Navarrette v. Department of Homeland Security

Opinion

1 2 3 4 5 6 7 10 11 TOMMY NAVARRETTE aka Case No.: 22cv006-LL-RBM Mr. T. Navarrette El, 12 ORDER: (1) GRANTING MOTION Plaintiff, vs. PAUPERIS; (2) DENYING MOTION 14 TO APPOINT COUNSEL; AND DEP’T OF HOMELAND SECURITY; 15 (3) DISMISSING CLAIMS FOR JANE DOE 1; JANE DOE 2; FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. PROTECTION; METROPOLITAN 17 § 1915(e)(2)(B) CORRECTIONAL CENTER,

18 Defendants. [ECF Nos. 3, 5] 19 20 21 22 Tommy Navarrette (“Plaintiff”), formerly housed at the Santa Rita Jail, and 23 proceeding pro se, filed this civil action using a form complaint pursuant to the Civil Rights 24 Act, 42 U.S.C. § 1983 on January 4, 2022. (See Compl., ECF No. 1.) In addition, Plaintiff 25 filed a Motion to Appoint Counsel. (ECF No. 3.) 26 I. Procedural History 27 Plaintiff did not prepay the civil filing fee at the time he submitted his Complaint, 28 instead he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 1 § 1915(a). However, because he was incarcerated at the time he filed this action, he was 2 required to submit a certified copy of his Inmate Statement Report for the 6-month period 3 immediately preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2). 4 Therefore, on January 25, 2022, the Court denied Plaintiff’s IFP motion and 5 dismissed the case pursuant to 28 U.S.C. § 1914(a), but granted Plaintiff leave to file a 6 renewed IFP motion. (See ECF No. 4.) On February 11, 2022, Plaintiff filed a renewed 7 Motion to Proceed IFP. (ECF No. 5.) 8 II. Motions to Proceed IFP 9 As the Court noted in its January 25, 2022 Order, all parties instituting any civil 10 action, suit or proceeding in a district court of the United States, except an application for 11 writ of habeas corpus, must pay a filing fee of $402. See 28 U.S.C. § 1914(a). An action 12 may proceed despite a plaintiff’s failure to prepay the entire fee only if he is granted leave 13 to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 14 1177 (9th Cir. 1999). Section 1915(a)(2) requires all persons seeking to proceed without 15 full prepayment of fees to file an affidavit that includes a statement of all assets possessed 16 and demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 17 Cir. 2015). 18 Along with his Motion to Proceed IFP, Plaintiff notified the Court that he had been 19 “recently released from Santa Rita Jail in Dublin, California” and is currently enrolled in a 20 drug rehabilitation program. (ECF No. 5-1.) However, it is unclear whether he is “accused 21 of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or 22 the terms or conditions of parole, probation, pretrial release, or diversionary program” and 23 thus, whether he could still be considered a “prisoner” for IFP purposes. See 28 U.S.C. 24 § 1915(h); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). Because his status is 25 uncertain, the Court will presume Plaintiff is not subject to those provisions of § 1915 that 26 apply only to prisoners, and review his IFP application just as it would those filed by any 27 other person. See e.g., Agyeman v. I.N.S., 296 F.3d 871, 886 (9th Cir. 2002) (“[T]he 28 statutory term ‘prisoner’ is limited to an individual who is ‘currently detained as a result of 1 accusation, conviction, or sentence for a criminal offense.’”) (citing Page v. Torrey, 201 2 F.3d 1136, 1139-40 (9th Cir. 2000) (emphasis original). 3 Based on the affidavit Plaintiff has now provided, the Court finds he is unable to pay 4 the fees or post securities required to maintain this action, and GRANTS his Motion to 5 Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 5). 6 III. Motion to Appoint Counsel 7 Plaintiff seeks counsel on the grounds that this is an “extremely important civil rights 8 case,” his indigency, and his lack of “access to resources to litigate.” (ECF No. 3.) All 9 documents filed pro se are liberally construed, and “a pro se complaint, however inartfully 10 pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” 11 Erickson v. Pardus, 551 U.S. 89, 94 (2007), quoting Estelle v. Gamble, 429 U.S. 97, 106 12 (1976). There is no constitutional right to counsel in a civil case, and the decision to 13 appoint counsel under 28 U.S.C. § 1915(e)(1) is within “the sound discretion of the trial 14 court and is granted only in exception circumstances.” Agyeman v. Corr. Corp. of America, 15 390 F.3d 1101, 1103 (9th Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 16 1991) (noting that only “exceptional circumstances” support such a discretionary 17 appointment). Such exceptional circumstances exist where there is cumulative showing of 18 both a likelihood of success on the merits and an inability of the pro se litigant to articulate 19 his claims in light of their legal complexity. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 20 2009). 21 Plaintiff’s Complaint demonstrates that while not formally trained in law, he is fully 22 capable of legibly articulating the facts and circumstances relevant to his claims, which are 23 not exceptionally legally complex. Agyeman, 390 F.3d at 1103. Accordingly, the Court 24 DENIES Plaintiff’s motion for appointment of counsel without prejudice. 25 IV. Sua Sponte Screening pursuant to 28 U.S.C. § 1915(e)(2) 26 A. Standard of Review 27 Because he is proceeding IFP, Plaintiff’s Complaint is subject to sua sponte review, 28 and mandatory dismissal, if it is “frivolous, malicious, fail[s] to state a claim upon which 1 relief may be granted, or seek[s] monetary relief from a defendant immune from such 2 relief.” See 28 U.S.C. § 1915(e)(2)(B); Coleman v. Tollefson, 135 S. Ct. 1759, 1763 (2015) 3 (pursuant to 28 U.S.C. § 1915(e)(2) “the court shall dismiss the case at any time if the court 4 determines that—(A) the allegation of poverty is untrue; or (B) the action or appeal—(i) is 5 frivolous or malicious; [or] (ii) fails to state a claim on which relief may be granted.”); 6 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only 7 permits, but requires a district court to dismiss an in forma pauperis complaint that fails to 8 state a claim.”); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding 9 that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). 10 The purpose of § 1915’s screening provisions are “‘to ensure that the targets of 11 frivolous or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 12 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 13 689 F.3d 680, 681 (7th Cir. 2012)). 14 B. Plaintiff’s Allegations 15 On January 10, 2020, Plaintiff traveled from Los Angeles to Tijuana, Mexico to “get 16 some dental work done.” Compl. at 9. Plaintiff had a “medical prescription for medical 17 marijuana.” Id. He also possessed some “organic African soap” which was a soap “sold 18 in blocks and wrapped in plastic.” Id. As Plaintiff attempted to cross the border into 19 Mexico, driving a “black 2014 Toyota Prius,” he was sent to “secondary search.” Id. at 10. 20 “Agents” at the secondary search informed Plaintiff that they had “located the medical 21 marijuana” which he “forgot to claim.” Id. 22 Plaintiff was “detained for over 6 hours” where DHS Agents Jane Doe 1 and Jane 23 Doe 2 “took [him] into an isolated room and began to interrogate him.” Id. He was asked 24 about a “foreign substance located in the trunk” of his car. Id. at 10-11. Plaintiff claims 25 he was “unsure” what “substance” they were referring to and “denied its existence.” Id. at 26 11. Plaintiff was “consequently abruptly arrested and transferred” to Metropolitan 27 Correctional Center (“MCC”) where he was “booked and arrested” for possession of 28 ecstasy and attempting to transport it over the border. Id. 1 Plaintiff claims he “had no illegal drugs” in his car nor was he “in the business of 2 transporting drugs over the border.” Id. Later Plaintiff discovered that the “item in 3 question was ‘BOAS, black organic African soap’.” Id. Plaintiff alleges that they falsely 4 claimed that the soap had “trace amounts” of ecstasy. Id. at 12. He further alleges that the 5 “test on the soap was falsified in an effort to detain Plaintiff and the booking into [MCC] 6 was on false pretenses equaling false imprisonment.” Id. 7 When Plaintiff later met with his public defender attorney he claims that his attorney 8 attempted to “coerce Plaintiff into fast tracking the case and accepting a plea deal for 9 possession of soap.” Id. at 12-13. Plaintiff’s car was also “seized at the Border as a result 10 of this false arrest and unlawful detainment,” along with an iPhone and his passport. Id. at 11 13. Plaintiff was released on February 5, 2020 due to “expedited testing of the item in 12 question that determined the item was soap.” Id. at 14. 13 Plaintiff seeks declaratory relief, along with compensatory and punitive damages. 14 See id. at 33-34. 15 C. Discussion 16 The Complaint indicates this action is brought under 42 U.S.C. § 1983. (See ECF 17 No. 1 at 1.) Title 42 U.S.C. § 1983 “creates a private right of action against individuals 18 who, acting under color of state law, violate federal constitutional or statutory rights.” 19 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “Section 1983, however, 20 provides no right of action against federal (rather than state) officials.” Russell v. United 21 States Dept. of the Army, 191 F.3d 1016, 1019 (9th Cir. 1999). To the extent Plaintiff has 22 named federal rather than state actors as Defendants, his Complaint is properly construed 23 pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 24 U.S. 388 (1971). See Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) (“Actions 25 under § 1983 and those under Bivens are identical save for the replacement of a state actor 26 under § 1983 by a federal actor under Bivens.”) 27 “In Bivens, the Supreme Court ‘recognized for the first time an implied right of 28 action for damages against federal officers alleged to have violated a citizen’s 1 constitutional rights.’” Vega v. United States, 881 F.3d 1146, 1152 (9th Cir. 2018) (quoting 2 Hernandez v. Mesa, __U.S. __, 137 S. Ct. 2003, 2006 (2017) (citation omitted)). “In the 3 limited settings where Bivens does apply, the implied cause of action is the ‘federal analog 4 to suits brought against state officials under Rev. Stat. § 1979, 42 U.S.C. § 1983.’” Iqbal, 5 556 U.S. at 675-76 (quoting Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006)). Thus, to 6 state a Bivens claim for damages, the plaintiff must allege facts showing that: (1) a right 7 secured by the Constitution or laws of the United States was violated, and (2) the alleged 8 deprivation was committed by a federal actor. Van Strum v. Lawn, 940 F.2d 406, 409 (9th 9 Cir. 1991). 10 To the extent Plaintiff seeks to hold the Department of Homeland Security (“DHS”), 11 U.S. Customs and Border Protection (“CBP”), and Metropolitan Correctional Center 12 (“MCC”) liable for damages incurred but committed by unidentified individual officers, 13 he fails to state a plausible claim for relief. See Iqbal, 556 U.S. at 679. A Bivens action may 14 only be brought against a federal official in his or her individual capacity. See Daly-Murphy 15 v. Winston, 837 F.2d 348, 355 (9th Cir. 1987). A Bivens claim cannot stand against the 16 United States, or any of its departments, offices, or agencies. See FDIC v. Meyer, 510 U.S. 17 471 (1994). “[T[he purpose of Bivens is to deter the officer,” not the agency. Id. at 485. 18 Indeed, the Supreme Court has held that “[a]n extension of Bivens to agencies of the 19 Federal Government is not supported by the logic of Bivens itself.” Id. at 486. Accordingly, 20 to the extent that Plaintiff’s Complaint alleges constitutional violations on the part of DHS, 21 CBP, and MCC, he fails to state a claim upon which Bivens relief may be granted and these 22 Defendants must be dismissed pursuant to 28 U.S.C. § 1915(e)(2). 23 As to his Fourth Amendment false arrest claims against Jane Doe 1 and Jane Doe 2, 24 the Court finds Plaintiff’s Complaint alleges a plausible claim against these Defendants 25 sufficient to survive the “low threshold” set for sua sponte screening as required by 28 26 U.S.C. § 1915(e)(2) and § 1915A(b). See Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th 27 Cir. 2012); Iqbal, 556 U.S. at 678. 28 1 Plaintiff must, of course, identify the Defendants currently described only as “Jane 2 Doe 1 and Jane Doe 2” by their true names and substitute those individual persons as 3 parties before the U.S. Marshal will be ordered to serve them. See Aviles v. Village of 4 Bedford Park, 160 F.R.D. 565, 567 (1995) (Doe defendants must be identified and served 5 within [90] days of the commencement of the action against them); Fed. R. Civ. P. 6 15(c)(1)(C) & 4(m). Generally, Doe pleading is disfavored, Gillespie v. Civiletti, 629 F.2d 7 637, 642 (9th Cir. 1980), and in most instances it is impossible for the United States 8 Marshal to serve a party identified only as a Doe. See Walker v. Sumner, 14 F.3d 1415, 9 1422 (9th Cir. 1994) (in order to properly effect service under Rule 4 in an IFP case, the 10 plaintiff is required to “furnish the information necessary to identify the defendant.”); 11 Finefeuiaki v. Maui Cmty. Corr. Ctr. Staff & Affiliates, 2018 WL 3580764, at *6 (D. Haw. 12 July 25, 2018) (noting that “[a]s a practical matter, the United States Marshal cannot serve 13 a summons and complaint on an anonymous defendant.”). However, the Court will not 14 dismiss Jane Doe 1 and Jane Doe 2 as Defendants at this time because where the identity 15 of parties is not known prior to filing of an action, Ninth Circuit authority permits Plaintiff 16 the opportunity to pursue appropriate discovery to identify the unknown Does, unless it is 17 clear that discovery would not uncover their identity, or his pleading requires dismissal for 18 other reasons. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing 19 Gillespie, 629 F.2d at 642). 20 D. Leave to Amend 21 In light of Plaintiff’s pro se status, the Court grants him leave to amend his pleading 22 in order to name the individual officers he seeks to hold liable. See Rosati v. Igbinoso, 791 23 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint 24 without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely 25 clear that the deficiencies of the complaint could not be cured by amendment.’”) (quoting 26 Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). 27 28 1 Conclusion and Orders 2 Accordingly, the Court: 3 (1) GRANTS Plaintiff's Motion to Proceed /FP pursuant to 28 U.S.C. § 1915(a) 4 (ECF No. 5); 5 (2) DENIES Plaintiff's Motion to Appoint Counsel (ECF No. 3); 6 (3) DISMISSES claims against Department of Homeland Security, U.S. 7 || Customs and Border Protection, and Metropolitan Correctional Center for failing to state a 8 ||}claim upon which either § 1983 or Bivens relief may be granted pursuant to 28 U.S.C. 9 1915(e)(2)(B); 10 (4) GRANTS Plaintiff until April 4, 2022 to file a First Amended Complaint that 11 |/identifies by name the individual officers he seeks to hold liable, and if he so chooses, 12 || attempts to correct the deficiencies of pleading identified in the Court’s Order. Plaintiff's 13 ||First Amended Complaint must be complete by itself without reference to either of his 14 ||previous pleadings. Defendants not named and any claim not re-alleged in his First 15 || Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach 16 || Studios, Inc., 896 F.2d at 1546; Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 17 || (noting that claims dismissed with leave to amend which are not re-alleged in an amended 18 || pleading may be “considered waived if not repled.”). 19 If Plaintiff fails to file a First Amended Complaint by April 4, 2022, the Court will 20 || enter a final Order dismissing this civil action based both on his failure to state a claim 21 |Jupon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2) and his failure to 22 || prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 427 23 || F.3d 1164, 1169 (9th Cir. 2005) (“Ifa plaintiff does not take advantage of the opportunity 24 ||to fix his complaint, a district court may convert the dismissal of the complaint into 25 || dismissal of the entire action.”). 26 IT IS SO ORDERED. _ 27 ||Dated: March 10, 2022 Lo Ne 28 Honorable Linda Lopez United States District Judge