Encinas-Solano v. United States Border Patrol

Opinion

1 WO MH 2 3 4 5 8 9 Maria Isela Encinas-Solano, No. CV-23-00227-TUC-SHR 10 Plaintiff, 11 v. ORDER 12 United States Border Patrol, et al., 13 Defendants.

15 On May 15, 2023, Plaintiff Maria Isela Encinas-Solano filed a pro se civil rights 16 Complaint,1 and an Application to Proceed In District Court Without Prepaying Fees or 17 Costs. In a February 9, 2024 Order, the Court granted the Application to Proceed and 18 dismissed the Complaint because Plaintiff had failed to state a claim. The Court gave 19 Plaintiff 30 days to file an amended complaint and to thereby cure the deficiencies 20 identified in the Order. On February 29, 2024, Plaintiff filed a First Amended Complaint 21 (Doc. 9). On March 5, 2024, she filed a Notice of Appeal. On April 29, 2024, the Ninth 22 Circuit Court of Appeals dismissed Plaintiff’s appeal for lack of jurisdiction. Encinas- 23 Solano v. U.S. Customs and Border Prot., No. 24-1642 (9th Cir.), Doc. 3. The Court of 24 Appeals issued its Mandate on June 21, 2024. (Doc. 13.) 25 . . . . 26

27 1 Although Plaintiff did not identify a federal jurisdictional basis for this case, she 28 is seeking damages from federal officers who purportedly violated her constitutional rights. Accordingly, the Court construed this action as having been filed pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 1 I. Statutory Screening of Prisoner Complaints 2 Pursuant to 28 U.S.C. § 1915(e)(2), in a case in which a plaintiff has been granted 3 in forma pauperis status, the Court shall dismiss the case “if the court determines that . . . 4 (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may 5 be granted; or (iii) seeks monetary relief against a defendant who is immune from such 6 relief.” 7 A pleading must contain a “short and plain statement of the claim showing that the 8 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 9 not demand detailed factual allegations, “it demands more than an unadorned, the- 10 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 11 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 12 conclusory statements, do not suffice.” Id. 13 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 14 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 15 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 16 that allows the court to draw the reasonable inference that the defendant is liable for the 17 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 18 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 19 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 20 allegations may be consistent with a constitutional claim, a court must assess whether there 21 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 22 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 23 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 24 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 25 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 26 U.S. 89, 94 (2007) (per curiam)). 27 . . . . 28 . . . . 1 If the Court determines a pleading could be cured by the allegation of other facts, a 2 pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the 3 action. See Lopez v. Smith, 203 F.3d 1122, 1127–29 (9th Cir. 2000) (en banc). 4 II. Background 5 Following her arrest in this District on November 23, 2013, Plaintiff pleaded guilty 6 in United States v. Encinas-Solano, CR-14-00839-RB (D.N.M.), to a violation of 21 U.S.C. 7 § 846 (“Unlawfully Knowingly, and Intentionally Combine, Conspire, and Confederate 8 and Agree With One Another (and with Other Persons) To Possess with Intent to Distribute 9 Marijuana”). The United States District Court for the District of New Mexico entered 10 Judgment in that case on July 17, 2014, but the Court’s disposition is not evident from the 11 available record. Id. 12 Following her apparent conviction in CR-14-00839-RB, Plaintiff was charged twice 13 in this District with Illegal Reentry, in violation of 8 U.S.C. § 1326(a), (b)(2). Plaintiff was 14 charged once in 2018, see United States v. Encinas-Solano, CR-18-00996-TUC-CKJ 15 (LAB), and again in 2023 after she was apprehended near Portal, Arizona, see United States 16 v. Encinas-Solano, MJ-23-05813-TUC-MSA, Doc. 1. Both charges were dismissed on the 17 Government’s motion. Encinas-Solano, CR-18-00996-TUC-CKJ (LAB), Doc. 53; 18 Encinas-Solano, MJ-23-05813-TUC-MSA, Doc. 10. 19 III. First Amended Complaint 20 In her First Amended Complaint, Plaintiff appears to assert claims for false arrest, 21 threat to safety, excessive force, and a violation of her equal protection and Miranda rights. 22 Plaintiff has named as Defendants the United States Border Patrol (USBP) and USBP 23 Agents Arturo Acosta and Manny Robles. She has also sued an unspecified number of 24 unnamed USBP Agents.2 Plaintiff is seeking $25 million in damages. 25 Plaintiff alleges the following facts in support of her claims: 26 After Plaintiff provided valuable information concerning a Mexican cartel to 27 Defendants Acosta and Robles, these agents lied to her and used the information she had

28 2 These Agents are listed in the caption as “Who[]ever Was Involved.” 1 provided to “put [her] in custody.” (Doc. 9 at 3.)3 In 2014, Plaintiff was charged in New 2 Mexico on the basis of information she had provided to Acosta and Robles. These charges 3 were dismissed after Plaintiff “told the Judg[e] the truth.” (Id.) USBP Agents later 4 “pick[ed] [her] up and g[a]ve [her] a week to provide information” or be deported to 5 Mexico. (Id.) 6 At some point, USBP Agents revealed Plaintiff was an informant to cartel members. 7 As a result of this disclosure, Plaintiff was kidnapped, tortured, and raped. Following her 8 kidnapping, Plaintiff was threatened “all the time,” and could not safely remain in Mexico. 9 (Id.) When “they” no longer needed Plaintiff, they arrested her for illegal reentry even 10 though she had never been deported. (Id.) While she was detained, Immigration and 11 Customs Enforcement (ICE) agents visited Plaintiff and told her she would face a 20-year 12 prison sentence if she did not “sign [her] deportation.” (Id.) The ICE agents told Plaintiff 13 they had been sent by Defendant Acosta. 14 In 2018, Plaintiff was arrested by “Arturo Acosta[,] Manny Robles, [illegible] 15 the[ir] co-workers on a false accusation[].” (Id. at 4.) In 2023, Acosta pulled Plaintiff over 16 and ordered her out of her vehicle. Plaintiff asked Acosta what was happening, and he 17 replied, “You[’re] going to immigration.” (Id.) When Plaintiff asked “Why?”, Acosta told 18 her to “[s]hut the fuck up and get in the patrol car.” (Id.) Plaintiff refused because her 19 brother, who was with her in the vehicle and who has mental problems, did not understand 20 what was happening. Plaintiff told Acosta she had legal status documents, but he told her 21 they were “expired.” (Id.) Plaintiff told Acosta she had “just got[ten] them,” but he refused 22 to look at her papers. (Id.) One of the USBP Agents asked some “illegal people” to “testify 23 against [Plaintiff]” by stating she had transported them but “no one wanted to say that so 24 [the agent] process[ed her] for illegal reentry.” (Id.) Plaintiff lost her truck and suffered 25 critical damage to ligaments on her neck when Acosta attempted to remove her neck brace. 26 (Id.) 27

28 3 The citation refers to the document and page number generated by the Court’s Case Management/Electronic Case Filing system. 1 While she was detained, Plaintiff “request[ed] [her] rights” and was told by a USBP 2 Agent, “Shut the fuck up[.] You don’t have any right[s].” (Id. at 5.) Plaintiff protested, 3 telling the Agent she had human rights, civil rights, and constitutional rights, to which he 4 replied, “You don’t have shit.” (Id.) The Agent then threatened Plaintiff, stating, “If you 5 [illegible] talk one more time I[’]m gonna put [illegible] and t[h]row you on groun[d] by 6 your[]self.” (Id.) He also pointed a gun at her. Plaintiff suffered a seizure because she 7 was “being pressure[d] by them” and had to be hospitalized. In addition, she lost her 8 vehicle. Plaintiff asserts she was never read her Miranda rights. 9 IV. Availability of a Bivens Remedy 10 Since the Supreme Court decided a plaintiff could seek damages for a violation of 11 the Fourth Amendment prohibition on illegal searches and seizures in Bivens, 403 U.S. at 12 396–97, it has only recognized Bivens claims in two other cases—Davis v. Passman, 442 13 U.S. 228 (1979), and Carlson v. Green, 446 U.S. 14 (1980). In Davis, the Court held a 14 cause of action existed under Bivens for an administrative assistant’s claim a Congressman 15 had discriminated against her because of her gender, in violation of the Fifth Amendment’s 16 Due Process Clause. Davis, 442 U.S. at 230–31. In Green, the Court recognized a Bivens 17 remedy in a case involving an Eighth Amendment claim against federal prison officials for 18 failing to treat decedent’s asthma. Green, 446 U.S. at 16–18. “These three cases . . . 19 represent the only instances in which the [Supreme] Court has approved of an implied 20 damages remedy under the Constitution itself.” Ziglar v. Abbasi, 582 U.S. 120, 131 (2017); 21 see also Egbert v. Boule, 596 U.S. 482, 483 (2022) (“Over the past 42 years, however, we 22 have declined 11 times to imply a similar cause of action for other alleged constitutional 23 violations.”). 24 Although the Supreme Court has not “dispense[d] with Bivens altogether,” it has 25 “emphasized that recognizing a cause of action under Bivens is ‘a disfavored judicial 26 activity.’” Egbert, 596 U.S. at 491 (quoting Ziglar, 582 U.S. at 135). In Ziglar, the 27 Supreme Court set forth a two-part test to determine whether a Bivens claim may proceed: 28 a court first must consider whether the claim at issue extends Bivens in a new context from 1 previously established Bivens cases; if so, the court must then apply a “special factors 2 analysis” to determine whether there are “special factors counselling hesitation” in 3 expanding Bivens. Ziglar, 582 U.S. at 136. These two steps “often resolve to a single 4 question: whether there is any reason to think that Congress might be better equipped to 5 create a damages remedy.” Egbert, 569 U.S. at 492. A court may not imply a Bivens 6 remedy if there is “any rational reason” to think Congress is better suited for the task. Id. 7 at 496. If an alternative remedial structure is available, for example, “that alone . . . is 8 reason enough” to refrain from recognizing a new Bivens cause of action. Id. at 493. A 9 Bivens claim will likewise be foreclosed if there is any uncertainty about the potential 10 “‘systemwide’ consequences” of implying a damages remedy in a particular context. Id. 11 at 496 (quoting Ziglar, 582 U.S. at 136). 12 This case features both of the foregoing factors. Here, as in Egbert, Defendants 13 were USBP agents “carrying out [that agency]’s mandate to ‘interdi[c]t persons attempting 14 to illegally enter or exit the United States or goods being illegally imported into or exported 15 from the United States.”4 Egbert, 596 U.S. at 494 (citing 6 U.S.C. § 211(e)(3)(A) 16 (alteration in original)). Such conduct is “intimately related to foreign policy and national 17 security,” and is therefore an improper subject for judicial intervention. Id. (quoting Haig 18 v. Agee, 453 U.S. 280, 292 (1981)); see also Hernandez v. Mesa, 589 U.S. 93, 108 (2020) 19 (holding the regulation of border patrol agents at the border “unquestionably has national 20 security implications”). In addition, the same alternative remedy held to foreclose a Bivens 21 cause of action in Egbert is available to Plaintiff here. Specifically, the USBP’s statutory 22 obligation to “control, direc[t], and supervis[e] . . . all employees,” 8 U.S.C. § 1103(a)(2), 23 and regulatory duty to investigate alleged violations of its enforcement standards and 24 accept grievances from any person wishing to lodge a complaint, 8 C.F.R. §§ 287.10(a)– 25 (b), provide adequate alternative avenues for relief. Egbert, 596 U.S. at 497. The presence

26 4 Although Plaintiff contends she did not unlawfully enter the United States, the 27 Court cannot conduct its special factors analysis “at such a narrow ‘leve[l] of generality.’” Egbert, at 496 (quoting United States v. Stanley, 483 U.S. 669, 681 (1987)). The proper 28 inquiry is whether a court is competent to authorize a damages action against not just the Defendants in this case, “but against Border Patrol agents generally.” Id. 1| of these factors militates against the implication of a damages remedy here. Accordingly, 2| the Court declines to recognize a Bivens cause of action, and the First Amended Complaint 3 | will be dismissed for failure to state a claim. Because amendment would be futile, the 4} Court, in its discretion, will dismiss the First Amended Complaint without leave to amend. 5| See, e.g., Oregon Clinic, PC v. Fireman’s Fund Ins. Co., 75 F.4th 1064, 1074 (9th Cir. 2023) (affirming dismissal without leave to amend where amendment would have been futile). 8 IT IS ORDERED: 9 (1) The First Amended Complaint (Doc. 9) is DISMISSED for failure to state a 10 | claim and the Clerk of Court must enter judgment accordingly. 11 (2) The docket shall reflect that the Court, pursuant to 28 U.S.C. § 1915(a)(3) 12 | and Federal Rules of Appellate Procedure 24(a)(3)(A), has considered whether an appeal 13 | of this decision would be taken in good faith and finds Plaintiff may appeal in forma 14 pauperis. 15 Dated this 11th day of July, 2024. 16 17 i /} Ait fel J vinited States District Judge 20 21 22 23 24 25 26 27 28