Vaclav Ondrisek v. United States Department of Homeland Security, et al.

Opinion

DISTRICT OF NEVADA 2 * * * 3 Vaclav Ondrisek, Case No. 2:25-cv-01346-JAD-BNW 4 Plaintiff, v. 6 United States Department of Homeland 7 Security, et al.,

8 Defendants.

9 10 Pro se Plaintiff Vaclav Ondrisek brings this lawsuit and moved to proceed in forma 11 pauperis (IFP). See ECF No. 1. Plaintiff submitted the affidavit required by 28 U.S.C. § 1915(a) 12 showing an inability to prepay fees or costs or give security for them at ECF No. 5. Accordingly, 13 this Court will grant his request to proceed in forma pauperis at ECF No. 1. This Court now 14 screens Plaintiff’s complaint (ECF No. 1-1). 16 Courts must conduct a preliminary screening in any case in which a prisoner seeks redress 17 from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 18 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 19 that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 20 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 21 (2). In addition to the screening requirements under § 1915A, the Prison Litigation Reform Act 22 requires a federal court to dismiss a prisoner’s claim if it “fails to state a claim on which relief 23 may be granted.” 28 U.S.C. § 1915(e)(2); accord Fed. R. Civ. P. 12(b)(6). 24 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for 25 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 26 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient 27 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft 1 dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of 2 his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 3 2014) (quoting Iqbal, 556 U.S. at 678). 4 In considering whether the complaint is sufficient to state a claim, all allegations of 5 material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler 6 Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 7 Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 8 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 9 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. 10 Unless it is clear the complaint’s deficiencies could not be cured through amendment, a pro se 11 plaintiff should be given leave to amend the complaint with notice regarding the complaint’s 12 deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 13 Here, Plaintiff attempts to bring a claim under the Administrative Procedure Act (APA) to 14 seek the return of $6,000 (or $7,000) dollars he posted as bond in his immigration case. He 15 alleges he posted this amount in 2002 or 2003 in order to be released from immigration custody. 16 He alleges he recently learned that DHS claims he breached the bond in 2011. But he maintains 17 he was never in breach of the bond requirements. Moreover, he alleges he was never notified of 18 such breach or provided an opportunity to respond. 19 Because the APA does not contain a specific statute of limitations, courts who have 20 considered challenges to a regulation under the APA have adopted the six-year general civil 21 action statute of limitations contains in 28 U.S.C. § 2401(a). See Sierra Club v. Penfold, 857 F.2d 22 1307, 1315 (9th Cir.1988). Plaintiff alleges that he recently found out that DHS believes 23 (incorrectly) that he breached the bond conditions back in 2011. But Plaintiff does not allege any 24 facts explaining why he waited until 2025 to bring this claim. That is, if his contention is that he 25 never breached the bond conditions, then Plaintiff should have brought this claim as soon as he 26 was no longer subject to the bond. He does not allege any facts regarding when the money should 27 have been returned or why he waited until 2025 to bring this claim. While it appears that this 1 || claim may be barred by the statute of limitations, this Court will dismiss the claim with leave to 2 || amend. 3 || IL. CONCLUSION 4 IT IS THEREFORE ORDERED that Plaintiffs application to proceed in forma 5 || pauperis (ECF No. 1) is GRANTED. Plaintiff will not be required to pay the filing fee in this 6 || action. Plaintiff is permitted to maintain this action to conclusion without the necessity of 7 || prepayment of any additional fees or costs or the giving of a security for fees or costs. This order 8 || granting leave to proceed in forma pauperis does not extend to the issuance of subpoenas at 9 || government expense. 10 IT IS FURTHER ORDERED that Plaintiff's complaint (ECF No. 1-1) is dismissed with 11 || leave to amend. 12 IT IS FURTHER ORDERED that the clerk of court must detach and file Plaintiff's 13 || complaint (ECF No. 1-1). 14 IT IS FURTHER ORDERED that Plaintiff's complaint (ECF No. 1-1) is dismissed 15 || without prejudice. 16 IT IS FURTHER ORDERED that if Plaintiff chooses to file an amended complaint, he 17 |) must do so by March 23, 2026. Failure to file an amended complaint in accordance with this order 18 || will result in a recommendation that this case be dismissed. 19 20 DATED: February 23, 2026 21 22 BRENDA WEKSLER □ 53 UNITED STATES MAGISTRATE JUDGE

24 25 26 27 28