Salvador v. Alvarado Parkway Hospital, No. 3:2012cv01855 - Document 5 (S.D. Cal. 2012)
Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis, denying without prejudice 3 Motion to Appoint Counsel. Plaintiff's Complaint is dismissed without prejudice. Plaintiff is granted forty five (45) days leave from the date this Order is filed in which to file a First Amended Complaint. Signed by Judge Larry Alan Burns on 8/9/12. (All non-registered users served via U.S. Mail Service)(kaj)
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Salvador v. Alvarado Parkway Hospital Doc. 5 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 8 9 10 11 12 AMINA SALVADOR, Detainee No. A200968077, Civil No. Plaintiff, 13 vs. (2) DENYING MOTION TO APPOINT COUNSEL [ECF No. 3]; and 16 17 ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2]; 14 15 12cv1855 LAB (JMA) ALVARADO PARKWAY HOSPITAL, 18 Defendant. 19 (3) SUA SPONTE DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM AND AS FRIVOLOUS 20 21 Amina Salvador (“Plaintiff”), currently detained at the San Diego Correctional Facility 22 located in San Diego, California, and proceeding pro se, has filed a civil action. Plaintiff has not 23 prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, she has filed a Motion to 24 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [ECF No. 2], along with 25 a Motion to Appoint Counsel [ECF No. 3]. 26 /// 27 /// 28 /// K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\12cv1855-grt IFP & dsm.wpd -1- 12cv1855 LAB (JMA) Dockets.Justia.com 1 I. 2 MOTION TO PROCEED IFP 3 All parties instituting any civil action, suit or proceeding in a district court of the United 4 States, except an application for writ of habeas corpus must pay a filing fee of $350. See 28 5 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee 6 only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See 7 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, “[u]nlike other indigent 8 litigants, prisoners proceeding IFP must pay the full amount of filing fees in civil actions and 9 appeals pursuant to the PLRA [Prison Litigation Reform Act].” Agyeman v. INS, 296 F.3d 871, 10 886 (9th Cir. 2002). As defined by the PLRA, a “prisoner” is “any person incarcerated or 11 detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent 12 for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, 13 or diversionary program.” 28 U.S.C. § 1915(h). Under this definition, “an alien detained by the 14 INS pending deportation is not a ‘prisoner’ within the meaning of the PLRA,” because 15 deportation proceedings are civil, rather than criminal in nature, and an alien detained pending 16 deportation has not necessarily been “accused of, convicted of, sentenced or adjudicated 17 delinquent for, a violation of criminal law.” Agyeman, 296 F.3d at 886. Thus, because Plaintiff 18 claims she was civilly detained pursuant to immigration or deportation proceedings, and not a 19 “prisoner” as defined by 28 U.S.C. § 1915(h), the filing fee provisions of 28 U.S.C. § 1915(b) 20 do not apply to her. 21 Accordingly, the Court has reviewed Plaintiff’s affidavit of assets, just as it would for any 22 other non-prisoner litigant seeking IFP status, see S.D. CAL. CIVLR 3.2(d), finds it is sufficient 23 to show that Plaintiff is unable to pay the fees or post securities required to maintain this action, 24 and hereby GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF 25 No. 2]. 26 /// 27 /// 28 /// K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\12cv1855-grt IFP & dsm.wpd -2- 12cv1855 LAB (JMA) 1 II. 2 MOTION FOR APPOINTMENT OF COUNSEL 3 Plaintiff also requests the appointment of counsel to assist her in prosecuting this civil 4 action. The Constitution provides no right to appointment of counsel in a civil case, however, 5 unless an indigent litigant may lose her physical liberty if she loses the litigation. Lassiter v. 6 Dept. of Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), 7 district courts are granted discretion to appoint counsel for indigent persons. This discretion may 8 be exercised only under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 9 (9th Cir. 1991). “A finding of exceptional circumstances requires an evaluation of both the 10 ‘likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se 11 in light of the complexity of the legal issues involved.’ Neither of these issues is dispositive and 12 both must be viewed together before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 13 789 F.2d 1328, 1331 (9th Cir. 1986)). 14 The Court denies Plaintiff’s request without prejudice because, for the reasons set forth 15 below, neither the interests of justice nor exceptional circumstances warrant appointment of 16 counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 17 1017. 18 III. 19 SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) 20 Any complaint filed by a person proceeding IFP is subject to sua sponte dismissal by the 21 Court to the extent it contains claims which are “frivolous, malicious, fail to state a claim upon 22 which relief may be granted, or seek monetary relief from a defendant immune from such relief.” 23 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) 24 (holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez 25 v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits, 26 but requires a district court to dismiss an in forma pauperis complaint that fails to state a 27 claim.”). “[W]hen determining whether a complaint states a claim, a court must accept as true 28 all allegations of material fact and must construe those facts in the light most favorable to the K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\12cv1855-grt IFP & dsm.wpd -3- 12cv1855 LAB (JMA) 1 plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also Barren v. Harrington, 2 152 F.3d 1193, 1194 (9th Cir. 1998) (§ 1915(e)(2) “parallels the language of Federal Rule of 3 Civil Procedure 12(b)(6).”). 4 Plaintiff’s Complaint contains a number of rambling and incoherent allegations. Plaintiff 5 alleges that she was held at Alvarado Parkway Hospital for three days “against [her] will.” 6 (Compl. at 2.) Most of Plaintiff’s Complaint contains statements that appear to be delusional. 7 Plaintiff alleges that there is a “contract killing” on her life and the hospital staff had a 8 “conspiracy to attempt aggravated murder and rape.” (Id. at 3.) A complaint is frivolous “where 9 it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). 10 Here, the Court finds Plaintiff’s claims to be frivolous because they lack even “an arguable basis 11 either in law or in fact,” and appear “fanciful,” “fantastic,” or “delusional.” Neitzke, 490 U.S. 12 at 325, 328. Thus, the Court dismisses the entirety of Plaintiff’s Complaint as frivolous. 13 To the extent that Plaintiff may be alleging facts relating to her detainment in a Federal 14 Immigration center and she may be trying to claim violation of her civil rights by federal actors, 15 the Court also construes this matter as arising under Bivens v. Six Unknown Named Fed. 16 Narcotics Agents, 403 U.S. 388 (1971). Bivens established that “compensable injury to a 17 constitutionally protected interest [by federal officials alleged to have acted under color of 18 federal law] could be vindicated by a suit for damages invoking the general federal question 19 jurisdiction of the federal courts [pursuant to 28 U.S.C. § 1331].” Butz v. Economou, 438 U.S. 20 478, 486 (1978). “Actions under § 1983 and those under Bivens are identical save for the 21 replacement of a state actor under § 1983 by a federal actor under Bivens.” Van Strum v. Lawn, 22 940 F.2d 406, 409 (9th Cir. 1991). 23 To state a private cause of action under Bivens, Plaintiff must allege: (1) that a right 24 secured by the Constitution of the United States was violated, and (2) that the violation was 25 committed by a federal actor. Id.; Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 624 26 (9th Cir. 1988). Bivens provides that “federal courts have the inherent authority to award 27 damages against federal officials to compensate plaintiffs for violations of their constitutional 28 rights.” Western Center for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000). K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\12cv1855-grt IFP & dsm.wpd -4- 12cv1855 LAB (JMA) 1 However, a Bivens action may only be brought against the responsible federal official in his or 2 her individual capacity. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1988). Bivens 3 does not authorize a suit against the government or its agencies for monetary relief. FDIC v. 4 Meyer, 510 U.S. 471, 486 (1994); Thomas-Lazear v. FBI, 851 F.2d 1202, 1207 (9th Cir. 1988); 5 Daly- Murphy, 837 F.2d at 355. 6 Nor does Bivens provide a remedy for alleged wrongs committed by a private entity 7 alleged to have denied Plaintiff’s constitutional rights under color of federal law. Correctional 8 Services Corp. v. Malesko, 534 U.S. 61, 69 (2001) (“‘[T]he purpose of Bivens is to deter the 9 officer,’ not the agency.”) (quoting Meyer, 510 U.S. at 485); Malesko, 534 U.S. at 66 n.2 10 (holding that Meyer “forecloses the extension of Bivens to private entities.”). 11 Based on the factual allegations set forth above, the Court simply cannot determine the 12 true nature of her allegations or whether she is attempting to state a claim under the federal law. 13 Some of Plaintiff’s allegations suggest that she is attempting to allege an Eighth Amendment 14 violation. However, the Supreme Court recently held that an inmate cannot bring a Bivens action 15 against an employee of a private entity for damages pursuant to alleged Eighth Amendment 16 violations. See Minneci v. Pollard, 132 S.Ct. 617, 626 (2012). 17 In Minneci, the Supreme Court held that 18 [W]here “a federal prisoner seeks damages from privately employed personnel working at a privately operated federal prison, where the conduct allegedly amounts to a violation of the Eighth Amendment, and where that conduct is a kind that typically falls within the scope of traditional state tort law (such as the conduct involving improper medical care at issue here), the prisoner must seek a remedy under state tort law. We cannot imply a Bivens remedy in such a case.” 19 20 21 22 Id. 23 Thus, while Plaintiff may be able to raise her Eighth Amendment claims against the 24 private employees as a tort claim in state court, her claim is not cognizable as a Bivens action in 25 this Court. 26 Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of 27 Am., 511 U.S. 375, 377 (1994). Federal question jurisdiction exists over “civil actions arising 28 K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\12cv1855-grt IFP & dsm.wpd -5- 12cv1855 LAB (JMA) 1 under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Because 2 Plaintiff’s Complaint does not comply with § 1331, there is no subject matter jurisdiction. 3 For all the reasons set forth above, Plaintiff’s entire action is dismissed as frivolous, for 4 failing to state a claim upon which relief may be granted and for lack of subject matter 5 jurisdiction. 6 IV. 7 CONCLUSION AND ORDER 8 Good cause appearing therefor, IT IS HEREBY ORDERED that: 9 1. 10 Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 2] is GRANTED. 11 2. Plaintiff’s Motion to Appoint Counsel [ECF No. 3] is DENIED without prejudice. 12 IT IS FURTHER ORDERED that: 13 3. Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C. 14 § 1915(e)(2)(b). However, Plaintiff is GRANTED forty five (45) days leave from the date this 15 Order is filed in which to file a First Amended Complaint which cures the deficiencies of 16 pleading noted above. 17 reference to the superseded pleading. See S.D. CAL. CIVLR 15.1. Defendants not named and 18 any claim not re-alleged in the Amended Complaint will be considered waived. See King v. 19 Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). If Plaintiff fails to file an Amended Complaint 20 within 45 days, this case shall remain dismissed for failing to state a claim pursuant to 28 U.S.C. 21 § 1915(e)(2). Plaintiff’s Amended Complaint must be complete in itself without 22 23 DATED: August 9, 2012 24 HONORABLE LARRY ALAN BURNS United States District Judge 25 26 27 28 K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\12cv1855-grt IFP & dsm.wpd -6- 12cv1855 LAB (JMA)
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