Alfarag v. United States Postal Service

• Court: District Court, W.D. Washington
• Decided: April 25, 2023
• Docket: 3:23-cv-05305
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 MAJID ALFARAG, CASE NO. 3:23-CV-5305-DGE 11 Plaintiff, ORDER RENOTING APPLICATION 12 v. TO PROCEED IN FORMA PAUPERIS 13 UNITED STATES POSTAL SERVICE, 14 Defendant. 15

The District Court has referred Plaintiff Majid Alfarag’s pending Application to Proceed 16 In Forma Pauperis (“IFP”) and proposed complaint to United States Magistrate Judge David W. 17 Christel pursuant to Amended General Order 11-22. On April 8, 2023, Plaintiff filed a proposed 18 civil complaint and an application to proceed in forma pauperis (“IFP”), that is, without paying 19 the filing fee for a civil case. See Dkts. 1; 1-1. 20 Standard for Granting Application for IFP. The district court may permit indigent 21 litigants to proceed IFP upon completion of a proper affidavit of indigency. See 28 U.S.C. 22 §1915(a). However, the court has broad discretion in denying an application to proceed IFP. 23 Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963). 24 1 Plaintiff’s Application to Proceed IFP. Plaintiff states that she is unemployed. See Dkt. 2 1 at 1. She has received $417 over the last twelve months in disability, unemployment, workers 3 compensation, or other public assistance. Id. Plaintiff states she has $50 cash on hand and $100 4 in her bank accounts. Id. at 2. Plaintiff has no assets and her expenses exceed her income. See

5 Dkt. 1. 6 Review of the Complaint. Because Plaintiff filed this proposed complaint pro se, the 7 Court has construed the pleadings liberally and has afforded Plaintiff the benefit of any doubt. 8 See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir.1988). In the 9 proposed complaint, Plaintiff alleges the United States Postal Service’s abuse of her mail has 10 caused her depression and anxiety. See Dkt. 1-1. 11 Sua Sponte Dismissal – Standard on Rule 12 (b). Pursuant to Fed. R. Civ. P. 12(b), a 12 case may be dismissed for “(1) lack of subject matter jurisdiction; (2) lack of personal 13 jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) 14 failure to state a claim upon which relief can be granted; and (7) failure to join a party under

15 Rule 19.” Under Fed. R. Civ. P. 12b)(6), a federal court may dismiss a case sua sponte when it is 16 clear that the plaintiff has not stated a claim upon which relief may be granted. See Omar v. Sea- 17 Land Serv., Inc., 813 F.2d 986, 991 (9th Cir.1987) (“A trial court may dismiss a claim sua sponte 18 under Fed. R. Civ. P. 12 (b)(6). Such a dismissal may be made without notice where the claimant 19 cannot possibly win relief.”). See also Mallard v. United States Dist. Court, 490 U.S. 296, 307- 20 08 (1989) (there is little doubt a federal court would have the power to dismiss frivolous 21 complaint sua sponte, even in absence of an express statutory provision). A complaint is 22 frivolous when it has no arguable basis in law or fact. Franklin v. Murphy, 745 F.2d 1221, 1228 23 (9th Cir. 1984).

24 1 Analysis of Plaintiffs’ Claims. Federal Rule of Civil Procedure 8 requires a complaint to 2 contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” 3 Fed. R. Civ. P. 8(a). “Each allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d). 4 Plaintiff raises a claim under the Federal Tort Claims Act (“FTCA”). See Dkt. 1-1. “In an action

5 under the FTCA, a court must apply the law the state courts would apply in the analogous tort 6 action, including federal law.” Rhoden v. United States, 55 F.3d 428, 431 (9th Cir. 1995). 7 Plaintiff contends the United States Postal Service’s negligent handling of Plaintiff’s mail caused 8 her depression and anxiety. Dkt. 1-1. It appears Plaintiff is raising a claim of negligent infliction 9 of emotional distress. 10 In Washington, “[a] plaintiff may recover for negligent infliction of emotional distress if 11 she proves negligence, that is, duty, breach of the standard of care, proximate cause, and damage, 12 and proves the additional requirement of objective symptomatology. Strong v. Terrell, 147 13 Wash. App. 376, 387, 195 P.3d 977, 982 (2008). Here, the proposed complaint fails to provide 14 sufficient factual allegations to show the United States Postal Service negligently handled

15 Plaintiff’s mail. Further, Plaintiff’s conclusory allegations that she suffers from depression and 16 anxiety because of the United States Postal Service’s negligence is insufficient to show objective 17 symptomology. Therefore, Plaintiff has failed to state a claim upon which relief can be granted. 18 Leave to Amend. Unless it is absolutely clear that no amendment can cure the defect, a 19 pro se litigant is entitled to notice of the complaint’s deficiencies and an opportunity to amend 20 prior to dismissal of the action. See Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir.1995). At 21 this time, the Court finds Plaintiff should be afforded an opportunity to amend her proposed 22 complaint to try to state a claim. Plaintiff’s proposed amended complaint, if any, should be filed 23 on or before May 25, 2023.

24 1 Decision on Application to Proceed IFP. A district court may deny leave to proceed in 2 forma pauperis at the outset if it appears from the face of the proposed complaint that the action 3 is frivolous or without merit. Minetti v. Port of Seattle, 152 F.3d 1113 (9th Cir. 1998), quoting 4 Tripati v. First Nat'l Bank & Trust, 821 F. 2d 1368, 1370 (9th Cir. 1987).

5 Based upon the above analysis of the deficiencies in the proposed complaint, the Court 6 finds it appropriate to re-note Plaintiff’s application to proceed IFP (Dkt. 1) to May 25, 2023. 7 Accordingly, it is hereby ORDERED that: 8 • Plaintiff’s application to proceed in forma pauperis (Dkt. 1) is RENOTED to MAY 25, 9 2023; and 10 • Plaintiff’s proposed amended complaint, if any, IS DUE on or before MAY 25, 2023. 11 Dated this 25th day of April, 2023. 12 A 13 David W. Christel 14 Chief United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24