Sonia Ines Torres v. United States Postal Service/Office

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 SONIA INES TORRES, Case No. 2:26-cv-00793-CDS-EJY

5 Plaintiffs, ORDER 6 v. and

7 UNITED STATES POSTAL REPORT and RECOMMENDATION

SERVICE/OFFICE, 8 Defendant. 9

10 11 Pending before the Court is Plaintiff’s Application to Proceed in forma pauperis (“IFP”), 12 Civil Rights Complaint, and Motion for Appointment of Counsel. ECF Nos. 1, 1-1, 3. Because any 13 potential claims Plaintiff may have against the United States are time barred, the Court recommends 14 Plaintiff’s IFP be denied as moot and the Complaint be dismissed with prejudice. 15 I. Screening Standard 16 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 17 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims 18 and dismiss claims that are frivolous, malicious, fail to state a claim upon which relief may be 19 granted or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 20 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for 21 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 22 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual 23 matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 24 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only dismiss 25 them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim 26 which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting 27 Iqbal, 556 U.S. at 678). 1 In considering whether the complaint is sufficient to state a claim, all allegations of material 2 fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship 3 v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the 4 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 5 more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 6 A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the 7 complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should be given 8 leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. United 9 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 10 II. Discussion 11 A. Plaintiff’s Complaint. 12 Plaintiff’s contentions arise from her November 2007 move to Las Vegas, Nevada. ECF No. 13 1-1 at 3. Prior to moving, Plaintiff alleges she worked as a mail carrier for the United States Postal 14 Service (“USPS”) in East Lansing, Michigan. Id. At some time in October 2007, Plaintiff says she 15 told the East Lansing Postmaster that she was moving to Las Vegas and asked for advice regarding 16 how to continue her employment with the USPS once she moved. Id. The Postmaster allegedly 17 looked at a “bulletin” and told Plaintiff to visit a Post Office in Las Vegas after her move to inquire 18 into continuing her employment. Id. 19 Upon arriving in Las Vegas Plaintiff called a Las Vegas Post Office inquiring into 20 employment,1 but was told “to come to H/R … in December” as she had just missed November’s 21 reinstatement date. Id. at 3-4. Plaintiff says that, as instructed, she went to the Post Office in 22 December, but was advised her records from East Lansing had not arrived. Id. at 4. Plaintiff alleges 23 that at this time she was told to “fill out a lot of forms,” provide her work ID, and wait for her 24 transfer. Id. Some time later, Plaintiff says she received a letter advising her that she needed to take 25 a “test” despite her prior work history. Id. 26 27 1 In January 2008, Plaintiff appears to have received a letter from human resources stating that 2 she was on the waiting list for a USPS job in Las Vegas. Id.; ECF No. 1-2 at 1. Plaintiff also says 3 she called USPS human resources in Las Vegas to ask if her “records” from East Lansing had been 4 received and was told they were not. ECF No. 1-1 at 4. Plaintiff avers she also repeatedly called 5 the East Lansing Post Office in an effort to speak with the Postmaster who originally gave her advice, 6 but was “always told he was not there.” Id. Over the following years, Plaintiff submits she called 7 and wrote certified letters to the East Lansing and Las Vegas Post Offices about the status of her 8 “records” but never heard back. Id. at 4-5. 9 In all, Plaintiff contends USPS never provided her with “any forms to sign” about her move 10 and efforts to obtain USPS employment in Las Vegas. Id. at 5; ECF No. 1-3 at 3. Plaintiff says she 11 called and wrote to USPS locations throughout the United States seeking the “whereabouts” of her 12 personnel records and the Postal Regulation Registration/Transfer form known as “PS Form 2574,” 13 which was never given to her. ECF No. 1-1 at 5. See also ECF No. 1-2 at 3-4. Eventually, the 14 National Personnel Records Center allegedly sent Plaintiff a “large package” with documents from 15 her time working in East Lansing, but that box did not contain a “PS Form 2574.” ECF No. 1-3 at 16 3. Plaintiff repeatedly expresses frustration that she relied on the East Lansing Postmaster’s advice 17 regarding how to continue her employment with the USPS following her move to Las Vegas. ECF 18 Nos. 1-1 at 5; 1-3 at 4. 19 B. Plaintiff’s Conceivable Claims are Time Barred. 20 Plaintiff’s Complaint does not identify a single cause of action. ECF No. 1-3 at 2-4. While 21 she is clearly upset about not returning to work for the USPS after her November 2007 move to Las 22 Vegas, there can be no dispute that she first learned she was on a “reinstatement” list in January 23 2008. ECF No. 1-2 at 1. That letter made clear to Plaintiff that if she was not recalled within one 24 year, she was required to request to remain on the list in writing. Id. Plaintiff’s Complaint is devoid 25 of facts showing she ever notified the USPS of her desire to remain on the reinstatement list, but 26 instead repeatedly focuses on a form that she did not receive (the PS 2574). Nevertheless, what is 27 clear is that long before Plaintiff filed her Complaint on March 17, 2026, she was aware that she had 1 Vegas. Even granting that Plaintiff received a letter in January 2008 stating it could take five years 2 for her reinstatement (ECF No. 1-2 at 1), which would perhaps explain waiting until 2013 to bring 3 her Complaint, Plaintiff asserts no facts that would or can explain why she waited until March 2026 4 to come before the Court. 5 Under the Postal Reorganization Act, the USPS is “an independent establishment of the 6 executive branch” of the United States Government. Dolan v. U.S. Postal Service, 546 U.S. 481, 7 483-84 (2006) (citing 39 U.S.C. § 201). As such, a suit against the USPS is treated as a suit against 8 the United States. Anderson v. U.S. Postal Serv.,761 F.2d 527, 528 (9th Cir. 1985) citing Sportique 9 Fashions, Inc. v. Sullivan, 597 F.2d 664, 665 (9th Cir. 1979) (dictum). The Federal Tort Claims Act 10 (“FTCA”) “vests the federal district courts with exclusive jurisdiction over suits arising from the 11 negligence of Government employees.” Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992). 12 Under 28 U.S.C. § 1658(a), all claims against the United States sounding in torts must be presented 13 “in writing to the appropriate Federal agency within two years after such claim accrues,” and a civil 14 action must be filed no later than six months after the final agency decision regarding the written 15 submission. 16 Other civil non-tort claims against the United States, including claims brought under the 17 Freedom of Information Act, must be brought “within six years after the right of action first accrues.” 18 See Ahluwalia v. U.S. Postal Serv., 914 F.2d 1496, 1990 WL 140714, at *1 (9th Cir. 1990) (citing 19 28 U.S.C. § 2401); Zaldivar v. United States Dep’t of Veterans Affs., 695 Fed.Appx. 319, 320 (9th 20 Cir. 2017). Claims under the Privacy Act are subject to a two-year statute of limitations. 5 U.S.C. 21 § 552a(g)(5). Finally, federal employees “who believe they have been discriminated against on the 22 basis of race; color; religion; sex; national origin; age; disability; genetic information; or pregnancy, 23 childbirth, or related medical conditions” must contact an Equal Employment Opportunity 24 Counselor within 45 days of the date of the alleged discrimination. 29 C.F.R. 1614.105; see also 25 Lyons v. England, 307 F.3d 1092, 1105 (9th Cir. 2002). 26 Still, the Court considered Plaintiff’s ability to amend her Complaint to state a claim under 27 one of the above statutes. However, any claims based on the set of facts presented arose, if at all, 1 Plaintiff learned in January 2008 that she was on the waiting list for a mail carrier position in Las 2 Vegas. ECF No. 1-2 at 1. To the extent Plaintiff is attempting to state a claim based on being on 3 that list and not recalled, there is no doubt she was aware of her alleged injury when, as she alleges, 4 she repeatedly heard nothing in response to repeated, unending efforts to obtain the status of her 5 records. ECF Nos. 1-1 at 4-5; 1-3 at 1. Thus, while Plaintiff, at some point in time, may have been 6 able to allege enough facts to state a claim, the statute of limitations for all potential causes of action 7 have expired. Viray v. United States Postal Serv., Case No. 18-CV-00099-BLF, 2018 WL 1950001, 8 *4 (N.D. Cal. Apr. 25, 2018) (holding any of Plaintiff’s potential claims against USPS based on an 9 incident in August 2009 “are barred by the statutes of limitations under any conceivable theory”).2 10 Further, the Court finds that no equitable considerations excuses Plaintiff’s delay in bringing 11 this lawsuit nearly two decades after she first encountered facts that underly her Complaint.3 While 12 the Court recognizes Plaintiff might be able to allege clarifying facts that would identify her actual 13 claims, the Court nevertheless finds that any amendment would be futile because the passage of time 14 has barred her ability to bring those claims against the United States. Viray, 2018 WL 1950001, *4. 15 Accordingly, the Court recommends her Complaint be dismissed with prejudice. 16 C. The Court Denies Appointment of Counsel. 17 As a general proposition, a civil litigant has no right to counsel. Lassiter v. Department of 18 Social Services of Durham County, 452 U.S. 18 (1981); Storseth v. Spellman, 654 F.2d 1349, 1353 19 2 For example, if Plaintiff intended on suing under the Privacy Act based on the accuracy of or access to her 20 employment records arising from the January 2008 letter, the two-year statute of limitation expired in 2010. 5 USC § 552a(g)(5). If Plaintiff wanted to sue USPS for employment discrimination based on her not being reinstated in Las 21 Vegas as a mail carrier, she had to contact an EEO counselor within 45 days of the action Plaintiff alleges was discriminatory. Lyons, 307 F.3d at 1105. And under the “catch-all” statute of limitations, 28 USC § 2401(a), all other 22 claims would have expired at the latest in 2014, six years after the conduct alleged in the Complaint. Viray v. United States Postal Serv., Case No. 18-CV-00099-BLF, 2018 WL 984874, at *3 (N.D. Cal. Feb. 20, 2018) (as alleged, any 23 conceivable claim against USPS arising from an incident in August 2009 would be blocked by any applicable statute of limitations). 3 Equitable considerations may toll the statute of limitation to bring certain claims. U.S. v. Wong, 575 U.S. 402, 24 418 (2015) (equitable tolling applies to FTCA claims); Lyons, 307 F.3d at 1105 n.5 (deadline to contact an EEO Counselor to pursue a discrimination claim was subject to equitable tolling); Doe v. Garland, 17 F.4th 941, 946 (9th Cir. 25 2021) (equitable tolling applies to Privacy Act claims). Equitable tolling applies when (1) a plaintiff has been pursuing her rights diligently, and (2) some extraordinary circumstances stood in her way to prevent timely filing. Smith v. Davis, 26 953 F.3d 582, 588 (9th Cir. 2020) (citations omitted). Extraordinary circumstances means that the reason for “the litigant’s delay are both extraordinary and beyond its control.” Menominee Indian Tribe of Wisconsin v. United States, 27 577 U.S. 250, 257 (2016). Here, Plaintiff’s Complaint does not present any evidence of extraordinary circumstances 1 (9th Cir. 1981). Under “exceptional circumstances” a court may appoint counsel for indigent civil 2 litigants pursuant to 28 U.S.C. § 1915(e)(1). Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 3 (9th Cir. 2004), cert. denied sub nom. Gerber v. Agyeman, 545 U.S. 1128 (2005). When determining 4 whether “exceptional circumstances” exist, a court must consider “the likelihood of success on the 5 merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity 6 of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). The Court finds 7 Plaintiff’s claims are time barred and thus, her likelihood of success is minimal. In the end, 8 appointment of counsel is unwarranted. 9 III. Order 10 IT IS HEREBY ORDERED that Plaintiff’s Motion for Appointment of Counsel (ECF No. 11 3) is DENIED. 12 IV. Recommendation 13 IT IS HEREBY RECOMMENDED that Plaintiff’s application to proceed in forma pauperis 14 (ECF No. 1) be DENIED as moot. 15 IT IS FURTHER RECOMMENDED that Plaintiff’s Complaint (ECF No. 1-1) be 16 DISMISSED with prejudice. 17 Dated this 27th day of April, 2026.

19 ELAYNA J. YOUCHAH 20 UNITED STATES MAGISTRATE JUDGE 21 22 NOTICE 23 Pursuant to Local Rule IB 3-2 any objection to this Report and Recommendation must be in 24 writing and filed with the Clerk of the Court within 14 days of service of this document. The Supreme 25 Court has held that the courts of appeal may determine that an appeal has been waived due to the 26 failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This 27 circuit has also held that (1) failure to file objections within the specified time and (2) failure to 1 order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 2 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27