Rivera Anaya v. United States

• Court: District Court, S.D. California
• Decided: July 28, 2025
• Docket: 3:25-cv-00959
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANIEL RIVERA ANAYA, Case No.: 3:25cv959-LL-KSC

12 Plaintiff, ORDER: (1) GRANTING MOTION 13 vs. TO PROCEED IN FORMA PAUPERIS [ECF No. 2]; 14

15 UNITED STATES OF AMERICA, (2) DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM 16 Defendant. PURSUANT TO 28 U.S.C. 17 §§ 1915(e)(2)(B) 18 19 20 I. INTRODUCTION 21 Plaintiff Daniel Rivera Anaya (“Plaintiff” or “Anaya”), a federal pretrial detainee1 22 proceeding pro se, has filed a civil action along with a motion to proceed in forma pauperis 23 (“IFP”). See ECF Nos. 1, 2. In his Complaint, Anaya alleges his rights were violated under 24 25 26 1 The Court takes judicial notice of Plaintiff’s criminal case in United States v. Anaya 27 Rivera, No. 25-cr-0074-TWR (S.D. Cal.). See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (stating a court “‘may take notice of proceedings in other courts, both within 28 1 the Federal Tort Claims Act and the Alien Tort Statute. See generally, ECF No. 1. As 2 discussed below, the Court grants Plaintiff’s IFP motion and dismisses the Complaint 3 without prejudice. 4 II. MOTION TO PROCEED IFP 5 All parties instituting any civil action, suit or proceeding in a district court of the 6 United States, except an application for writ of habeas corpus, must pay a filing fee of 7 $405.2 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay the entire 8 fee at the time of filing only if the court grants the plaintiff leave to proceed IFP pursuant 9 to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 10 cf. Hymas v. U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an] 11 IFP application is denied altogether, Plaintiff’s case [cannot] proceed unless and until the 12 fee[s] [a]re paid.”). 13 To proceed IFP, prisoners must “submit[] an affidavit that includes a statement of 14 all assets [they] possess[,]” as well as “a “certified copy of the[ir] trust fund account 15 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 16 the filing of the complaint.” 28 U.S.C. § 1915(a)(1), (2); Andrews v. King, 398 F.3d 1113, 17 1119 (9th Cir. 2005). Using this financial information, the court “assess[es] and when funds 18 exist, collect[s], … an initial partial filing fee,” which is “calculated based on ‘the average 19 monthly deposits to the prisoner’s account’ or ‘the average monthly balance in the 20 prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in ‘monthly 21 payments of 20 percent of the preceding month’s income credited to the prisoner’s 22 account.” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. § 1915(b)(1)–(2)). In short, while 23 prisoners may qualify to proceed IFP without having to pay the full statutory filing fee 24 25 26 2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The additional $55 administrative fee does 28 1 upfront, they remain obligated to pay the full amount due in monthly payments. See Bruce 2 v. Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 3 281 F.3d 844, 847 (9th Cir. 2002). 4 In support of his IFP Motion, Anaya has provided a copy of his prison certificate 5 and trust account statement. ECF No. 2 at 4–6. During the six months prior to filing suit, 6 Anaya had an average monthly balance of $9.00, average monthly deposits of $9.00, and 7 an available account balance of $6.96. Id. at 4. Accordingly, the Court GRANTS Plaintiff’s 8 IFP motion and assesses an initial partial filing fee of $1.80 pursuant to 28 U.S.C. 9 § 1915(b)(1). However, this initial fee needs be collected only if sufficient funds are 10 available in Plaintiff’s account at the time this Order is executed. See 28 U.S.C. 11 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a 12 civil action or appealing a civil action or criminal judgment for the reason that the prisoner 13 has no assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d 14 at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal 15 of a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds 16 available to him when payment is ordered”). The facility where Plaintiff is detained must 17 thereafter collect the full balance of the $350 fee owed and forward payments to the Clerk 18 of the Court as provided by 28 U.S.C. § 1915(b)(2). 19 III. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) 20 A. Legal Standards 21 Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), the Court must screen a 22 prisoner’s IFP complaint and sua sponte dismiss it to the extent that it is frivolous, 23 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 24 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010); Lopez v. Smith, 203 F.3d 1122, 25 1126–27 (9th Cir. 2000) (en banc). “The standard for determining whether Plaintiff has 26 failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the 27 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” 28 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a 1 complaint “contain sufficient factual matter . . . to state a claim to relief that is plausible on 2 its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 3 While detailed factual allegations are not required, “[t]hreadbare recitals of the elements 4 of a cause of action, supported by mere conclusory statements, do not suffice” to state a 5 claim. Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully- 6 harmed me accusation[s]” fall short of meeting this plausibility standard. Id. 7 B. Plaintiff’s Allegations 8 Anaya alleges that on December 11, 2024, he fled his residence in Tijuana, Mexico 9 and went to the pedestrian port-of-entry at the San Ysidro border crossing, seeking to apply 10 for asylum in the United States. ECF No. 1 at 4. When Anaya was “inside the turnstile,” a 11 Customs and Border Protection (“CBP”) Officer Rivero blocked Anaya from proceeding 12 and asked him for his passport. Id. at 5. Anaya then “pushed . . . forward to exit the 13 turnstile” so that he could pull his documents from an envelope he was holding. Id. Officer 14 Rivero seemed upset that Anaya had exited the turnstile and “without warning,” “viciously 15 push[ed]” Anaya back toward the border. Rivero was joined by another federal officer, and 16 both pushed Plaintiff “multiple times” while Plaintiff told them to stop. Id. Other officers 17 arrived and together they “forcefully push[ed]” Anaya across the boundary gate and back 18 into Mexico territory. Id. 19 During the struggle, an officer ripped three buttons of Plaintiff’s shirt and threw 20 Plaintiff’s documents and cellphone onto the Mexican side of the border. Id. Two CPB 21 officers “aggressively kicked” Anaya as he was being dragged back into Mexico. Id. 22 Once back on the Mexican side of the border, Anaya retrieved his cellphone and 23 “decided to return near the gate and stand [his] ground at the border line.” Id. Officers were 24 “enraged” that Anaya had returned to the border line. Id. When Plaintiff tried to explain 25 himself, they closed the gate. As Plaintiff attempted to “stand [his] ground,” another 26 “scuffle” ensued, which turned into a “tug of war.” Id. During the scuffle, papers Anaya 27 was holding came loose and this was “misinterpreted” as Anaya attempting to swing at 28 Rivero. After this, agents “dragged [Anaya] back into the United States” and away from 1 public view. Id. He was then “brutally” taken down by officers, who then “pil[ed] on top” 2 of him. Id. 3 Plaintiff was in pain and yelled that he was not resisting. But while he was face down 4 on the ground, CBP Officer Garcia “slammed” Anaya’s head onto the concrete, causing 5 his eyeglasses to fall off and leaving swelling on his left cheek. Plaintiff was then pulled 6 up by officers and handcuffed to a bench. Id.at 5–6. Anaya suffered “nausea, dizziness, 7 [and] pain all over [his] body.” Id. at 6. He requested medical attention but was ignored. 8 Id. Plaintiff asked about his belongings and officers retrieved his eyeglasses and paperwork 9 but told Plaintiff they could not find his cellphone. Id. 10 Officers then took Anaya to a security building where he was fingerprinted and 11 booked for “assault on a federal officer.” Id. At some point, Plaintiff asked to speak with 12 the Mexican Consulate, but his request was ignored. Id. 13 C. Discussion 14 Anaya alleges his rights were violated under the Federal Tort Claims Act (“FTCA”) 15 and the Alien Tort Statute (“ATS”). See generally, id. He names only the United States as 16 a defendant and seeks money damages and injunctive relief. Id. at 11. 17 1. Federal Tort Claim Act 18 The FTCA represents Congress’ waiver of sovereign immunity “for claims arising 19 out of torts committed by federal employees.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 20 217–18 (2008) (citing 28 U.S.C. § 1346(b)(1)). The FTCA, however, has only waived the 21 United States’ sovereign immunity for “certain categories of claims.” Id. at 218. In general, 22 the United States only waives sovereign immunity if an FTCA claim is: (1) against the 23 United States; (2) for money damages; (3) for injury or loss of property, personal injury, 24 or death; (4) that was “caused by the negligent or wrongful act or omission of any employee 25 of the Government;” (5) while such employee is acting within the scope of their 26 employment; and (6) “under circumstances where the United States, if a private person, 27 would be liable to the claimant in accordance with the law of the place where the act or 28 omission occurred.” 28 U.S.C. § 1346(b)(1). 1 To state a claim and invoke the Court’s subject-matter jurisdiction under the FTCA, 2 Plaintiffs must plausibly allege all six elements of Section 1346(b). In addition, section 3 2675(a) requires a plaintiff to show he “first presented the claim to the appropriate Federal 4 agency and his claim [was] finally denied by the agency in writing and sent by certified or 5 registered mail.” 28 U.S.C. § 2675(a). 6 Here, Plaintiff’s FTCA claims must be dismissed because he has not adequately 7 alleged exhaustion of his administrative remedies. While Anaya states he presented his 8 claims to the Department of Homeland Security for “administrative review” by mailing an 9 “SF-95” to the agency on January 22, 2025, he acknowledges that he has not received a 10 notice of receipt or any response from the agency. ECF No. 1 at 11; see also ECF No. 1-3 11 at 3–4. A federal court does not have subject matter jurisdiction over an FTCA claim unless 12 the plaintiff first presented the underlying tort claim to the agency and it was “finally 13 denied” by the agency. See 28 U.S.C. § 2675(a); McNeil v. United States, 508 U.S. 106, 14 111–13 (1993) (strictly construing administrative exhaustion requirement in 15 28 U.S.C. § 2675(a) and holding that FTCA action filed before exhaustion completed could 16 not proceed in district court); Brady v. United States, 211 F.3d 499, 502–03 (9th Cir. 2000) 17 (administrative exhaustion requirement in 28 U.S.C. § 2675(a) is jurisdictional); see also 18 Kimber v. Del Toro, No. 3:21cv1487-BTM-BLM, 2024 WL 171386, at *5 (S.D. Cal. Jan. 19 16, 2024) (“A plaintiff seeking to bring suit under the FTCA must affirmatively allege that 20 they filed a claim with the appropriate federal agency and that the agency denied that 21 claim.”). Therefore, as currently pleaded, the Court lacks jurisdiction over Plaintiff’s FTCA 22 claims. See 28 U.S.C. § 2675(a). 23 Furthermore, even if Plaintiff had properly exhausted his administrative remedies, 24 the FTCA claims as alleged in the Complaint would still be subject to dismissal. As noted 25 above, to state an FTCA claim, plaintiffs must show that the conduct of the government 26 violates some law of the state where the act or omission occurred. See FDIC v. Meyer, 27 510 U.S. 471, 477–78. Thus, in this case, any duty that the United States owed Plaintiff 28 must be found in California state tort law. See Lutz v. United States, 685 F.2d 1178, 1184 1 (9th Cir. 1982). But Anaya fails to clearly identify what specific California tort(s) provide 2 the basis for his claim. Instead, he makes vague references to “intentional tortious physical 3 pain, [e]motional distress, humiliation, degradation, anguish, embarrassment, intimidation 4 f[r]ustration, suffering and ongoing medical condition of anxiety,” all of which are 5 insufficient to state a plausible tort claim. ECF No. 1 at 11. See Iqbal, 556 U.S. at 678 6 (stating “mere conclusory statements” are insufficient to state a claim); see also Gelazela 7 v. United States, No. 122cv01539ADAEPGPC, 2023 WL 5956843, at *1 (E.D. Cal. Sept. 8 13, 2023) (finding “bare invocations of ‘personal injury,’ ‘intentional infliction of 9 emotional distress,’ ‘strict liability tort,’ ‘Prima Facie tort,’ and ‘negligence’ are patently 10 insufficient” to support an FTCA claim); Karkour v. United States, No. 11 CV1000831MMMRCX, 2010 WL 11595795, at *4 (C.D. Cal. Mar. 10, 2010) (dismissing 12 FTCA claim when complaint failed to identify any particular tort upon which the plaintiff’s 13 claims were based); Reed v. Milusnic, No. 2:22cv03973-JLS-JC, 2024 WL 1698107, at *7 14 (C.D. Cal. Mar. 1, 2024) (explaining that to state an FTCA claim, a plaintiff must “state 15 the tort(s) he is claiming against the United States and provide the specific factual 16 allegations supporting his FTCA claim”). 17 And finally, to the extent Plaintiff raises an FTCA claim based on an alleged 18 violation of the Fourth Amendment [see ECF No. 1 at 8], he also fails to state a claim 19 because the United States is not liable under the FTCA for constitutional tort claims. See 20 Meyer, 510 U.S. at 478; Cato v. United States, 70 F.3d 1103, 1111 (9th Cir. 1995). 21 Accordingly, Plaintiff’s FTCA claims are dismissed without prejudice for failure to 22 state a claim. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Iqbal, 556 U.S. at 678. 23 2. Alien Tort Statute 24 Anaya also fails to state a claim under the Alien Tort Statute. The ATS provides that 25 “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort 26 only, committed in violation of the law of nations or a treaty of the United States.” 27 28 U.S.C. § 1350. Not all violations of international law are actionable under the ATS; in 28 order to state an ATS claim, a party must allege a violation of a definite and accepted norm 1 of international law. See Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004); Bowoto v. 2 Chevron Corp., 557 F. Supp. 2d 1080, 1089 (N.D. Cal. 2008). 3 Moreover, federal courts have held that the ATS does not imply any waiver of 4 sovereign immunity. See Quintero Perez v. United States, 8 F.4th 1095, 1100–01 5 (9th Cir. 2021) (“[T]he ATS ‘does not waive sovereign immunity.”); see also Tobar v. 6 United States, 639 F.3d 1191, 1196 (9th Cir. 2011) (“[T]he Alien Tort Statute has been 7 interpreted as a jurisdiction statute only—it has not been held to imply any waiver of 8 sovereign immunity.”); Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 (D.C. Cir. 1985) 9 (“The Alien Tort Statute itself is not a waiver of sovereign immunity.”); Goldstar (Pan.) 10 S.A. v. United States, 967 F.2d 965, 968 (4th Cir. 1992) (same). Thus, a party asserting 11 jurisdiction under the ATS must establish, independent of that statute, that the United States 12 has consented to suit. 13 Anaya has failed to state an ATS claim against the United States because he has not 14 shown that the United States has waived sovereign immunity for such a claim. Anaya 15 points to both the Universal Declaration of Human Rights and the Vienna Convention for 16 Consular Relations as bases for his ATS claim. See ECF No. 1 at 7, 9–10. But the Supreme 17 Court has held that “the [Universal] Declaration [of Human Rights] does not of its own 18 force impose obligations as a matter of international law.” Sosa, 542 U.S. at 734; see also 19 Diaz v. Grupo Mexico, Inc., No. CV-10-00355-PHX-ROS, 2011 WL 13183233, at *2 (D. 20 Ariz. Mar. 29, 2011), aff’d, 487 F. App’x 366 (9th Cir. 2012) (“The Universal Declaration 21 of Human Rights . . . cannot establish customary international law on its own because it is 22 merely aspirational.”). Likewise, Article 36 of the Vienna Convention does not create a 23 private cause of action under the ATS. Karboau v. City of Portland, 24 498 Fed. App’x 747 (9th Cir. 2012) (finding private rights under Article 36 are not 25 enforceable under the Alien Tort Statute); cf. Cornejo v. County of San Diego, 26 504 F.3d 853, 855 (9th Cir. 2007) (concluding “Article 36 does not create judicially 27 enforceable rights. . ..”); see also Mora v. New York, 524 F.3d 183, 209 (2d Cir. 2008) 28 (declining to recognize an ATS cause of action for the alleged violation of Article 36 of 1 the Vienna Convention); Gandara v. Bennett, 528 F.3d 823, 830 n.1 (11th Cir. 2008) 2 (Rodgers, J., concurring) (“Accordingly, as the majority recognizes, the law of this circuit 3 is that the Convention does not confer individual rights that may be enforced through 4 § 1983 or § 1350). 5 For the foregoing reasons, Plaintiff has failed to state a claim under the Alien Tort 6 Statute. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Iqbal, 556 U.S. at 678. 7 D. Leave to Amend 8 Given Plaintiff’s pro se statue, the Court GRANTS him leave to amend his 9 Complaint. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court 10 should not dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear 11 that the deficiencies of the complaint could not be cured by amendment.’”) (quoting Akhtar 12 v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). 13 IV. CONCLUSION AND ORDER 14 Accordingly, the Court: 15 1. GRANTS Plaintiff’s Motion to Proceed In Forma Pauperis [ECF No. 2]; 16 2. ORDERS the Warden of Otay Mesa Detention Center, or their designee, to 17 collect from Plaintiff’s trust account the $1.80 initial filing fee assessed, if those funds are 18 available at the time this Order is executed, and to forward whatever balance remains of 19 the full $350 owed in monthly payments in an amount equal to twenty percent (20%) of 20 the preceding month’s income to the Clerk of the Court each time the amount in Plaintiff’s 21 account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE 22 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 23 ACTION. 24 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Warden, 25 Otay Mesa Detention Center, 7488 Calzada De La Fuente, San Diego, CA 92231. 26 4. DISMISSES Plaintiff’s Complaint for failing to state a claim pursuant to 27 28 U.S.C. § 1915(e)(2) and § 1915A(b) without prejudice. 28 / / / 1 5. On or before September 26, 2025, Plaintiff may file a First Amended 2 ||Complaint which cures the deficiencies of pleading noted in this Order. Plaintiffs 3 |}Amended Complaint must be complete by itself without reference to his original 4 ||Complaint. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., 5 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the 6 || original.’”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims 7 || dismissed with leave to amend which are not re-alleged in an amended pleading may be 8 || “considered waived if not repled.’’). 9 If Plaintiff fails to timely file a First Amended Complaint, the Court will enter a final 10 || Order dismissing this civil action based both on failure to state a claim upon which relief 11 be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(a1) and § 1915A(b)(1), and failure to 12 || prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 427 13 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity 14 ||to fix his complaint, a district court may convert the dismissal of the complaint into 15 || dismissal of the entire action.”). 16 IT IS SO ORDERED. 17 Dated: July 28, 2025 NO 18 QF 19 Honorable Linda Lopez 30 United States District Judge 21 22 23 24 25 26 27 28 10