United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
I.
Background and Allegations
Plaintiff
is proceeding in this action pro se and has paid the filing
fee for this action. This proceeding was referred to this
court by Local Rule 302(c)(21). Plaintiff's complaint is
currently before the court for screening. 28 U.S.C. §
1915(e)(2).
Plaintiff
asserts claims against the United States under the Americans
with Disabilities Act (“ADA”) and the Judicial
Conduct and Disability Act, 28 U.S.C. §§ 351-364.
(ECF No. 1.) Plaintiff alleges that a judge “failed to
provide or allow for the assistance of a disability advocate
and auxiliary devices during all court proceedings, ”
“[f]ailed to keep private or confidential the request
for ADA assistance, ” and “[f]ailed to comply
with the Judicial Conduct and Disability Act.”
(Id.)
II.
Plaintiff's ADA Claim Is Not Cognizable
Absent
a waiver, sovereign immunity shields the federal government
and its agencies from suit. Loeffler v. Frank, 486
U.S. 549, 554 (1988); Fed. Hous. Admin. v. Burr, 309
U.S. 242, 244 (1940). Sovereign immunity is jurisdictional in
nature. Indeed, the “terms of [the United States']
consent to be sued in any court define that court's
jurisdiction to entertain the suit.” United States
v. Sherwood, 312 U.S. 584, 586 (1941); see also
United States v. Mitchell, 463 U.S. 206, 212 (1983)
(explaining that “[i]t is axiomatic that the United
States may not be sued without its consent and that the
existence of consent is a prerequisite for
jurisdiction”).
Here,
plaintiff attempts to sue the United States in federal court.
However, the United States is entitled to sovereign immunity
and plaintiff fails to show any waiver of such sovereign
immunity. See Agee v. United States, 72 Fed.Cl. 284,
289 (Fed. Cl. 2006) (concluding that “Congress has not
waived the Federal Government's sovereign immunity with
regard to ADA claims” (citing Cellular Phone
Taskforce v. F.C.C., 217 F.3d 72, 73 (2d Cir. 2000)
(holding that the ADA is not applicable to the federal
government because “public entity” is defined as
a state or local government)). In the absence of an
unequivocal waiver of the United States' sovereign
immunity, this court does not have subject matter
jurisdiction over plaintiff's ADA claim. Accordingly,
plaintiff is barred from bringing an ADA claim against the
United States, the complaint fails to state a valid claim for
relief against the United States, and dismissal is proper.
III.
Plaintiff's Claim under the Judicial Conduct and
Disability Act is Not Cognizable
Plaintiff
also includes a claim under 28 U.S.C. § 351, which
provides: “Any person alleging that a judge has engaged
in conduct prejudicial to the effective and expeditious
administration of the business of the courts, or alleging
that such judge is unable to discharge all the duties of
office by reason of mental or physical disability, may file
with the clerk of the court of appeals for the circuit a
written complaint containing a brief statement of the facts
constituting such conduct.” First, this statute is
clearly inapplicable here given that plaintiff does not name
an individual judge as a defendant.[1] Second, to the extent
plaintiff seeks to file a judicial complaint, plaintiff has
not complied with the procedural requirement of this statute.
Under section 351, a judicial complaint is initiated by
filing it with the clerk of the court of appeals for the
circuit, not with the district court. Id. Section
351 does not afford this court jurisdiction over
plaintiff's claim and dismissal is therefore proper.
IV.
No Leave to Amend
If the
court finds that a complaint should be dismissed for failure
to state a claim, the court has discretion to dismiss with or
without leave to amend. Lopez v. Smith, 203 F.3d
1122, 1126- 30 (9th Cir. 2000) (en banc). Leave to amend
should be granted if it appears possible that the defects in
the complaint could be corrected, especially if a plaintiff
is pro se. Id. at 1130-31; see also Cato v.
United States, 70 F.3d 1103, 1106 (9th Cir. 1995)
(“A pro se litigant must be given leave to amend his or
her complaint, and some notice of its deficiencies, unless it
is absolutely clear that the deficiencies of the complaint
could not be cured by amendment.” (citing Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987))). However,
if, after careful consideration, it is clear that a complaint
cannot be cured by amendment, the court may dismiss without
leave to amend. Cato, 70 F.3d at 1105-06 (affirming
dismissal and finding the plaintiff's “theories of
liability either fall outside the limited waiver of sovereign
immunity by the United States, or otherwise are not within
the jurisdiction of the federal courts”).
The
undersigned finds that, as set forth above, the defendant
United States is immune from liability, the complaint does
not identify a waiver of sovereign immunity, and this court
does not have jurisdiction over a claim under 28 U.S.C.
§ 351. As it appears amendment would be futile, the
undersigned will recommend that this action be dismissed
without leave to amend and plaintiff's filing fee be
reimbursed.
V.
Conclusion
In
accordance with the above, IT IS ...