Araujo v. Legal Department of Social Services

[6] 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA [9] 10 RAFAEL ARAUJO, Case No.: 21-cv-1172-JAH-BGS 11 Plaintiff, ORDER: 12 v. 1. GRANTING MOTION TO 13 LEGAL DIVISION DEPARTMENT OF PROCEED IN FORMA PAUPERIS SOCIAL SERVICES; AND 14 [Doc. No. 2] AND: CALIFORNIA ATTORNEY GENERAL, [15] Defendant. 2. DISMISSING COMPLAINT 16 WITHOUT PREJUDICE IN PART AND WITH PREJUDICE IN PART [17] PURSUANT TO 28 U.S.C. § 18 1915(e)(2)(B)(ii) [Doc. No. 1]. [19] INTRODUCTION [20] On June 25, 2021, Rafael Araujo (“Plaintiff”), proceeding pro se, filed a complaint [21] against the Legal Division Department of Social Services (DSS) and the California [22] Attorney General (collectively, “Defendants”) alleging aggravated identity theft, extortion, [23] as well as violations of his rights under the Fourth Amendment, the Fourteenth [24] Amendment, and the Health Insurance Portability and Accountability Act (HIPAA). [25] Plaintiff has also filed a motion for leave to proceed in forma pauperis (IFP). After a careful [26] review of the pleadings and for the reasons set forth below, the Court (1) GRANTS [28] 1 Plaintiff’s motion for leave to proceed IFP, and (2) DISMISSES the Complaint. The Court 2 grants Plaintiff leave to amend as described herein. 3 DISCUSSION [4] I. Plaintiff’s IFP Motion [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 $400.1 See 28 U.S.C. § 1914 (a). The action may proceed despite a plaintiff’s failure to [8] prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 9 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. [10] Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Courts grant leave to proceed IFP when [11] plaintiffs submit an affidavit including a statement of all their assets, showing an inability [12] to pay the statutory filing fee. See 28 U.S.C. § 1915 (a). [13] In support of his motion to proceed IFP, Plaintiff submitted an application detailing [14] certain financial information. See Doc. No. 2. Plaintiff has received an average monthly [15] income of $1,200.00 during the past twelve months. Id. at 1 . Plaintiff’s average monthly [16] expenses total $1460.00, which exceeds his total average monthly income. Id. Plaintiff [17] indicates no other assets of value. Id. at 3 . Based on these representations, the Court finds [18] Plaintiff is unable to pay the statutory filling fee. Accordingly, the Court GRANTS [19] Plaintiff’s motion for leave to proceed IFP. [20] /// [21] /// [22] /// [23] /// [25] 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $50. See 28 U.S.C. § 1914 (a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2014). The additional $50 administrative fee does [28] 1 II. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915 (e)(2)(B) 2 When a plaintiff seeks leave to proceed IFP, pursuant to 28 U.S.C. § 1915 (a), the 3 Complaint is subject to sua sponte review and mandatory dismissal if it is “frivolous, 4 malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary 5 relief from a defendant immune from such relief.” See 28 U.S.C. § 1915 (e)(2)(B); Coleman 6 v. Tollefson, 575 U.S. 532, 537 (2015) (pursuant to 28 U.S.C. § 1915 (e)(2) “the court shall 7 dismiss the case at any time if the court determines that… (B) the action or appeal… (ii) 8 fails to state a claim on which relief may be granted.”); Lopez v. Smith, 203 F.3d 1122 , 9 1127 (9th Cir. 2000) (en banc) (§ 1915(e) “not only permits but requires a district court to 10 dismiss an in forma pauperis complaint that fails to state a claim.). “The standard for 11 determining whether a plaintiff has failed to state a claim” upon which relief can be granted 12 under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) 13 standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 14 2012). 15 Rule 12(b)(6) test the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729 , 16 732 (9th Cir. 2001). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks 17 a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th 18 Cir. 1984); see Neitzeke v. Williams, 490 U.S. 319, 326 (1989) (“Rule 12(b)(6) authorizes 19 a court to dismiss a claim on the basis of a dispositive issue of law.”). Alternatively, a 20 complaint may be dismissed where it presents a cognizable legal theory yet fails to plead 21 essential facts under that theory. Robertson, 749 F.2d at 534 . While a plaintiff need not 22 give “detailed factual allegations,” he must plead sufficient facts that, if true, “raise a right 23 to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 , 545 24 (2007). 25 To survive dismissal, the complaint must contain “a short and plain statement of the 26 claim that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “A claim has facial 27 plausibility when the plaintiff pleads factual content that allows the court to draw the 28 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 1 Iqbal, 556 U.S. 662, 678 (2009). Detailed factual allegations are not required, but 2 “[t]hreadbare” recitals of the elements of a cause of action, supported by mere conclusory 3 statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555 ). If a court determines 4 that a complaint fails to state a claim, the court should grant leave to amend unless it 5 determines that the pleading could not possibly be cured by the allegation of other facts. 6 See Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). 7 A. Plaintiff’s Claims Are Barred by the Eleventh Amendment 8 The Eleventh Amendment states, “the Judicial power of the United States shall not 9 be construed to extend to any suit in law or equity, commenced or prosecuted against one 10 of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign 11 State.” U.S. Const. amend. XI. “Although by its terms the Amendment applies only to suits 12 against a State by citizens of another State, [the U.S. Supreme Court has] extended the 13 Amendment's applicability to suits by citizens against their own States.” Bd. of Trs. v. 14 Garrett, 531 U.S. 356, 363 (2001). “The ultimate guarantee of the Eleventh Amendment 15 is that nonconsenting States may not be sued by private individuals in federal court under 16 sovereign immunity.” Id. Furthermore, “absent waiver by the State or valid congressional 17 override, the Eleventh Amendment bars a damages action against a State and state officials 18 in federal court.” Ky. v. Graham, 473 U.S. 159, 169 (1985). 19 i. Defendant California Attorney General 20 As stated above, the Eleventh Amendment prohibits a suit for damages against a 21 State in federal court, absent waiver by the State or valid congressional override. Id. “This 22 bar remains in effect when state officials are sued for damages in their official capacity.” [23] Id. However, a state official is not entitled to Eleventh Amendment immunity when the 24 official is sued in his or her individual capacity only. Hafer v. Melo, 502 U.S. 21, 31 (1991). 25 Here, Plaintiff’s claims against the California Attorney General are barred by the 26 Eleventh Amendment because the plaintiff is a private citizen attempting to sue a state 27 official in his or her official capacity. See Ky v. Graham, 473 U.S. 166 (1985) (“[A] [28] 1 plaintiff seeking to recover damages against a state official in his or her official capacity 2 must look to the government entity itself”). 3 Because the Complaint asserts the California Attorney General is liable in his or her 4 official capacity, the claim must be dismissed with prejudice. See Dittman v. California, [5] 191 F.3d 1020, 1025 (9th Cir. 1999) (“under the Eleventh Amendment, state officials in 6 their official capacity are immune from private damage actions or suits for injunctive relief 7 brought in federal court.”) “The entity that is the real party in interest is the State of 8 California.” Spengler v. Attorney General Office, No.:CV-17-8643-DOC (SP), 2018 WL 9 10498579 2018WL, at *3 (C.D. Cal. June 18, 2018); see also Diaz v. Carlson, 5 F.Supp.2d 10 809 (C.D. Cal. 1997) (holding that a claim falls within the Eleventh Amendment’s bar on 11 federal jurisdiction for claims against a state official when the state is the real, substantial 12 party in interest). 13 “[A] suit for money damages may be prosecuted against a state officer in their 14 individual capacity for unconstitutional or wrongful conduct fairly attributable to the 15 officer themself, so long as the relief is sought not from the state treasury but from the 16 officer personally.” Alden v. Me., 527 U.S. 706, 757 (1999). Even with liberal construction 17 of the complaint, (Erickson v. Pardus, 551 U.S. 89, 94 (2007)), Plaintiff fails to allege that 18 the California Attorney General is liable in his or her individual capacity or allege facts for 19 this Court to ascertain whether the California Attorney General in his or her individual 20 capacity acted, failed to act, or participated in another’s affirmative act causing a 21 deprivation of Plaintiff’s rights. See Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a 22 state official causes deprivation of a constitutional right if he or she does an affirmative 23 act, participates in another's affirmative acts, or omits to perform an act which he or she is 24 legally required to do that causes the deprivation of which complaint is made); see also 25 Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (“[t]he inquiry into causation must be 26 individualized and focus on the duties and responsibilities of each individual defendant 27 whose acts or omissions are alleged to have caused a constitutional deprivation”). [28] 1 Accordingly, Plaintiff’s claims against the California Attorney General in his or her official 2 capacity must be dismissed with prejudice. See Dittman, 191 F.3d at 1025 . 3 ii. Defendant DSS 4 As stated, “[t]he Eleventh Amendment has been authoritatively construed to deprive 5 federal courts of jurisdiction over suits by private parties against unconsenting 6 States.” Seven Up Pete Venture v. Schweitzer, 523 F.3d 948, 956 (9th Cir.2009), 7 citing Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996). The Eleventh Amendment bars a 8 suit in which a state agency, such as DSS, is named as a defendant regardless of the relief 9 sought. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). The 10 Eleventh Amendment applies to suits seeking injunctive relief against the State or its 11 agency as well as to suits for damages. Id. at 101–102. 12 Here, Plaintiff’s suit against DSS for monetary damages and injunctive relief is 13 barred by the Eleventh Amendment. As a state agency, DSS is protected by the Eleventh 14 Amendment and cannot be sued in federal court for any of the claims for relief sought by 15 Plaintiff.2 Accordingly, Plaintiff’s Complaint against DSS is dismissed with prejudice. See 16 Diaz v. Carlson, 5 F.Supp.2d 809 (C.D. Cal. 1997) (where a claim fell within the Eleventh 17 Amendment’s bar on federal jurisdiction for claims against a state agency and therefore the 18 deficiencies of the complaint could not be cured, dismissal of the action with prejudice was 19 appropriate). 20 B. Sufficiency of Allegations 21 Even if maintaining this action against the named Defendants was not a violation of 22 the Eleventh Amendment, each cause of action would be dismissed for the following 23 reasons. 24 /// 25 /// [27] 2 Plaintiff admits in his Complaint that he is suing DSS as an agency of the state of [28] 1 i. First Claim: HIPAA Violation 2 “HIPAA itself does not provide for a private right of action.” Webb v. Smart 3 Document Solutions, LLC, 499 F.3d 1078, 1082 (9th Cir. 2007) (citing Standards for 4 Privacy of Individually Identifiable Health Information, 65 Fed. Reg. 82462 -01, 82601 5 (Dec. 28, 2000) (to be codified at 45 C.F.R. pt. 160 and 164) (“Under HIPAA, individuals 6 do not have a right to court action.”). Thus, Plaintiff’s first cause of action under HIPAA 7 must be dismissed with prejudice. 8 ii. Second Claim: Aggravated Identity Theft and Extortion 9 Plaintiff alleges a violation of Aggravated Identity Theft pursuant to 18 U.S.C. § 10 1028. There is no separate, private right of action for aggravated identity theft, as 18 11 U.S.C. § 1028 is a criminal statute that does not support a private right of action. See Ross 12 v. Orange Cty. Bar Ass'n, 369 F. App'x 868, 869 (9th Cir. 2010) (citing Wilcox v. First 13 Interstate Bank, 815 F.2d 522 , 533 n. 1 (9th Cir. 1987). Therefore, Plaintiff’s claim of 14 aggravated identity theft must be dismissed with prejudice. 15 With respect to California Penal Code § 518, the California Penal Code provides the 16 definition of the crime of extortion but does not provide a private, civil right of action. 17 See Thomas v. Denny's Restaurant, No. 15-cv-01113-DAD-SKO, 2015 WL 9583029 , at 18 *2, n.4 (E.D. Cal. Dec. 31, 2015) (“Section 518 provides the definition of criminal 19 extortion. There is no private right of action under this section.”). Accordingly, “Penal 20 Code section 518 does not provide a private right of action.” Dobson v. U.S. Bank Trust, 21 N.A, 2021 WL 1235248 2021WL, at *2 (C.D. Cal. February 19, 2021). Therefore, 22 Plaintiff’s extortion claim pursuant to California Penal Code § 518 is dismissed with 23 prejudice. 24 iii. Fourth Amendment and Fourteenth Amendment Violations 25 The third cause of action alleges violations of Plaintiff’s protections provided by the 26 Fourth Amendment and the Fourteenth Amendment Due Process Clause. Because Plaintiff 27 has not pled that any state officer of the state of California is liable in his or her individual [28] | ||capacity, Plaintiff's third cause of action alleging Fourth and Fourteenth Amendment 2 || violations are also dismissed without prejudice. 3 CONCLUSION AND ORDER 4 For all the reasons discussed above, IT IS HEREBY ORDERED: 5 1. Plaintiff's Motion for Leave to Proceed IFP, pursuant to 28 U.S.C. § 1915 (a), 6 [Doc. No. 2] is GRANTED; 7 2. The Complaint as to Defendant DSS is DISMISSED with prejudice. 8 3. The Complaint as to Defendant California Attorney General in his or her official 9 capacity is DISMISSED with prejudice. 10 4. Plaintiffs claims alleging HIPAA, Aggravated Identity Theft, and Extortion 11 violations are DISMISSED with prejudice. 12 5. Plaintiffs claims alleging Fourteenth Amendment Due Process and Fourth 13 Amendment violations are DISMISSED without prejudice. 14 6. The Court GRANTS Plaintiff forty-five (45) days from the filing of this Order to file 15 an Amended Complaint which cures all the deficiencies described herein. □□□□□□□□□□□ 16 Amended Complaint must be complete in itself without reference to his original 17 pleading. Defendants not named and any claims not re-alleged in the Amended 18 Complaint will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, 19 Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 20 pleading supersedes the original.”); Lacey v. Maricopa County, 693 F.3d 896 , 928 21 (noting that claims dismissed with leave to amend which are not re-alleged in an 22 amended pleading may be “considered waived if not repled.’’). A failure to timely file 23 an Amended Complaint will result in dismissal of this action, without further order of 24 the Court. 25 IT IS SO ORDERED. 26 ||DATED: July 12, 2022 27 JQHN A. HOUSTON 28 JNITED STATES DISTRICT JUDGE