Lettieri v. T-Mobile

Opinion

UNITED STATES DISTRICT COURT AT SEATTLE DAVID CARMINE LETTIERI, CASE NO. C24-0028-KKE

Plaintiff(s), ORDER DECLINING TO SERVE AND v. PROVIDING LEAVE TO AMEND THE COMPLAINT T-MOBILE, et al.,

Defendant(s).

This matter comes before the Court on the civil rights complaint filed by Plaintiff David Carmine Lettieri, proceeding pro se. See Dkt. Nos. 1, 7. In granting Plaintiff’s application to proceed in forma pauperis, U.S. Magistrate Judge Brian Tsuchida recommended that the Court screen Plaintiff’s complaint under 28 U.S.C. § 1915(e)(2)(B) before issuing summons. Dkt. No. 6. Based on its review, the Court declines to serve the complaint at this time and will provide Plaintiff leave to file an amended pleading by April 5, 2024, to cure the deficiencies identified herein. The Court will dismiss a complaint at any time if the action fails to state a claim, raises frivolous or malicious claims, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). In order to state a claim for relief under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), a plaintiff must show that (1) a person acting under color of federal law committed the conduct at issue; and (2) the federal actor’s conduct deprived the plaintiff of a right, privilege, or immunity protected by the United States Constitution or the laws of the United States. See Beltran v. United States, No. 3:15-CV-00785-SI, 2015 WL 7722414, at *3 (citing Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988)). “A Bivens action can

be maintained only against federal officials in their individual capacities.” Leon v. Elledge, No. 2:22-cv-00851-BHS-TLF, 2022 WL 17904063, at *2 (W.D. Wash. Dec. 23, 2022) (citing Morgan v. United States, 323 F.3d 776, 780 n.3 (9th Cir. 2007)). Plaintiff’s complaint purports to raise Bivens claims against federal officials and indicates that the constitutional rights at issue in his case relate to the fabrication of evidence and his right to confrontation and a fair trial. See Dkt. No. 7 at 3–4. Plaintiff has not explained how the four Defendants listed in the complaint, which include T-Mobile and a T-Mobile employee, were acting under color of federal law, nor has he explained how actions or inactions he describes violated his constitutional rights. See id. at 2–3, Dkt. No. 1-2.

If Plaintiff intends to pursue a Bivens claim in this Court, he must file an amended complaint no later than April 5, 2024. In his amended complaint, he must write a short, plain statement telling the Court: (1) the constitutional right he believes was violated; (2) the name of the person(s) who violated the right; (3) exactly what each individual did or failed to do; (4) how the individual’s action or inaction violated his constitutional rights; and (5) what specific injury he suffered because of the individual’s conduct. The amended complaint will act as a complete substitute for the original complaint and shall be presented on the form provided by the Court. If Plaintiff fails to file an amended complaint and/or fails to adequately address the issues identified in this order, the Court may dismiss this action.

The clerk is directed to send Plaintiff (1) the appropriate forms for filing a civil rights complaint, (2) a copy of this order, and (3) the Pro Se Instruction Sheet. Dated this 5th day of March, 2024.

A Kymberly K. Evanson United States District Judge