Matus v. U.S. Customs and Border Protection, No. 3:2021cv01663 - Document 5 (S.D. Cal. 2021)
Court Description: ORDER Granting Motion To Proceed In Forma Pauperis; And Order Dismissing Complaint 2 . Signed by Judge Larry Alan Burns on 11/30/2021. (dxf)
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Matus v. U.S. Customs and Border Protection Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARIA DE LOS ANGELES MATUS 12 Plaintiff, 13 v. 14 U.S. CUSTOMS AND BORDER PROTECTION 15 16 Defendant. Case No.: 21cv1663-LAB (MDD) ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; AND ORDER DISMISSING COMPLAINT 17 18 Plaintiff Maria de los Angeles Matus, proceeding pro se, filed her Complaint 19 against Defendant U.S. Customs and Border Patrol (“CBP”) pursuant to the 20 Federal Tort Claims Act (“FCTA”), 28 U.S.C. 1346(b)(1), and Bivens v. Six 21 Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.C. 388 22 (1971). (Dkt. 1). Matus alleges that on January 21, 2020, her constitutional rights 23 were violated by unidentified CBP agents who arrested her at the San Ysidro port 24 of entry, accused her of illegal human trafficking, impounded her car, and detained 25 her for hours, only to ultimately release her and order her to pay a $5,000 fine. 26 (Dkt. 1 at 2). She further alleges she was denied food, water, and medical 27 treatment for an undisclosed period during her detention. (Id.). She seeks money 28 damages and restitution. (Id. at 6). 1 21cv1633 Dockets.Justia.com 1 Matus did not pay the statutory and administrative civil filing fees required by 2 28 U.S.C. § 1914(a). Instead, Matus seeks leave to proceed in forma pauperis 3 (“IFP”) pursuant to 28 U.S.C. § 1915(a). (Dkt. 2). 4 I. Plaintiff’s Motion to Proceed IFP 5 All parties instituting any civil action, suit, or proceeding in a district court of 6 the United States, except for an application for writ of habeas corpus, must pay a 7 filing fee of $400. 1 See 28 U.S.C. § 1914(a). But a litigant who, because of 8 indigency, is unable to pay the required fees or security may petition the Court to 9 proceed without making such payment. 28 U.S.C. § 1915(a). The facts of an 10 affidavit of poverty must be stated with some particularity, definiteness, and 11 certainty. Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing 12 United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1984)). 13 The determination of indigency falls within the district court’s discretion. 14 California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d, 506 15 U.S. 194 (1993) (“Section 1915 typically requires the reviewing court to exercise 16 its sound discretion in determining whether the affiant has satisfied the statute’s 17 requirement of indigency.”). It is well-settled that a party need not be completely 18 destitute to proceed in forma pauperis. Adkins v. E.I. DuPont de Nemours & Co., 19 335 U.S. 331, 339–40 (1948). To satisfy the requirements of 28 U.S.C. § 1915(a), 20 “an affidavit [of poverty] is sufficient which states that one cannot because of his 21 poverty pay or give security for costs . . . and still be able to provide himself and 22 dependents with the necessities of life.” Id. at 339. At the same time, however, “the 23 same even-handed care must be employed to assure that federal funds are not 24 25 26 27 28 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 21cv1633 1 squandered to underwrite, at public expense, . . . the remonstrances of a suitor 2 who is financially able, in whole or in material part, to pull his own oar.” Temple v. 3 Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). Courts tend to reject IFP motions 4 where the applicant can pay the filing fee with acceptable sacrifice to other 5 expenses. See, e.g., Allen v. Kelly, 1995 WL 396860 at *3–4 (N.D. Cal. 1995) 6 (granting plaintiff IFP status but later requiring plaintiff to pay $120 filing fee out of 7 $900 settlement proceeds); Ali v. Cuyler, 547 F. Supp. 129, 130 (E.D. Pa. 1982) 8 (denying IFP application where “plaintiff possessed savings of $450 and the 9 magistrate correctly determined that this amount was more than sufficient to allow 10 the plaintiff to pay the filing fee in this action”). 11 Having read and considered the papers submitted, the Court finds that Matus 12 meets the requirements for IFP status under 28 U.S.C. § 1915. Her IFP motion is 13 in the form of a standard questionnaire, which indicates that she is recently 14 separated and unemployed. (Dkt. 2 at 5). Matus has no assets other than her car, 15 which she values at $6,000, and has no direct source of income, other than a gift 16 of $400. (Id. at 1–3). In contrast, she claims that her monthly expenses total over 17 $7,000. (Id. at 3–4). However, there are some discrepancies between her listed 18 income and expenses owed. For instance, Matus claims that she resides with her 19 daughter who is paying for all expenses “on her house,” yet she estimates monthly 20 rent/mortgage at $1800 and utilities at $1000. (Id. at 4). Nevertheless, it is fairly 21 clear that Matus has only modest assets and no disposable income that she could 22 use to pay the filing fee. The Court therefore concludes that she is unable to pay 23 the filing fee and GRANTS Matus’s IFP motion. 24 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) 25 Any complaint filed by a person proceeding IFP is subject to sua sponte 26 dismissal by the Court to the extent it contains claims which are “frivolous, 27 malicious, fail to state a claim upon which relief may be granted, or seek monetary 28 relief from a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); 3 21cv1633 1 Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the 2 provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”); Lopez v. 3 Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only 4 permits, but requires a district court to dismiss an in forma pauperis complaint that 5 fails to state a claim.”). 6 First, Matus seeks to bring a claim pursuant to the FCTA, which waives 7 sovereign immunity for certain torts committed by federal employees. FDIC v. 8 Meyer, 510 U.S. 471, 475 (1994). The FTCA provides that district courts have 9 exclusive jurisdiction of civil actions against the United States for money damages 10 “for injury or loss of property, or personal injury or death caused by the negligent 11 or wrongful act or omission of any employee” of the federal government while 12 acting within the scope of his office or employment. 28 U.S.C. § 1346(b); Meyer, 13 510 U.S. at 475. However, Matus’s Complaint fails to allege, among other things 14 necessary to state a valid claim under the FTCA, that she exhausted her 15 administrative remedies under the FTC prior to filing suit. See McNeil v. United 16 States, 508 U.S. 106, 113 (1993) (“The FTCA bars claimants from bringing suit in 17 federal court until they have exhausted their administrative remedies.”); Gillespie 18 v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980) (“The timely filing of an administrative 19 claim is a jurisdictional prerequisite to the bringing of a suit under the FTCA, and, 20 as such, should be affirmatively alleged in the complaint.”). Based on this 21 fundamental jurisdictional defect, Matus’s FTCA claims must be dismissed for 22 failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2). See Lopez v. Smith, 23 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). 24 Second, to the extent Matus seeks to hold CBP liable for alleged civil rights 25 violations pursuant to Bivens, 403 U.S. at 388, her claims also fail. Bivens 26 established that “compensable injury to a constitutionally protected interest [by 27 federal officials alleged to have acted under color of federal law] could be 28 vindicated by a suit for damages invoking the general federal question jurisdiction 4 21cv1633 1 of the federal courts [pursuant to 28 U.S.C. § 1331].” Butz v. Economou, 438 U.S. 2 478, 486 (1978). Bivens provides that “federal courts have the inherent authority 3 to award damages against federal officials to compensate plaintiffs for violations 4 of their constitutional rights.” Western Center for Journalism v. Cederquist, 235 5 F.3d 1153, 1156 (9th Cir. 2000). However, a Bivens action may only be brought 6 against the responsible federal official in his or her individual capacity. Daly- 7 Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1988). Accordingly, Bivens does 8 not authorize a suit against the government or its agencies for monetary relief. 9 FDIC v. Meyer, 510 U.S. 471, 486 (1994); Thomas-Lazear v. FBI, 851 F.2d 1202, 10 1207 (9th Cir. 1988); Daly- Murphy, 837 F.2d at 355. Accordingly, to the extent 11 that Matus is seeking to sue CBP for alleged constitutional violations, she may not 12 do so in this Bivens action. 13 Finally, Matus also appears to allude to negligence claims in her Complaint. 14 (Dkt. 1 at 3). However, because the Court has dismissed all federal claims over 15 which it has original jurisdiction, it has discretion to decline to exercise 16 supplemental jurisdiction over any remaining state law claims. 28 U.S.C. 17 § 1367(c); Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (“[I]n 18 the usual case in which all federal-law claims are eliminated before trial, the 19 balance of factors to be considered under the pendent jurisdiction doctrine . . . will 20 point toward declining to exercise jurisdiction over the remaining state-law 21 claims.”). The Court exercises that discretion here and dismisses Matus’s state law 22 negligence claim for lack of jurisdiction. 23 III. CONCLUSION AND ORDER 24 Good cause appearing, IT IS HEREBY ORDERED that: 25 1. Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. §1915(a) (Dkt. 2) 26 is GRANTED. However, if Plaintiff ultimately succeeds in this case, whether at trial 27 or through a settlement, Plaintiff shall be required to pay the costs of this litigation. 28 2. Plaintiff’s Complaint (Dkt. 1) is DISMISSED without prejudice for failing to 5 21cv1633 1 state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(b). However, Plaintiff is 2 GRANTED forty-five (45) days leave from the date of this Order in which to file an 3 Amended Complaint which cures the deficiencies of pleading identified by this 4 Order. Plaintiff’s Amended Complaint must be complete in itself without reference 5 to her original pleading. See CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner 6 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 7 supersedes the original.”); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) 8 (citation omitted) (“All causes of action alleged in an original complaint which are 9 not alleged in an amended complaint are waived.”). 10 IT IS SO ORDERED. 11 12 Dated: November 30, 2021 13 14 15 Honorable Larry Alan Burns United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 6 21cv1633
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