Sanchez-Rivera v. United States

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 JUAN SANCHEZ-RIVERA, Case No. 22-cv-1254-BAS-BGS Reg. No. 073-830-803 [12] ORDER: Plaintiff, [13] v. (1) GRANTING MOTION TO [14] PROCEED IN FORMA UNITED STATES OF AMERICA, 15 PAUPERIS [ECF No. 2]; AND Defendant. [16] (2) DIRECTING U.S. MARSHAL TO [17] EFFECT SERVICE OF 18 COMPLAINT PURSUANT TO 28 U.S.C. § 1915 (d) AND Fed. R. Civ. 19 P. 4 (c)(3) [22] 23 Juan Sanchez-Rivera (“Plaintiff”), a federal immigration detainee at the Imperial 24 Regional Detention Facility (“IRDF”) in Calexico, California, and proceeding pro se, has 25 filed a civil action (“Compl.”), alleging claims under the Federal Tort Claims Act 26 (“FTCA”), 28 U.S.C. § 1346 and § 2674. (Compl., ECF No. 1.) In addition, Plaintiff seeks 27 to proceed in forma pauperis (“IFP”). (IFP Mot., ECF No. 2.) For the reasons set forth [28] 1 below, the Court GRANTS the IFP Motion and finds Plaintiff has alleged an FTCA claim 2 sufficient to survive pre-answer screening pursuant to 28 U.S.C. § 1915 (e)(2)(B)(ii). 3 I. IFP Motion 4 A party who institutes a civil action, suit, or proceeding in a district court of the 5 United States, except for an application for writ of habeas corpus, must pay a filing fee of 6 $402.1 See 28 U.S.C. § 1914 (a). The action may proceed despite a plaintiff’s failure to 7 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 8 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 9 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 10 Indigency is the benchmark for whether a plaintiff qualifies for IFP status. See 11 Fernandez v. Madden, No. 22-cv-0446-BAS-WVG, 2022 WL 3109941 , at *1 (S.D. Cal. 12 Aug. 4, 2022). The determination of indigency falls within the district court’s sound 13 discretion. See Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (holding 14 that “[s]ection 1915 typically requires the reviewing court to exercise its sound discretion 15 in determining whether the affiant has satisfied the statute’s requirement on indigency”), 16 rev’d on other grounds, 506 U.S. 194 (1993). It is well-settled that a party need not be 17 completely destitute to proceed IFP. See Adkins v. E.I. DuPont de Nemours & Co., 335 18 U.S. 331 , 339–40 (1948). To qualify for IFP status, “an affidavit [of poverty] is sufficient 19 which states that one cannot because of his poverty pay or give security for costs . . . and 20 still be able to provide himself and the dependents with the necessities of life.” Id. at 339 . 21 However, “the same even-handed care must be employed to assure that federal funds are 22 not squandered to underwrite, at public expense . . . the remonstrances of a suitor who is 23 financially able, in whole or in part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. 24 Supp. 848, 850 (D.R.I. 1984). [25] 26 1 In addition to the $350 statutory fee, civil litigants must pay an administrative fee of $52. See 28 U.S.C. § 1914 (a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. 27 Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to proceed IFP. Id. [28] 1 “Unlike other indigent litigants, prisoners proceeding IFP must pay the full amount 2 of filing fees in civil actions and appeals pursuant to the [Prison Litigation Reform Act 3 (“PLRA”)].” Agyeman v. Immigration & Naturalization Servs., 296 F.3d 871, 886 (9th 4 Cir. 2002). As defined by the PLRA, a “prisoner” is “any person incarcerated or detained 5 in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent 6 for, violations of criminal law or the terms and conditions of parole, probation, pretrial 7 release, or diversionary program.” 28 U.S.C. § 1915 (h). However, a person detained and 8 subject to removal or deportation—like Plaintiff here—is not a “prisoner” under the PLRA. 9 See Agyeman, 296 F.3d at 886 ; Ojo v. Immigration & Naturalization Servs., 106 F.3d 680 , 10 682–83 (5th Cir. 1997) (holding that a detainee of the Immigration and Naturalization 11 Service (“INS”) is not a prisoner for the purpose of the PLRA filing fee provision); cf. 12 Andrews v. King, 398 F.3d 1113, 1122 (9th Cir 2005) (“civil detainee” is not a “prisoner” 13 within the meaning of the PLRA). 14 Here, Plaintiff alleges that he is “‘civilly’ detained under the authority of 15 Immigration & Customs Enforcement (“ICE”)” at IRDF, where he has been “incarcerated 16 the past three years pending removal proceedings.” (Compl. ¶ 1.) Accordingly, Plaintiff 17 is not a “prisoner” under the PLRA, and the filing fee provisions of 28 U.S.C. § 1915 (b) 18 are inapplicable to this case. See Agyeman, 296 F.3d at 886 . Therefore, the Court need 19 only review Plaintiff’s affidavit of assets, just as it would for any other non-prisoner litigant 20 seeking IFP status. 21 Plaintiff attests he is entirely destitute. He avers that he is unemployed, does not 22 receive money from any source, does not have a savings or checking account, does not own 23 any assets of value, such as real estate, an automobile, or other similar items, and has been 24 in ICE custody at IRDF for the past three years. (IFP Mot. at 1–3; see Compl. ¶ 1.) 25 Accordingly, the Court concludes Plaintiff has established he is unable to pay the fees or 26 post the securities required to maintain a civil action and, thus, GRANTS the IFP Motion. 27 See S.D. Cal. Civ. L.R. 3.2(d). [28] 1 II. SCREENING PURSUANT TO 28 U.S.C. § 1915 (e)(2)(B) 2 A. Standard of Review 3 A complaint filed by any person proceeding IFP is subject to sua sponte dismissal if 4 it is “frivolous, malicious, fail[s] to state a claim upon which relief may be granted, or 5 seek[s] monetary relief from a defendant immune from such relief.” 28 U.S.C. 6 § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding 7 that “the provisions of 28 U.S.C. § 1915 (e)(2)(B) are not limited to prisoners”); Lopez v. 8 Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits, 9 but requires a district court to dismiss an in forma pauperis complaint that fails to state a 10 claim.”). “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious 11 suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903 , 920 12 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680 , 681 13 (7th Cir. 2012)). 14 “The standard for determining whether a plaintiff has failed to state a claim upon 15 which relief can be granted under 28 U.S.C. [§ 1915(e)(2)(B)] is the same as the Federal 16 Rule of Civil Procedure [(“Rule”)] 12(b)(6) standard for failure to state a claim.” Watison 17 v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113 , 18 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar 19 standard applied in the context of failure to state a claim under Federal Rule of Civil 20 Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual 21 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 22 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 23 1121. “Determining whether a complaint states a plausible claim for relief [is] . . . a 24 context-specific task that requires the reviewing court to draw on its judicial experience 25 and common sense.” Iqbal, 556 U.S. at 678 . The “mere possibility of misconduct” or 26 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this 27 plausibility standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 28 2009). 1 While the court “ha[s] an obligation where the petitioner is pro se, particularly in 2 civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit 3 of any doubt,” Hebbe v. Pliler, 627 F.3d 338 , 342 & n.7 (9th Cir. 2010) (citing Bretz v. 4 Kelman, 773 F.2d 1026 , 1027 n.1 (9th Cir. 1985)), it may not “supply essential elements 5 of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 6 F.2d 266 , 268 (9th Cir. 1982). 7 B. Plaintiff’s Allegations2 8 On April 1, 2020, Plaintiff, along with other detainees at IRDF, began a hunger strike 9 in protest of the facility’s “lack of precautionary measures relative to the COVID-19 10 pandemic.” (Compl. ¶ 32.) Later that morning, staff ordered an emergency lockdown. 11 (See id.) While Plaintiff was waiting for the lockdown to be lifted, he was physically 12 removed from his cell, had mechanical restraints applied to him, and was placed in the 13 facility’s “solitary confinement unit under fabricated charges of threats against staff and 14 inciting others to riot.” (Id. ¶ 33.) Plaintiff was later told these charges were based upon 15 the “accusations of two confidential sources.” (Id. ¶ 35.) IRDF personnel issued an 16 Investigative Report and Incident Report detailing the bases of these charges. (See id. 17 ¶ 41; see also Memorandum of Facility Administrator Sixto Marrero (“Marrero Memo.”), 18 Ex. E to Compl., ECF No. 1-6 (indicating “Sgt. Samantha Nelson” had prepared an 19 Investigative Report” laying out charges proposed against Plaintiff).) 20 On April 3, 2020, a hearing was held with respect to the charges levied against 21 Plaintiff. (See Compl. ¶ 45.) Following that hearing, and based upon its review of the 22 Incident Report and Investigative Report, IRDF’s Institution Disciplinary Panel (“IDP”) 23 concluded in a written report that “[n]o prohibited act was committed” and that 24 “‘[e]vidence [was] not enough to support [the] charges’ against Plaintiff.” (Compl. ¶ 45 25 (citing Hearing Report, Ex. D to Compl., ECF No. 1-5).) Nevertheless, citing the [26] 27 2 These allegations all are taken from the Complaint. (ECF No. 1.) For this § 1915A screening, the Court accepts as true all of Plaintiffs’ factual allegations. See Safe Air for Everyone v. Meyer, 373 [28] 1 Investigative Report, Marrero overruled the IDP’s determination and imposed a sanction 2 of “30 days of disciplinary detention” on April 6, 2020. (See Marrero Memo.; Compl. ¶ 3 46.) 4 Plaintiff filed a grievance on April 15, 2020, challenging the sufficiency of the 5 evidence upon which the charges against him were premised. (See Compl. ¶ 47.) However, 6 his grievance was denied; Plaintiff alleges that in the document denying his grievance, the 7 assistant facility administrator “added untruthful uncorroborated details” not present in the 8 record. (See id.) Plaintiff attempted to file another grievance directly with ICE, but ICE 9 refused to “investigate, review [or] adjudicate Plaintiff’s grievance.” (Id. ¶¶ 49–52.) 10 Plaintiff alleges that the actions taken by IRDF officials against him constitute 11 “intentional tortious actions of assault, false imprisonment, and intentional infliction of 12 emotional pain.” (Compl. ¶ 53.) He alleges that he suffered “injuries, including physical 13 pain, emotional distress, physiological trauma, and mental deterioration” as a result of his 14 allegedly unwarranted segregated confinement. (Id. ¶ 54.) He brings this action against 15 the United States only, seeking compensatory damages in the amount of $3,000,000. (See 16 id.) 17 C. Analysis 18 The FTCA waives the United States’ sovereign immunity for claims arising out of 19 common law torts committed by federal employees. See United States v. Olson, 546 U.S. 20 43, 44 (2005). It “authorizes private tort actions against the United States ‘under 21 circumstances where the United States, if a private person, would be liable to the claimant 22 in accordance with the law of the place where the act or omission occurred.’” Id. (quoting [23] 28 U.S.C. § 1346 (b)(1)). 24 The FTCA explicitly prohibits claims “arising out of” an intentional tort, including 25 claims of false imprisonment and assault See 28 U.S.C. § 2680 (h). However, that 26 limitation does not apply where, as here, the alleged perpetrator appears to be “a federal 27 investigative or law enforcement officer.” Black v. United States, No. C13-541RBL, 2013 [28] 1 WL 5214189 , at *2 (W.D. Wash. Sept. 17, 2013). See also Millbrook v. United States, [2] 568 U.S. 50, 57 (2013) (“The waiver effected by the law enforcement proviso extends to 3 acts or omissions of law enforcement officers that arise within the scope of their 4 employment, regardless of whether the officers are engaged in investigative or law 5 enforcement activity, or are executing a search, seizing evidence, or making an arrest.”). 6 Plaintiff’s allegations of wrongdoing in the Complaint sound principally in false 7 imprisonment. (See Compl. ¶¶ 45–46 (alleging Plaintiff was disciplined with 30-days in 8 segregated confinement despite being acquitted of the charges for which he was 9 disciplined).) Under California law, “[t]he tort of false imprisonment is the nonconsensual, 10 intentional confinement of a person, without lawful privilege, for an appreciable length of 11 time, however short.” Castro v. City of Hanford, 546 F. Supp. 2d 822, n.2 (E.D. Cal. Mar. 12 3, 2008) (citing City of Newport Beach v. Sasse, 9 Cal. App. 3d 803, 810 (1970)). Here, 13 Plaintiff alleges that he was placed in segregated disciplinary confinement for inciting a 14 riot and threatening an IRDF staff member with bodily harm, even though he was found 15 innocent of those charges following a hearing and review of the relevant reports by the 16 IDP. (Compl. ¶¶ 45–46.) He alleges that he served a 30-day sentence, during which he 17 was “housed in a cell by himself where he spent twenty-three hours a day and where 18 shackles and restraints w[ere] used on him every time he departed his cell,” and that he [20] 3 Plaintiff avers that the perpetrators of the intentional torts forming the premise of this action 21 include Marrero, IRDF’s facility administrator, and facility security staff. (See Compl. ¶ 33, 46.) Although the issue is not a settled one, prison officials and staff “appear to qualify as law enforcement 22 officers within the meaning of the FTCA.” James E. Pfander, Dicey’s Nightmare: An Essay on the Rule of Law, 107 Cal. L. R. 737, 778 n.213 (June 2019) (citing Millbrook, 568 U.S. at 55 n.3); see also Chapa 23 v. U.S. Dep’t of Justice, 339 F.3d 388, 390 (5th Cir. 2003) (treating prison guards as law enforcement officers for purposes of the intentional torts proviso). [24] That Plaintiff alleges IRDF is operated under contract with ICE by a “private corporation,” 25 Management and Training Corporation (“MTC”), and that the perpetrators of the intentional torts were “private facility operators” (see, e.g., Compl. ¶ 1) does not appear to render FTCA’s law enforcement 26 proviso inapplicable here. See Agyeman, 390 F.3d at 1103–04 (opining that plaintiff, who was allegedly assaulted and unlawfully restrained while held at an ICE detention facility operated by a private prisoner, 27 “could have brought a suit against the United States under the Federal Tort Claims Act,” as opposed to a Bivens suit against the private corporation itself); see also Manriquez v. Huchins, No. 1:09-cv-0045628 1 suffered physical and emotional harm as a result. (Id. ¶¶ 3, 54.) These allegations are 2 sufficient to form the basis of a false imprisonment claim robust enough to satisfy the “low 3 threshold” for sua sponte screening, as required by 28 U.S.C. §§ 1915 (e)(2) and 1915A(b). 4 See Millbrook, 569 U.S. at 57; Wilhelm, 680 F.3d at 1123 ; Iqbal, 556 U.S. at 678 . 5 * * * * 6 The Court observes that in July of 2020 Plaintiff brought an action in this district 7 based on virtually the same facts as the instant action. See Juan Sanchez-Rivera v. Jorge 8 Bribiesca, et al., 3:20-cv-1264-MMA-MSB (“Sanchez-Rivera I”).4 Crucially, Sanchez9 Rivera I was brought against ICE officials and MTC employees pursuant to Bivens v. Six 10 Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (“Bivens”), 11 as opposed to pursuant to the FTCA. United States District Judge Michael M. Anello 12 dismissed Sanchez-Rivera I, sua sponte, for failing to allege facts adequate to invoke the 13 requirements of a Bivens action. See Sanchez-Rivera I, ECF Nos. 5, 7.5 The reasons for 14 dismissal of Plaintiff’s Bivens claims in Sanchez-Rivera I do not bear upon whether 15 Plaintiff has adequately alleged an FTCA claim. Therefore, the Court will not dismiss this 16 action as duplicative. 17 III. Conclusion 18 Based on the foregoing, the Court: 19 1. GRANTS Plaintiff’s IFP Motion pursuant to 28 U.S.C. § 1915 (a) (ECF No. 20 2). 21 2. DIRECTS the Clerk of the Court to issue a summons as to Plaintiff’s 22 Complaint (ECF No. 1) upon Defendant the UNITED STATES OF AMERICA and 23 forward it to Plaintiff. Because Plaintiff is suing the United States, he must serve 24 Defendant in accordance with Rule 4(i). See Fed. R. Civ. P. 4(i)(1). The Clerk is further [25] 26 4 A court “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” Bias v. Moynihan, 508 F.3d 27 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801 , 803 n.2 (9th Cir. 2002)). 5 Plaintiff subsequently filed an appeal to the United States Court of Appeals for the Ninth Circuit, [28] 1 directed to include in Plaintiff’s IFP package two separate copies of this Order, Plaintiff’s 2 Complaint (ECF No. 1), the summons, and two blank USM Form 285s for Plaintiff’s use 3 in serving the United States via the United States Attorney for the Southern District of 4 California and the Attorney General of the United States in Washington, D.C. See Fed. R. 5 Civ. P. 4(i)(1)(A)(i). Upon receipt of this “IFP Package,” Plaintiff must complete the Form 6 285s as completely and accurately as possible, include addresses where the Defendant may 7 be served, see S.D. Cal. Civ. L.R. 4.1.c, and return them to the United States Marshal 8 according to the instructions the Clerk provides in the letter accompanying his IFP package, 9 by no later than September 30, 2022. 10 3. ORDERS the U.S. Marshal or deputy marshal to serve a copy of the 11 Complaint and summons upon Defendant the UNITED STATES OF AMERICA as 12 directed by Plaintiff on the USM Form 285s provided to him upon receipt, and in no case 13 later than November 30, 2022. The U.S. Marshal or deputy marshal must immediately 14 thereafter file proof of that service, or proof of his or her inability to execute service, with 15 the Clerk of the Court. All costs of that service will be advanced by the United States. See [16] 28 U.S.C. § 1915 (d); Fed. R. Civ. P. 4(c)(3). 17 4. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 18 serve upon Defendant the UNITED STATES OF AMERICA, or, if appearance has been 19 entered by counsel, upon Defendant’s counsel, a copy of every further pleading, motion, 20 or other document submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). 21 Plaintiff must include with every original document he seeks to file with the Clerk of the 22 Court a Certificate of Service stating the manner in which a true and correct copy of that 23 document was served on Defendant or its counsel, and the date of that service. See S.D. 24 Cal. Civ. L.R. 5.2. Any document received by the Court which has not been properly filed 25 // 26 // 27 // 28 // 1 || with the Clerk, or which fails to include a Certificate of Service upon the Defendants, may 2 || be disregarded. 3 IT IS SO ORDERED. 4 A 5 || DATED: September 6, 2022 Ypilag (Lyohaa é 6 United States District Judge [28] ~10-2