort law). The claims were also brought against the agencies and the employees, instead of against the United States itself, as required by the FTCA. 28 U.S.C. §§ 1346(b), 2679(a); Allen v. Veterans Admin., 749 F.2d 1386, 1388 (9th Cir. 1984) (individual agencies of the United States may not be sued). Finally, the complaint did not indicate a claim was presented to the federal agencies six months prior to commencement of the suit, as required by 28 U.S.C. § 2675(a). See Spawr v. United States, 796 F.2d 279, 280 (9th Cir. 1986) (claim requirement is jurisdictional and may not be waived; complaint may be dismissed for failure to indicate compliance with 28 U.S.C. § 2675(a)).

Further, because Gonzalez does not allege any basis for standing other than the alleged past conduct of the federal officials, she lacks standing to assert a claim for injunctive relief prohibiting the alleged conduct by the defendants from happening in the future. In order to seek injunctive relief against future official conduct, a plaintiff must show she is likely to suffer future injury from that conduct. Los Angeles v. Lyons, 461 U.S. 95, 110-11 (1983) (claim seeking injunctive relief against future use by city police of chokehold used against plaintiff dismissed for lack of standing).

Finally, the amended complaint fails to state a claim under the Freedom of Information Act for the alleged failure by the defendants to respond to Gonzalez's requests for documents. As required by the FOIA, the agencies here did notify Gonzalez within ten days of their intention to comply with the requests. 5 U.S.C. § 552(a) (6) (A) (i) (when an agency receives a request under FOIA, it is required to determine within ten days whether to comply with the request and to notify the person making the request immediately of its determination).

AFFIRMED.