The opinion
1 EASTERN DISTRICT OF WASHINGTON
May 07, 2020
2
SEAN F. MCAVOY, CLERK
UNITED STATES DISTRICT COURT
3 EASTERN DISTRICT OF WASHINGTON
4 JAY HYMAS d/b/a DOSMAN No. 4:20-cv-05036-SMJ
FARMS,
5
Plaintiff, ORDER TO AMEND OR
6 VOLUNTARILY DISMISS AND
v. DENYING MOTION FOR
7 INJUNCTION WITH LEAVE TO
UNITED STATES DEPARTMENT OF RENEW
8 INTERIOR,
9 Defendant.
10
11 On February 25, 2020, Plaintiff filed a “Complaint and Request for Injunctive
12 Relief and Restraining Order,” ECF No. 1. Plaintiff appears to challenge Defendant
13 United States Department of Interior’s land leasing practices, alleging it fails to
14 comply with the competition and notice requirements in the Federal Grant and
15 Cooperative Agreement Act (FGCAA), the Competition in Contracting Act
16 (CICA), and the Administrative Procedures Act (APA). Id. Plaintiff also makes
17 unclear allegations related to Defendant’s conduct in removing an irrigation system
18 and seeding property and regarding a Freedom of Information Act (FOIA) request
19 Plaintiff asserts he submitted to Defendant. Id. at 2. Plaintiff also filed a “Motion
20 for Injunctive Relief Expedited Relief Requested and Bid Protest.” ECF No. 9.
1 Plaintiff also filed an application for leave to proceed in forma pauperis, ECF
2 No. 2. The Court subsequently denied Plaintiff’s application with leave to renew,
3 and denied Plaintiff’s renewed application, again with leave to renew. ECF Nos. 4,
4 10 & 11. The Court has also denied Plaintiff’s request for temporary restraining
5 order within the Complaint. ECF No. 5. For the reasons discussed below, the Court
6 orders Plaintiff to amend or voluntarily dismiss the Complaint.
7 LEGAL STANDARD
8 When a pro se litigant seeks to proceed in forma pauperis, the Court must
9 screen the complaint under 28 U.S.C. § 1915(e)(2) to determine legal sufficiency.1
10 The Court must dismiss the action if it is “frivolous or malicious;” “fails to state a
11 claim upon which relief can be granted;” or “seeks monetary relief from a defendant
12 who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
13 “The language of section 1915(e)(2), as it applies to dismissals for failure to
14 state a claim, ‘parallels the language of Federal Rule of Civil Procedure 12(b)(6).’”
15 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (citing Barren v.
16 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). A claim is legally frivolous when
17
18 1 “Although §§ 1915 and 1915A reference ‘prisoners,’ they are not limited to
prisoner suits. Therefore, a court has an obligation to review a complaint filed by
19 any person proceeding in forma pauperis.” Buchinger v. County of Spokane, No.
CV-08-0388-EFS, 2009 WL 537511, at *1 (E.D. Wash. Feb. 27, 2009) (citations
20 omitted) (citing United States v. Floyd, 105 F.3d 274, 276 (6th Cir. 1997), modified
on other grounds by Callihan v. Schneider, 178 F.3d 800 (6th Cir. 1997)).
1 it lacks arguable substance in law and fact. Franklin v. Murphy, 745 F.2d 1221,
2 1227–28 (9th Cir. 1984). The Court may, therefore, dismiss a claim as frivolous
3 where it is based on an indisputably meritless legal theory or where the factual
4 contentions are clearly baseless. See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
5 The frivolity standard is similar to the test for dismissal of pro se complaints for
6 failure to state a claim. Franklin, 745 F.2d at 1228.
7 A complaint must contain “a short and plain statement of the claim showing
8 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The facts alleged in a
9 complaint are to be taken as true and must “plausibly give rise to an entitlement to
10 relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). This standard “does not require
11 detailed factual allegations, but it demands more than an unadorned, the defendant-
12 unlawfully-harmed-me accusation.” Id. at 678 (internal quotation marks omitted).
13 While the Court draws all reasonable inferences in Plaintiff’s favor, see
14 Sheppard v. David Evans & Assocs., 694 F.3d 1045, 1051 (9th Cir. 2012), it need
15 not accept “naked assertions devoid of further factual enhancement,” Iqbal, 556
16 U.S. at 678 (internal quotation marks and brackets omitted). In other words, mere
17 legal conclusions “are not entitled to the assumption of truth.” Iqbal, 556 U.S.
18 at 679.
19 //
20 //
1 DISCUSSION
2 A. Plaintiff has failed to establish standing to bring his claims
3 The jurisdiction of the federal courts is limited by the United States
4 Constitution to justiciable “Cases” and “Controversies.” U.S. Const. art. III, § 2.
5 “Standing to sue is a doctrine rooted in the traditional understanding of a case or
6 controversy.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). To establish
7 standing, a plaintiff must show that he has “(1) suffered an injury in fact, (2) that is
8 fairly traceable to the challenged conduct of the defendant, and (3) that is likely to
9 be redressed by a favorable judicial decision.” Id. (citing Lujan v. Defs. of Wildlife,
10 504 U.S. 555, 560–61 (1992)). “A suit brought by a plaintiff without Article III
11 standing is not a ‘case or controversy,’ and an Article III federal court therefore
12 lacks subject matter jurisdiction over the suit.” Cetacean Cmty. v. Bush, 386
13 F.3d 1169, 1174 (9th Cir. 2004) (citing Steel Co. v. Citizens for a Better Env’t, 523
14 U.S. 83, 101 (1998)). At the pleading stage, “the plaintiff must ‘clearly . . . allege
15 facts demonstrating’ each element” of the threshold standing inquiry. Spokeo, Inc.,
16 136 S. Ct. at 1547 (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).
17 Plaintiff does not directly allege that he has been injured in any way by
18 Defendant’s allegedly unlawful actions, nor do Plaintiff’s minimal, vague
19 assertions suggest he has suffered any injury. See ECF No. 1. Plaintiff makes a
20 vague reference to “all prejudiced farmers nationally,” but does not indicate
1 whether he falls into this group or describe how he was “prejudiced.” ECF No. 1
2 at 3. Plaintiff also asserts that Defendant wasted taxpayer funds in seeding land after
3 removing an irrigation system. ECF No. 1 at 3. However, even if the Court were to
4 infer from this allegation an attempt to establish standing as to a claim for alleged
5 waste of funds, Plaintiff’s taxpayer status is insufficient to establish standing. Ariz.
6 Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 134 (2011) (“Absent special
7 circumstances, however, standing cannot be based on a plaintiff’s mere status as a
8 taxpayer.”). As such, Plaintiff has failed to establish standing and this Court lacks
9 jurisdiction over the Complaint.
10 B. The Complaint fails to comply with Federal Rule of Civil Procedure 8
11 The current structure of the Complaint makes it difficult to determine how
12 Plaintiff alleges Defendant acted unlawfully. Federal Rule of Civil
13 Procedure 8(a)(2) requires that a complaint contain “‘a short and plain statement of
14 the claim showing that the pleader is entitled to relief,’ in order to ‘give the
15 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”
16 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
17 Gibson, 355 U.S. 41, 47 (1957)). A complaint is subject to dismissal if “one cannot
18 determine from the complaint who is being sued, for what relief, and on what
19 theory.” Dobshinsky v. High Desert State Prison, 332 Fed. App’x. 427, 428 (9th
20 Cir. 2009) (quoting McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996)).
1 In the Complaint, Plaintiff presents a single section titled “Nature of Action”
2 and a request for relief. ECF No. 1. Under Nature of Action, Plaintiff sets forth
3 mixed factual allegations, legal contentions, and legal conclusions with limited
4 citations to laws Plaintiff asserts were violated. See ECF No. 1 at 1–3. For example,
5 Plaintiff states “this action centers on the fact that the [Department of the Interior]
6 does nothing to make the leasing of use of its hundreds of thousands of acres of
7 farm land leased to private entities compliant with any contracting or financial
8 assistance law.” Id. at 1. Plaintiff later identifies the FGCAA, the CICA, and the
9 APA and alleges Defendant has failed to comply with the requirements of these
10 provisions. Id. at 1–2. However, with the exception of claiming that Defendant
11 failed to post notices of opportunities for farming on www.fbo.gov or
12 www.grants.gov, Plaintiff does not describe how Defendant failed to comply with
13 these acts. Id.
14 Plaintiff also makes allegations related to a Freedom of Information Act
15 (FOIA) request he submitted. ECF No. 1 at 2. Plaintiff asserts Defendant unlawfully
16 withheld documents responsive to Plaintiff’s FOIA request but does not clearly state
17 whether he is asserting a claim for failure to comply with FOIA or is merely
18 presenting these factual assertions as background information. See id. In any
19 amended complaint, Plaintiff should describe Defendant’s allegedly unlawful
20 conduct with particularity, clearly identify specific claims against Defendant, and
1 identify the legal basis for each claim.
2 C. The Complaint fails to state a claim on which relief can be granted
3 From the Court’s understanding of the Complaint, the crux of Plaintiff’s
4 Complaint is a challenge to Defendant’s leasing practices based on alleged failure
5 to comply with the competition and notice requirements in the FGCAA and the
6 CICA and failure to comply with the notice requirements of the APA. ECF No. 1.
7 However, Plaintiff’s broad assertions that the DOI’s conduct is illegal are legal
8 conclusions that the Court need not accept as true. Iqbal, 556 U.S. at 679. Plaintiff
9 presents almost no factual allegations in support of his contention, and he fails to
10 identify specific laws that Defendant allegedly violated. See ECF No. 1 at 1–2. If
11 Plaintiff elects to file an amended complaint, he must (1) clearly lay out factual
12 allegations regarding Defendant’s specific conduct that Plaintiff alleges was illegal,
13 including, to the extent he is able, any specific dates or date ranges on which said
14 conduct occurred, (2) specifically identify each separate claim for relief, and
15 (3) explain the legal theory on which Plaintiff is basing each claim against
16 Defendant.
17 D. Plaintiff has not shown that Defendant has been properly served
18 As of the date of this order, Plaintiff has not filed proof that Defendant either
19 has been properly served with the summons and Complaint or waived service.
20 Although Plaintiff included a page titled “Proof of Service,” this merely indicates
1 Plaintiff personally delivered a copy of the Summons to Rudy J. Verschoor. ECF
2 No. 8. First, Plaintiff, as a party to this action, is not authorized to effectuate service.
3 Fed. R. Civ. P. 4(c)(2) (“Any person who is at least 18 years old and not a party
4 may serve a summons and complaint.”). Second, Plaintiff has not shown that
5 Defendant was served with a copy of the Complaint. See Fed. R. Civ. P. 4(c)(1) (“A
6 summons must be served with a copy of the complaint.”). Finally, under Federal
7 Rule of Civil Procedure 4(i), personal service on Rudy J. Verschoor is insufficient
8 to effect service of process. See Fed. R. Civ. P. 4(i)(2) (“To serve a United States
9 agency or corporation, . . . a party must serve the United States and also send a copy
10 of the summons and of the complaint by registered or certified mail to the agency,
11 corporation, officer, or employee.”); Fed. R. Civ. P. 4(i)(1) (describing
12 requirements for service on the United States).
13 E. Plaintiff’s Motion for Injunctive Relief fails to establish that Plaintiff is
entitled to a preliminary injunction
14
15 On April 7, 2020, Plaintiff submitted a “Motion for Injunctive Relief
16 Expedited Relief Requested and Bid Protest.” ECF No. 9. Plaintiff seeks unclear
17 injunctive relief against Defendant. See ECF No. 9 at 1 (seeking “injunctive relief
18 for all farmland offered for all farming service or operations on Department of
19 Interior (DOI) controlled lands nationally for 2020, including but not limited to the
20 attached letter . . . noticing an offering . . .”); id. at 3 (requesting “injunctive relief
1 to maintain the status quo, provide national public notice opportunities (if any) and
2 prevent unlawful activity while a procurement contract or FGCAA award can be
3 properly protested . . .”). It appears Plaintiff may be seeking to enjoin an award of
4 the Cooperative Agricultural Opportunity described in the attached Exhibit A. ECF
5 No. 9 at 4.
6 “A plaintiff seeking a preliminary injunction must establish that he is likely
7 to succeed on the merits, that he is likely to suffer irreparable harm in the absence
8 of preliminary relief, that the balance of equities tips in his favor, and that an
9 injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555
10 U.S. 7, 20 (2008). In the Ninth Circuit, a plaintiff may also obtain a preliminary
11 injunction by showing that there are “serious questions going to the merits” and that
12 the balance of hardships tips “sharply” in his favor. All. for the Wild Rockies v.
13 Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
14 Plaintiff has presented no arguments on any of these factors in his Motion for
15 Injunctive Relief. See ECF No. 9. Moreover, because the Complaint fails to
16 establish that Plaintiff has standing to bring this suit, the Court cannot find that
17 Plaintiff is likely to succeed on the merits. As such, a preliminary injunction is not
18 appropriate at this time. See Carter Hawley Hale Stores, Inc. v. Limited, Inc.,
19 (finding a plaintiff who lacked standing “obviously cannot” show fair chance of
20 success on the merits).
1 OPPORTUNITY TO AMEND OR
VOLUNTARILY DISMISS COMPLAINT
2
3 Unless it is absolutely clear that amendment would be futile, a pro se litigant
4 must be given the opportunity to amend his complaint to correct any deficiencies.
5 Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds
6 by statute, 28 U.S.C. § 1915(e)(2), as recognized in Aktar v. Mesa, 698 F.3d 1202,
7 1212 (9th Cir. 2012). Within sixty (60) days of the date of this Order, Plaintiff may
8 submit an amended complaint including sufficient facts to establish that he has
9 standing to bring this suit and to state a claim upon which relief may be granted.
10 Plaintiff’s amended complaint shall consist of a short and plain statement
11 showing he is entitled to relief. Plaintiff shall allege with specificity the following:
12 (1) How Plaintiff has been injured or will imminently be injured by
Defendant’s conduct;
13
(2) Defendant’s specific conduct that Plaintiff alleges was illegal,
14 including, to the extent possible, any specific dates or date ranges on
which said conduct occurred;
15
(3) the individual claims for relief against Defendant; and
16
(4) the legal theory on which Plaintiff is basing each claim against
17 Defendant.
18 THIS AMENDED COMPLAINT WILL OPERATE AS A COMPLETE
19 SUBSTITUTE FOR (RATHER THAN A MERE SUPPLEMENT TO) THE
20 PRESENT COMPLAINT. Plaintiff may present his amended complaint on the form
1 provided by the Court in the Pro Se Packet available for download at
2 https://www.waed.uscourts.gov/civil-forms. The amended complaint must be
3 legibly rewritten or retyped in its entirety, should be an original and not a copy, and
4 may not incorporate any part of the original complaint by reference. IT MUST BE
5 CLEARLY LABELED “FIRST AMENDED COMPLAINT” and case number
6 4:20-cv-05036-SMJ must be written in the caption. PLAINTIFF IS
7 CAUTIONED THAT IF HE FAILS TO AMEND HIS COMPLAINT
8 WITHIN SIXTY (60) DAYS AS DIRECTED, THE COURT MAY DISMISS
9 IT UNDER 28 U.S.C. §§ 1915(e)(2).
10 Alternatively, the Court will permit Plaintiff to voluntarily dismiss his
11 complaint pursuant to Federal Rule of Civil Procedure 41(a). Plaintiff may submit
12 the attached Motion to Voluntarily Dismiss Complaint within sixty (60) days of the
13 date of this Order or risk dismissal under 28 U.S.C. §§ 1915(e)(2).
14 CONCLUSION
15 Liberally construing the allegations of the Complaint, the Court has identified
16 numerous deficiencies which prohibit the case from proceeding. Should Plaintiff
17 wish to pursue this matter further, he must file an amended complaint, adhering to
18 the instructions set out above. Alternatively, Plaintiff may choose to voluntarily
19 dismiss this action. If Plaintiff fails to take action within sixty days of the entry of
20 this Order, the Court will dismiss the matter for lack of subject matter jurisdiction.
1 Accordingly, IT IS HEREBY ORDERED:
2 1. Plaintiff's “Motion for Injunctive Relief Expedited Relief Requested
3 and Bid Protest,” ECF No. 9, is DENIED with leave to renew.
4 2. Plaintiff ordered to amend or voluntarily dismiss as described above.
5 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and
6 || provide copies to pro se Plaintiff.
7 DATED this 7th day of May 2020.
8 raters
SALVADOR MENYO ZA, JR.
9 United States District Sudge
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ORDER TO AMEND OR VOLUNTARILY DISMISS AND DENYING
1
2
UNITED STATES DISTRICT COURT
3 EASTERN DISTRICT OF WASHINGTON
4 JAY HYMAS d/b/a DOSMAN No. 4:20-cv-05036-SMJ
FARMS,
5
Plaintiff, MOTION TO VOLUNTARILY
6 DISMISS COMPLAINT
v.
7
UNITED STATES DEPARTMENT OF
8 INTERIOR,
9 Defendants.
10
Plaintiff Jay Hymas d/b/a Dosman Farms requests the Court grant his Motion
11
to Voluntarily Dismiss Complaint under Federal Rule of Civil Procedure 41(a).
12
Plaintiff is proceeding pro se. Defendant has not filed and answer or a motion for
13
summary judgment.
14
DATED this day of 2020.
15
16 _____________________________
Jay Hymas d/b/a Dosman Farms
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