The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
(1) SUA SPONTE SCREENING THE COMPLAINT AND DISMISSING IN PART WITH PREJUDICE, and (2) DIRECTING U.S. MARSHAL SERVICE PURSUANT TO 28 U.S.C. § 1915(d) AND FED. R. CIV. P. 4(c)(3).
Plaintiff commenced this action on June 10, 2009, alleging that Defendants Omar Vazquez (acting in his individual and official capacities) and United States Coast Guard, Sector San Diego violated his due process rights under the Fifth Amendment. [Doc. No. 1]. On September 2, 2009, the Court sua sponte dismissed with leave to amend Plaintiff's claims against the U.S. Coast Guard and Omar Vazquez in his official capacity. [Doc. No. 7]. Currently before the Court is Plaintiff's First Amended Complaint, filed on September 21, 2009. [Doc. No. 8]. Having considered Plaintiff's arguments and for the reasons discussed below, the Court sua sponte DISMISSES IN PART with prejudice Plaintiff's complaint for lack of subject matter jurisdiction and for failure to state a claim.
I. Subject Matter Jurisdiction
The Court dismissed in part Plaintiff's original complaint because of lack of subject matter jurisdiction over the claims against the U.S. Coast Guard and Omar Vazquez in his official capacity.
In his First Amended Complaint, Plaintiff re-alleges that jurisdiction is proper under 28 U.S.C. § 1343*fn1 ("Section 1343") and 42 U.S.C. § 1983 ("Section 1983"). These attestations, however, are insufficient to overcome the problems that the Court noted when it sua sponte dismissed Plaintiff's original complaint.
First, the Court notes that Section 1983 is not a jurisdictional grant. See Cervoni v. Sec'y of Health, Ed. & Welfare, 581 F.2d 1010, 1019 (1st Cir. 1978). Rather, the grant of jurisdiction for courts to hear cases under Section 1983 is found in Section 1343(a)(3). See Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 107 n.4 (1989); Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 607-08 (1979). Specifically, Section 1343(a)(3) provides district courts with original jurisdiction over: any civil action authorized by law to be commenced by any person ... [t]o redress the deprivation, under color of any State law, statute, ordinance, regulation, custom, or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.
28 U.S.C. § 1343(a)(3) (emphasis added). Thus, by its specific language, Section 1343(a)(3) provides a jurisdictional basis only over claims against state officials, and not against federal officials or agencies. See Redd v. Lambert, 674 F.2d 1032, 1035 (5th Cir. 1982) (citing Chapman, 441 U.S. 600); Cervoni, 581 F.2d at 1019 ("[N]either § 1983 nor its jurisdictional counterpart, 28 U.S.C. § 1343(3), constitutes an applicable basis for jurisdiction since they do not concern actions against federal officers." (citation omitted)). Therefore, Section 1343(a)(3) cannot be the basis for Plaintiff's claims against the U.S. Coast Guard and Omar Vazquez in his official capacity.
Second, the Court reiterates that Plaintiff's claims against the U.S. Coast Guard and Omar Vazquez in his official capacity fail because of the doctrine of sovereign immunity. "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475 (1994). "Any waiver of immunity must be 'unequivocally expressed,' and any limitations and conditions upon the waiver 'must be strictly observed and exceptions thereto are not to be implied.'" Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir. 1997) (quoting Lehman v. Nakshian, 453 U.S. 156, 160-61 (1981)). The doctrine of sovereign immunity extends equally to federal agencies and federal employees acting within their official capacities. Id.
Plaintiff's First Amended Complaint fails to cite to any authority from which a waiver of immunity may be found with respect to his constitutional claims. Notably, Section 1343 does not constitute a waiver of the sovereign immunity of the United States. See Salazar v. Heckler, 787 F.2d 527, 528 (10th Cir. 1986); Beale v. Blount, 461 F.2d 1133, 1138 (5th Cir. 1972). The Court therefore lacks subject matter jurisdiction over and DISMISSES with prejudice the claims against the U.S. Coast Guard and Omar Vazquez in his official capacity. See McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1998) ("The question whether the United States has waived its sovereign immunity against suits for damages is, in the first instance, a question of subject matter jurisdiction.").
II. Failure to State a Claim
Moreover, as the Court indicated when it dismissed in part Plaintiff's original complaint, the Court is under a continuing duty to dismiss an in forma pauperis case "any time" the Court determines that the action "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). In the present case, on the facts alleged, the Court finds that there is no claim for monetary damages that Plaintiff can state against the U.S. Coast Guard and Omar Vazquez in his official capacity. Even if the Court construes Plaintiff's § 1983 action as a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), that cause of action for monetary damages is not available against a federal agency or a federal official acting in his official capacity. See FDIC, 510 U.S. at 485-86; Daly-Murphy v. Winston, 837 F.2d 348, 355-56 (9th Cir. 1988). Accordingly, the Court DISMISSES with prejudice the claims against the U.S. Coast Guard and Omar Vazquez in his official capacity for failure to state a claim.
III. Service pursuant to 28 U.S.C. § 1915(d)
Because Plaintiff's First Amended Complaint appears to state a valid claim under Bivens against Omar Vazquez in his individual capacity, this claim survives the sua sponte screening under 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b). See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). Accordingly, the Court finds that Plaintiff is entitled to U.S. Marshal service on his behalf. See 28 U.S.C. § 1915(d) ("The officers of the court shall issue and serve all process, and perform all duties in [in forma pauperis] cases."); FED. R. CIV. P. 4(c)(3). Plaintiff is cautioned, however, that "the sua sponte screening and dismissal procedure is ...