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Fichtner v. United States

United States District Court, D. Arizona

January 8, 2019

Nancy Patricia Fichtner, Plaintiff,
v.
United States of America, et al., Defendants.

          ORDER

          HONORABLE DIANE J. HUMETEWA UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiff's First Amended Complaint[1] (“FAC”) (Doc. 11). In a prior Order, the Court granted Plaintiff's Application to Proceed in District Court without Prepaying Fees or Costs, otherwise known as a motion for leave to proceed in forma pauperis (“IFP”) (Doc. 8). Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court then screened Plaintiff's original Complaint (Doc. 1) and found Plaintiff's allegations failed to state a claim for relief. (Doc. 8 at 4). The Court granted Plaintiff leave to amend. (Id.)

         I. LEGAL STANDARDS

         The determination that Plaintiff may proceed IFP does not end the inquiry under 28 U.S.C. § 1915. When a party has been granted IFP status, the Court must review the complaint to determine whether the action:

(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.

See 28 U.S.C. § 1915(e)(2)(B).[2] In conducting such a review, “[i]t is . . . clear that section 1915(e) not only permits but requires a district court to dismiss an [IFP] complaint that fails to state a claim.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citation omitted).

         Rule 8(a) of the Federal Rules of Civil Procedure requires that:

A pleading which sets forth a claim for relief, whether an original claim, counter-claim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.

         While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).[3] “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. A complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S., at 556). A complaint that provides “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S., at 555. Nor will a complaint suffice if it presents nothing more than “naked assertions” without “further factual enhancement.” Id. at 557.

         II. FAC STATUTORY SCREENING

         In her FAC, Plaintiff provides that in 2009, while working at “Grand Junction, Colorado VA Hospital, ” she submitted a “Beneficial Suggestion” as part of President Obama's SAVE award competition. (Doc. 11 at 4). Plaintiff alleges that her “Beneficial Suggestion” won the SAVE award competition and received “Presidential endorsement” and was “implement nationally on March 1, 2011 as a mandated VA Directive #2011-001[;] therefore, she was entitled to compensation for her “Beneficial Suggestion” pursuant to 5 U.S.C. § 4505. Plaintiff, however, avers that she was never compensated.

         In the FAC, Plaintiff named the United States, the United States Department of Veterans Affairs, and several individual Department of Veterans Affairs employees. As a general matter, the United States is immune from suit and can be sued only to the extent that it has waived its immunity. See United States v. Orleans, 425 U.S. 807, 814 (1976). Plaintiff fails to allege any facts or cite any authority that the United States has waived its sovereign immunity for a suit of this nature. Additionally, while Plaintiff provides that the VA failed to compensate her, the statute she cites states does not require an agency to compensate for suggestions, it only provides that an agency may compensate an employee. See 5 U.S.C. § 4505 (“An agency may pay or grant an award under this subchapter . . .”). Plaintiff must state factual allegations and explain ...


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