Gonzalez v. U.S. Customs and Border Protection

• Court: District Court, S.D. California
• Decided: March 8, 2022
• Docket: 3:21-cv-01558
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANDRES RODRIGUEZ GONZALEZ, Case No.: 21-CV-1558 TWR (DEB)

12 Plaintiff, ORDER DISMISSING WITHOUT 13 v. PREJUDICE SECOND AMENDED COMPLAINT PURSUANT TO 14 U.S. CUSTOMS AND BORDER 28 U.S.C. § 1915(e)(2)(B)(ii) PROTECTION, 15 Defendant. (ECF No. 10) 16

17 Presently before the Court is Plaintiff Andres Rodriguez Gonzalez’s Second 18 Amended Complaint (“SAC,” ECF No. 10), which was filed in six “parts” in response to 19 the Court’s October 21, 2021 Order (1) Granting Motion to Proceed in Forma Pauperis, 20 (2) Dismissing Without Prejudice First Amended Complaint Pursuant to 28 U.S.C. 21 § 1915(e)(2)(B)(ii), and (3) Denying Without Prejudice Motion for Appointment of 22 Counsel. (See generally ECF No. 9 (the “Oct. 21 Order”).) As with Plaintiff’s First 23 Amended Complaint, because Plaintiff is proceeding in forma pauperis (“IFP”), the 24 Court is obligated to screen his operative Second Amended Complaint sua sponte 25 pursuant to 28 U.S.C. § 1915(e)(2). Because Plaintiff’s Second Amended Complaint is 26 not complete in itself, the Court granted Plaintiff leave to file a complete third amended 27 complaint on or before February 4, 2022. (See generally ECF No. 11.) That deadline has 28 passed. The Court therefore screens Plaintiff’s Second Amended Complaint as filed. 1 BACKGROUND 2 Plaintiff initiated this action on September 3, 2021, by filing his original Complaint 3 again U.S. Customs and Border Protection (“CBP”) seeking return of his seized vehicle 4 and expungement of his arrest, (see generally ECF No. 1 (“Compl.”)), together with 5 motions to proceed IFP, (see generally ECF No. 2), and for appointment of counsel. (See 6 generally ECF No. 3.) The Court denied without prejudice Plaintiff’s request to proceed 7 IFP because Plaintiff had failed to sign his affidavit under penalty of perjury in 8 accordance with 28 U.S.C. § 1915(a)(1) and Southern District of California Civil Local 9 Rule 3.2(a), (see ECF No. 4 at 1–2), and denied without prejudice Plaintiff’s request for 10 appointment of counsel because the Court was unable to make a determination as to 11 Plaintiff’s indigency or likelihood of success on the merits. (See id. at 2–3.) 12 On September 21, 2021, Plaintiff filed his First Amended Complaint, (see 13 generally ECF No. 5 (“FAC”)), as well as renewed motions to proceed IFP and for 14 appointment of counsel. (See generally ECF Nos. 6, 8, respectively.) The Court granted 15 Plaintiff’s request to proceed IFP, (see Oct. 21 Order at 1–2), but dismissed without 16 prejudice Plaintiff’s First Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) 17 for failure to state a claim, (see id. at 2–6), and, consequently, denied without prejudice 18 Plaintiff’s motion for appointment of counsel. (See id. at 6–7.) In dismissing Plaintiff 19 First Amended Complaint, the Court construed the pleading as alleging two causes of 20 action for (1) return of his vehicle under the civil forfeiture statute, and (2) expungement 21 of his arrest record with CBP. (See id. at 5.) As for the first cause of action, because 22 Plaintiff alleged that he had filed a “petition” but did not allege that he had not received a 23 notice of forfeiture, the Court concluded that Plaintiff had waived judicial review. (See 24 id. at 5–6.) Regarding the expungement claim, it was unclear whether (1) the Court had 25 authority to grant the requested relief, (2) Plaintiff had standing, or (3) criminal charges 26 were pending against Plaintiff. (See id. at 6.) 27 Plaintiff filed his operative Second Amended Complaint on November 15, 2021. 28 (See generally SAC.) The Second Amended Complaint is also against CBP but departs 1 significantly from Plaintiff’s original and First Amended Complaints. (Compare SAC, 2 with Compl.; and FAC.) Plaintiff now alleges that he “was unlawfully detained for a 3 crime that [he] did not commit,” “was a victim of racial discrimination,” and “should 4 have automatic acquisition of citizenship.” (See SAC at 49.1) The Second Amended 5 Complaint also contains several unidentified exhibits, including some relating to the 6 seizure of Plaintiff’s vehicle. (See, e.g., id. at 67–80, 86–92, 151–69.) It also appears 7 that Plaintiff attempted to sue CBP in small claims court but was unable successfully to 8 effect service. (See id. at 82–83.) 9 Because the Second Amended Complaint contained minimal factual allegations 10 and instead consisted almost entirely of documents and exhibits, the Court permitted 11 Plaintiff the opportunity to file a Third Amended Complaint on or before February 4, 12 2022, that would not require the Court to “piecemeal documents together to determine 13 whether Plaintiff states a colorable claim in his complaint.” (See ECF No. 11 (the 14 “Dec. 6 Order”) at 2–3 (quoting Festa v. NDOC, No. 2:17-CV-00850-APG-NJK, 2018 15 WL 3715708, at *1 (D. Nev. Aug. 3, 2018)).) As of the date of this Order, the Court has 16 not received a further amended pleading from Plaintiff. (See generally Docket.) 17 LEGAL STANDARD 18 As explained in the Court’s October 21 Order, the Court must screen every civil 19 action brought pursuant to 28 U.S.C. § 1915(a) and dismiss any case it finds “frivolous or 20 malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary 21 relief against a defendant who is immune from relief.” 28 U.S.C. § 1915(e)(2)(B); see 22 also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. 23 § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126–27 24 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires 25 a district court to dismiss an in forma pauperis complaint that fails to state a claim”). As 26 amended by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(e)(2) 27 28 1 To avoid ambiguity, pin citations to the Second Amended Complaint are to the “PageID” provided by 1 mandates that the court reviewing an action filed pursuant to the IFP provisions of section 2 1915 make and rule on its own motion to dismiss before directing the Marshal to effect 3 service pursuant to Federal Rule of Civil Procedure 4(c)(3). See Fed. R. Civ. P. 4(c)(3); 4 Navarette v. Pioneer Med. Ctr., No. 12-cv-0629-WQH (DHB), 2013 WL 139925, at *1 5 (S.D. Cal. Jan. 9, 2013). 6 All complaints must contain a “short and plain statement of the claim showing that 7 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 8 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 9 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 10 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). “[D]etermining whether a 11 complaint states a plausible claim is context-specific, requiring the reviewing court to 12 draw on its experience and common sense.” Iqbal, 556 U.S. at 663–64 (citing Twombly, 13 550 U.S. at 556). 14 “When there are well-pleaded factual allegations, a court should assume their 15 veracity, and then determine whether they plausibly give rise to an entitlement of relief.” 16 Iqbal, 556 U.S. at 679. “[W]hen determining whether a complaint states a claim, a court 17 must accept as true all allegations of material fact and must construe those facts in the 18 light most favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 19 2000); see also Andrews v. King, 393 F.3d 1113, 1121 (9th Cir. 2005); Barren v. 20 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“The language of § 1915(e)(2)(B)(ii) 21 parallels the language of Federal Rule of Civil Procedure 12(b)(6).”). 22 “While factual allegations are accepted as true, legal conclusions are not.” 23 Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June 24 28, 2012) (citing Iqbal, 556 U.S. at 678). Courts cannot accept legal conclusions set forth 25 in a complaint if the plaintiff has not supported her contentions with facts. Id. (citing 26 Iqbal, 556 U.S. at 679). 27 Courts have a duty to construe a pro se litigant’s pleadings liberally. See Karim- 28 Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). In giving liberal 1 interpretation to a pro se complaint, however, a court may not “supply essential elements 2 of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 3 F.2d 266, 268 (9th Cir. 1982). The district court should grant leave to amend if it appears 4 “at all possible that the plaintiff can correct the defect,” unless the court determines that 5 “the pleading could not possibly be cured by the allegation of other facts.” Lopez v. 6 Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc) (citing Doe v. United States, 58 7 F.3d 494, 497 (9th Cir. 1995); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 701 (9th 8 Cir. 1990)). 9 ANALYSIS 10 As explained in the Court’s December 6 Order, Plaintiff’s Second Amended 11 Complaint is not complete in itself and, consequently, fails to abide by the requirements 12 of Rule 8(a). (See Dec. 6 Order at 2.) While this alone merits dismissal of Plaintiff’s 13 Second Amended Complaint, the Court will screen those claims the Court can identify to 14 aid Plaintiff in refining them should Plaintiff elect to file a further amended complaint. 15 Although difficult to decipher, the operative Second Amended Complaint appears 16 focused on Plaintiff’s allegedly unlawful detention, right to United States citizenship, and 17 racial discrimination. (See generally SAC at 49–50, 55, 81, 147, 150, 155.) While 18 Plaintiff’s prior complaints largely sought the return of his vehicle from CBP, (see 19 generally Compl., FAC), there are no allegations or requests seeking return of Plaintiff’s 20 vehicle in the Second Amended Complaint. (See generally SAC.) Nonetheless, Plaintiff 21 does include several exhibits evidencing his dispute over the vehicle with the CBP, (see, 22 e.g., id. at 67–92, 151–69), some of which are illegible. (See, e.g., id. at 67–68.) The 23 Court therefore addresses each of these four “claims” in turn. 24 Beginning with the claim for unlawful detention, Plaintiff alleges: 25 On August 21, [2020,] about 2 P.M. I was coming to the Port of Entry, I was stopped by 4 C.B.P. officers, I was pulled out of my car and my 26 car keys t[aken] away with[]out telling me the re[a]son or motive. 27 / / / 28 / / / 1 I was imm[e]diat[e]ly t[aken] . . . to the main office with []a chain on my leg; in abo[u]t one hour my finger prints and photo w[ere] taken[.] 2 “No[]body told me what was going” on[.] The main thing is not knowing if 3 I was under arrest[,] the cause[,] the re[a]son[,] and the motive.

4 It was a night[]mare not knowing what was going on, my finger prints 5 and photo w[]ere taken twice.

6 [At] about . . . 11 PM a[n] in[ve]stigator came and took my 7 fingerprints and photo one more time[.] The in[ve]stigator told me to just w[]ait [for] the Sher[iff]. 8

9 (See SAC at 81 (emphasis in original); see also id. at 155 (duplicate).) Plaintiff concedes 10 that drugs were found in his vehicle. (See, e.g., id. at 67–69, 151.) 11 Plaintiff’s unlawful detention claim cannot proceed as currently pled. Critically, it 12 is unclear from these allegations what Plaintiff contends was unlawful about his 13 detention. For example, Plaintiff does not allege that he was detained without reasonable 14 suspicion, see, e.g., Florida v. Royer, 460 U.S. 491, 500 (1983), or in violation of his due 15 process rights. See, e.g., Cty. of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). 16 Further, as the Court explained in its October 21 Order, (see Oct. 21 Order at 6), it is 17 unclear whether Plaintiff is facing prosecution for the drugs founds in his vehicle or 18 whether the charges have been dropped. Consequently, even if Plaintiff could state a 19 viable claim for relief, the Court would be obligated “to stay the civil action until the 20 criminal case or the likelihood of a criminal case is ended.” Wallace v. Kato, 549 U.S. 21 384, 394 (2007) (first citing Heck v. Humphrey, 512 U.S. 477, 487–88, n.8 (1994); then 22 citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 730 (1996)); see also Combs v. 23 Ribac, No. 317CV02381WQHBGS, 2018 WL 1185266, at *4 (S.D. Cal. Mar. 7, 2018). 24 Plaintiff therefore must plead facts indicating in what way his detention was unlawful and 25 proving that he was not convicted of the drug charges for which he was detained. 26 The same is true to the extent that Plaintiff seeks United States citizenship through 27 his Second Amended Complaint. First, it is unclear what actions—if any—Plaintiff has 28 taken to assert or obtain citizenship or naturalization. (See generally SAC.) For 1 example, it is unclear whether Plaintiff has applied to the Attorney General for a 2 certificate of citizenship, see, e.g., 8 U.S.C. § 1452(a), or whether a department or 3 independent agency has made a final administrative denial of a right or privilege Plaintiff 4 asserted as a national of the United States. See, e.g., 8 U.S.C. § 1503(a). Consequently, 5 the Court is unable to determine whether Plaintiff properly asserts his claim before this 6 Court or against CBP. Further, Plaintiff appears to claim citizenship based on his 7 stepfather’s United States citizenship, (see, e.g., SAC at 49–50, 55), but the Ninth Circuit 8 has found that this relationship does not suffice to confer citizenship because “there is no 9 blood relation” between stepfather and stepchild. See, e.g., Martinez-Madera v. Holder, 10 559 F.3d 937, 942 (9th Cir. 2009). 11 As for Plaintiff’s claim based on racial discrimination, to the extent Plaintiff 12 alleges that CBP’s decision to detain him was racially motivated, (cf. SAC at 151 13 (alleging discrimination related to the “constitutional right to vote”)), “[t]o make a claim 14 for racial profiling in violation of the Equal Protection Clause, ‘a plaintiff must show that 15 the defendants acted with an intent or purpose to discriminate against the plaintiff based 16 on membership in a protected class.’” See Daniel v. Tassone, No. 2:18-CV-03018- 17 JAMACPS, 2018 WL 6168566, at *2 (E.D. Cal. Nov. 26, 2018) (quoting Thornton v. 18 City of St. Helens, 425 F.3d 1158, 1166–67 (9th Cir. 2005)). Here, there are no 19 allegations that CBP discriminated against Plaintiff based on race, much less that CBP 20 did so with the requisite intent. (See SAC at 49, 150.) “Without additional facts, 21 plaintiff’s complaint does not support an inference of racial motivation.” See Daniel, 22 2018 WL 6168566, at *2. 23 Finally, to the extent Plaintiff continues to seek the return of his vehicle from CBP 24 in the Second Amended Complaint, the exhibits Plaintiff has filed confirm that Plaintiff 25 received the requisite notice of the forfeiture and elected to proceed administratively 26 pursuant to 19 U.S.C. § 1618 and 19 C.F.R. §§ 171.1, 171.2. (See, e.g., SAC at 73–80, 27 86–89, 91, 156–69; see also ECF No. 9 at 5–6.) The Notice informed Plaintiff that, “[b]y 28 completing Box 1 on the “Election of Proceedings” form you are requesting 1 administrative processing of your case by CBP” but that “[a]t any point prior to the 2 forfeiture of the property, you may request a referral to the U.S. Attorney by filing a 3 claim and cost bond” as outlined elsewhere in the Notice. (See, e.g., id. at 160.) On the 4 Election of Proceedings, Plaintiff “REQUEST[ED] THAT CBP CONSIDER [HIS] 5 PETITION ADMINISTRATIVELY BEFORE FORFEITURE PROCEEDINGS 6 ARE INITIATED,” meaning he “g[ave] up [his] right to . . . have the case immediately 7 referred to the U.S. Attorney for court action,” although “at any time [Plaintiff] c[ould] 8 file a claim and bond with CBP and CBP’s consideration of [his] petition w[ould] stop 9 and the case w[ould] be sent to the U.S. Attorney’s Office for court action.” (See, e.g., 10 id. at 159 (emphasis in original).) There is no allegation that Plaintiff filed a claim and 11 bond pursuant to 19 U.S.C. § 1608. Accordingly, the Court lacks jurisdiction over 12 Plaintiff’s claim for return of his vehicle. See, e.g., United States v. Jones, 852 F.2d 13 1235, 1237 (9th Cir. 1988). 14 For all these reasons, the Court DISMISSES WITHOUT PREJUDICE 15 Plaintiff’s Second Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for 16 failure to state a claim. 17 CONCLUSION 18 In light of the foregoing, the Court DISMISSES WITHOUT PREJUDICE 19 Plaintiff’s Second Amended Complaint (ECF No. 10) pursuant to 28 U.S.C. 20 § 1915(e)(2)(B)(ii). Although Plaintiff elected not to file a Third Amended Complaint as 21 requested by the Court, the Court will permit Plaintiff one final opportunity to file an 22 amended complaint curing the pleading deficiencies outlined in this Order and the 23 Court’s October 21, and December 6, 2021 Orders. (See ECF Nos. 9, 11.) Accordingly, 24 Plaintiff MAY FILE an amended complaint within thirty (30) days from the date of this 25 Order. The Court reminds Plaintiff that his amended complaint “must be complete in 26 itself without reference to the superseded pleading,” see S.D. Cal. CivLR 15.1(a), and 27 any claims or defendants not repled will be considered waived. See Lacey v. Maricopa 28 / / / 1 || Cty., 693 F.3d 896, 928 (9th Cir. 2012). Should Plaintiff fail timely to file an amended 2 || complaint, this action will be dismissed without prejudice. 3 IT IS SO ORDERED. 4 ||Dated: March 8, 2022 5 | OD (2 re Honorable Todd W. Robinson 6 United States District Court 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28