The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER GRANTING IN FORMA PAUPERIS APPLICATION (Doc. 3) FINDINGS AND RECOMMENDATION UNITED STATES OF AMERICA - DISMISSING COMPLAINT WITHOUT FEDERAL LEAVE TO AMEND (Doc. 1)
Plaintiff, Charles J. Quintana ("Plaintiff") filed the instant action on May 25, 2012. (Doc. 1). Plaintiff also filed an application to proceed in forma pauperis on that same date. (Doc. 3). Having reviewed the request, this court GRANTS Plaintiff's in forma pauperis application.
Plaintiff has filed the instant complaint consisting of four sentences alleging that the Office of Safety and Health Administration ("OSHA") has not responded to a letter he wrote to "the Whistle Blower Unit" on March 22, 2012. *fn1 He is requesting that the Court decide "responsibility as to OSHA's involvement." (Doc. 1 at pg. 1). Upon a review of the pleading, it is recommended that the complaint be dismissed because this Court lacks jurisdiction to hear Plaintiff's claim and any amendment would be futile.
Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court determines that the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.
A complaint must contain "a short and plain statement of the claim
showing that the pleader is entitled to relief . . . ." Fed.
R. Civ. P . 8(a)(2). Detailed factual allegations are not
required, but "[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice."
Ashcroft v. Iqbal , 129 S.Ct. 1937, 1949 (2009)
(citing Bell Atlantic Corp. v. Twombly , 550 U.S.
544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth
"sufficient factual matter, accepted as true, to 'state a claim that
is plausible on its face.'" Ashcroft v.
Iqbal , 129 S.Ct. at 1949 (quoting Twombly
, 550 U.S. at 555). While factual allegations are accepted as
true, legal conclusion are not. Id .
A complaint, or portion thereof, should only be dismissed for
failure to state a claim upon which relief may be granted if it
appears beyond doubt that plaintiff can prove no set of facts in
support of the claim or claims that would entitle him to relief. See
Hishon v. King & Spalding , 467 U.S. 69, 73 (1984),
citing Conley v. Gibson , 355
U.S. 41, 45-46 (1957); see also Palmer v. Roosevelt Lake Log
Owners Ass'n , 651 F.2d 1289, 1294 (9th Cir. 1981). In
reviewing a complaint under this standard, the Court must accept as
true the allegations of the complaint in question, Hospital
Bldg. Co. v. Trustees of Rex Hospital , 425 U.S. 738, 740
(1976), construe the pro se pleadings liberally in the light most
favorable to the Plaintiff , Resnick v. Hayes , 213
F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the
Plaintiff's favor , Jenkins v. McKeithen , 395 U.S.
411, 421 (1969).
B. Analysis of Plaintiff's Claims
Plaintiff's complaint is vague and fails to state a claim. Rule 8(a) states, a complaint must contain "a short and plain statement of the claim." The rule expresses the principle of notice-pleading, whereby the pleader need only give the opposing party fair notice of a claim. Conley v. Gibson , 355 U.S. at 45-46. Rule 8(a) does not require an elaborate recitation of every fact a plaintiff may ultimately rely upon at trial, but only a statement sufficient to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Id. at 47. Factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal , 129 S.Ct. at 1949 (2009). Here, Plaintiff indicates that because OSHA has failed to respond to his written complaint, the Court must determine OSHA's responsibility. This pleading is not sufficient. Furthermore, leave will not be given to amend because any amendment would be futile for the reasons set forth below.
In this case, Plaintiff has named the United States as a Defendant and is referencing a complaint he filed with OSHA and its lack of response. He has submitted no legal authority for the proposition that this Court would have jurisdiction to hear this claim, nor has the Court's research revealed any such authority. Although the basis of his letter to OSHA is not clearly articulated in the instant complaint, a review of other complaints Plaintiff has recently filed in this district indicates that he is alleging his employment was terminated at Quest Diagnostics after filing reports of unlawful working conditions against his employer. See, Quintana v. State of California OSHA , 12-cv-822 LJO-SKO; Quintana v. State of California-Labor Standards Enforcement , 12-cv- 823, AWI-BAM ; Quintana v. Quest Diagnostics Inc. , 12-cv-824 LJO DLB. It appears that OSHA's jurisdiction to adjudicate cases for whistleblowing are limited to 18 U.S.C. 1514A(b)(1)(A), more commonly known as the Sarbanes-Oxley Act. *fn2 Under this statute, a person who alleges discharge or other discrimination for whistleblower activities may seek relief ... [by] filing a complaint with the Secretary of Labor. 29 C.F.R. § 1980.103(c) (complaint should be filed with OSHA Area Director for the geographical area in which the employee resides or was employed). If a final decision is not issued within 180 days of the filing of the complaint, the claimant may bring an action for de novo review in the appropriate United States District Court. 18 U.S.C. § 1514A(b)(1)(B); 29 C.F.R. § 1980.114(a). Additionally, "[f]ifteen days in advance of filing a complaint in federal court, a complainant must file with the administrative law judge or the Board (depending upon where the proceeding is pending), a notice of his or her intention to file such a complaint." 29 C.F.R. § 1980.114(b). If these requirements are not met, a federal court lacks jurisdiction to hear the claim. Malin v. Siemens Medical Solutions Health Services, 638 F. Supp. 2d 492, 496 (D. Md. 2008); Collins v. Beazer Homes USA, Inc ., 334 F. Supp. 2d 1365, 1373 & n. 5 (N.D. Ga. 2004) (setting forth the administrative prerequisites to bringing a whistleblower protection action in federal court).
Here, Plaintiff has not set forth any legal authority establishing this Court's jurisdiction to review OSHA's action. Moreover, since Plaintiff recently filed the complaint with OSHA on March 22, 2012, 180 days have not passed. Thus, it appears no jurisdiction is conferred on this Court.
" A trial court may dismiss a claim sua sponte under Fed. R. Civ. P. 12(b)(6). . . . Such dismissal may be made without notice where the claimant cannot possibly win relief." Omar v. Sea-Land Service, Inc. , 813 F.2d 986, 991 (9 th Cir. 1987); see Wong v. Bell , 642 F.2d 359, 361-362 (9 th Cir. 1981). Sua sponte dismissal may be made before process is served on defendants. Neitzke v. Williams , 490 U.S. 319, 324 (1989) (dismissals under 28 U.S.C. § 1915(d) are often made sua sponte); Franklin v. Murphy , 745 F.2d 1221, 1226 (9 th Cir. 1984) (court may dismiss frivolous in forma pauperis action sua sponte prior to service of process ...