Salvador v. Immigration Customs of Enforcement, No. 3:2012cv01727 - Document 5 (S.D. Cal. 2012)
Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis; denying 3 Motion to Appoint Counsel; and Sua Sponte Dismissing Complaint for Failing to State a Claim. However, Plaintiff is GRANTED forty five (45) days leave from the date this Order is filed in which to file a First Amended Complaint which cures the deficiencies of pleading noted above. Signed by Judge Janis L. Sammartino on 8/7/2012. (Plaintiff served with blank complaint form and order via U.S. Mail Service)(mtb)
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Salvador v. Immigration Customs of Enforcement 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 12cv1727 JLS (MDD) IMMIGRATION CUSTOMS OF ENFORCEMENT, 18 Defendant. (3) SUA SPONTE DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM 19 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 /// -1- 12cv1727 JLS (MDD) 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 /// -2- 12cv1727 JLS (MDD) 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 -3- 12cv1727 JLS (MDD) 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 is mostly illegible and, at times, incoherent. Plaintiff appears to 5 allege that she is currently housed in an immigration detention center. Plaintiff names as the 6 only Defendant, the “Immigration Customs of Enforcement,” and claims that the conditions of 7 her confinement are “dangerous.” (Compl. at 2.) In addition, Plaintiff alleges that she has been 8 denied the right to wear a scarf that is part of her religion as a Muslim. (Id.) 9 To the extent that Plaintiff may be alleging facts relating to her confinement in a Federal 10 Immigration center and she may be trying to claim violation of her civil rights by federal actors, 11 the Court construes this matter as arising under Bivens v. Six Unknown Named Fed. Narcotics 12 Agents, 403 U.S. 388 (1971). Bivens established that “compensable injury to a constitutionally 13 protected interest [by federal officials alleged to have acted under color of federal law] could be 14 vindicated by a suit for damages invoking the general federal question jurisdiction of the federal 15 courts [pursuant to 28 U.S.C. § 1331].” Butz v. Economou, 438 U.S. 478, 486 (1978). “Actions 16 under § 1983 and those under Bivens are identical save for the replacement of a state actor under 17 § 1983 by a federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). 18 To state a private cause of action under Bivens, Plaintiff must allege: (1) that a right 19 secured by the Constitution of the United States was violated, and (2) that the violation was 20 committed by a federal actor. Id.; Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 624 21 (9th Cir. 1988). Bivens provides that “federal courts have the inherent authority to award 22 damages against federal officials to compensate plaintiffs for violations of their constitutional 23 rights.” Western Center for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000). 24 However, a Bivens action may only be brought against the responsible federal official in his or 25 her individual capacity. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1988). Bivens 26 does not authorize a suit against the government or its agencies for monetary relief. FDIC v. 27 Meyer, 510 U.S. 471, 486 (1994); Thomas-Lazear v. FBI, 851 F.2d 1202, 1207 (9th Cir. 1988); 28 Daly- Murphy, 837 F.2d at 355. Thus, Plaintiff cannot hold an agency of the government, such -4- 12cv1727 JLS (MDD) 1 as “Immigration Customs of Enforcement,” liable for alleged civil rights violations under Bivens. 2 Plaintiff must identify the responsible federal official as the defendants in this matter. 3 Nor does Bivens provide a remedy for alleged wrongs committed by a private entity 4 alleged to have denied Plaintiff’s constitutional rights under color of federal law. Correctional 5 Services Corp. v. Malesko, 534 U.S. 61, 69 (2001) (“‘[T]he purpose of Bivens is to deter the 6 officer,’ not the agency.”) (quoting Meyer, 510 U.S. at 485); Malesko, 534 U.S. at 66 n.2 7 (holding that Meyer “forecloses the extension of Bivens to private entities.”). 8 Based on the factual allegations set forth above, the Court simply cannot determine the 9 true nature of her allegations or whether she is attempting to state a claim under the federal law. 10 Some of Plaintiff’s allegations suggest that she is attempting to allege an Eighth Amendment 11 violation. However, the Supreme Court recently held that an inmate cannot bring a Bivens 12 action against an employee of a private entity for damages pursuant to alleged Eighth 13 Amendment violations. See Minneci v. Pollard, 132 S.Ct. 617, 626 (2012). 14 In Minneci, the Supreme Court held that 15 [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.” 16 17 18 19 Id. 20 Thus, while Plaintiff may be able to raise her Eighth Amendment claims against the 21 private employees as a tort claim in state court, her claim is not cognizable as a Bivens action 22 in this Court. 23 For all the reasons set forth above, Plaintiff’s entire action is dismissed for failing to state 24 a claim upon which relief may be granted. Plaintiff will be given the opportunity to file an 25 Amended Complaint in order to correct the deficiencies of pleading identified by the Court. 26 /// 27 /// 28 /// -5- 12cv1727 JLS (MDD) 1 IV. 2 CONCLUSION AND ORDER 3 Good cause appearing therefor, IT IS HEREBY ORDERED that: 4 1. 5 Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 2] is GRANTED. 6 2. Plaintiff’s Motion to Appoint Counsel [ECF No. 3] is DENIED without prejudice. 7 IT IS FURTHER ORDERED that: 8 3. Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C. 9 § 1915(e)(2)(b). However, Plaintiff is GRANTED forty five (45) days leave from the date this 10 Order is filed in which to file a First Amended Complaint which cures the deficiencies of 11 pleading noted above. 12 reference to the superseded pleading. See S.D. CAL. CIVLR 15.1. Defendants not named and 13 any claim not re-alleged in the Amended Complaint will be considered waived. See King v. 14 Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). If Plaintiff fails to file an Amended Complaint 15 within 45 days, this case shall remain dismissed for failing to state a claim pursuant to 28 U.S.C. 16 § 1915(e)(2). 17 4. 18 Plaintiff’s Amended Complaint must be complete in itself without The Clerk of Court is directed to mail a court approved civil rights complaint to Plaintiff. 19 20 21 22 23 DATED: August 7, 2012 Honorable Janis L. Sammartino United States District Judge 24 25 26 27 28 -6- 12cv1727 JLS (MDD)
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