Zaldivar #166954 v. United States Department of Veterans Affairs et al

Filing 9

ORDER (Service Packet) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 2 ) is granted. As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is assessed an ini tial partial filing fee of $35.83. The Motion to Appoint Counsel (Doc. 4 .) is denied without prejudice. The Motion for Clarification and Status of the Case (Doc. 8 ) is granted insofar as this Order informs Plaintiff of the status of this cas e. Count Three is dismissed. Defendant Pima County is dismissed. Defendants Veterans Affairs Regional Office-Phoenix, Veterans Affairs Office of General Counsel, and Veterans Affairs Office of the Inspector General must answer Counts One and Two of t he Complaint. The Clerk of Court must send Plaintiff a service packet including the Complaint (Doc. 1 ), this Order, and summons forms for Defendants Veterans Affairs Regional Office-Phoenix, Veterans Affairs Office of General Counsel, Veterans Affa irs Office of the Inspector General, and the United States of America. Plaintiff must complete and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. This matter is referred to Magistrate Judge Mark E. Aspey pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). Signed by Judge David G Campbell on 12/24/2014. (KMG)

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1 2 SH WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jose Adalberto Zaldivar, 10 11 12 13 No. CV 14-1493-PHX-DGC (MEA) Plaintiff, v. ORDER United States Department of Veterans Affairs, et al., 14 Defendants. 15 Plaintiff Jose Adalberto Zaldivar, Sr., who is confined in the Arizona State Prison 16 17 18 19 20 21 22 23 24 25 26 27 28 Complex, Eyman, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. §§ 1981, 1982, 1983, 1985, and 1986, as well as Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Freedom of Information Act (“FOIA”), 5 U.S.C. §522, et seq., (Doc. 1). Plaintiff has also filed an Application to Proceed In Forma Pauperis (Doc. 2), a Motion to Appoint Counsel (Doc. 4), and a Motion for Clarification and Status of the Case (Doc. 8). The Court will deny the Motion to Appoint Counsel without prejudice and grant the Motion for Clarification. The Court will require Defendants Veterans Affairs Regional Office-Phoenix, Veterans Affairs Office of General Counsel, and Veterans Affairs Office of the Inspector General to answer Counts One and Two of the Complaint. All other claims and defendants are dismissed without prejudice. .... .... TERMPSREF 1 I. Application to Proceed In Forma Pauperis and Filing Fee 2 Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. 3 § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). 4 The Court will assess an initial partial filing fee of $35.83. The remainder of the fee will 5 be collected monthly in payments of 20% of the previous month’s income credited to 6 Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 U.S.C. 7 § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government 8 agency to collect and forward the fees according to the statutory formula. 9 II. Statutory Screening of Prisoner Complaints 10 The Court is required to screen complaints brought by prisoners seeking relief 11 against a governmental entity or an officer or an employee of a governmental entity. 28 12 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 13 has raised claims that are legally frivolous or malicious, that fail to state a claim upon 14 which relief may be granted, or that seek monetary relief from a defendant who is 15 immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2). 16 A pleading must contain a “short and plain statement of the claim showing that the 17 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 18 does not demand detailed factual allegations, “it demands more than an unadorned, the- 19 defendant-unlawfully-harmed-me accusation.” 20 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 21 conclusory statements, do not suffice.” Id. Ashcroft v. Iqbal, 556 U.S. 662, 678 22 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 23 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 24 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual 25 content that allows the court to draw the reasonable inference that the defendant is liable 26 for the misconduct alleged.” Id. “Determining whether a complaint states a plausible 27 claim for relief [is] . . . a context-specific task that requires the reviewing court to draw 28 on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s TERMPSREF -2- 1 specific factual allegations may be consistent with a constitutional claim, a court must 2 assess whether there are other “more likely explanations” for a defendant’s conduct. Id. 3 at 681. 4 But as the United States Court of Appeals for the Ninth Circuit has instructed, 5 courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 6 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less 7 stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. 8 Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 9 If the Court determines that a pleading could be cured by the allegation of other 10 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 11 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 12 Plaintiff’s Complaint will be dismissed for failure to state a claim, but because it may 13 possibly be amended to state a claim, the Court will dismiss it with leave to amend. 14 III. Complaint 15 In his three-count Complaint, Plaintiff sues the Veterans Affairs Regional Office- 16 Phoenix (“VARO”), the Department of Veterans Affairs Office of General Counsel 17 (“OGC”), the Department of Veterans Affairs Office of the Inspector General (“OIG”), 18 and Pima County. 19 In Count One, Plaintiff makes the following allegations: On October 20, 2002, 20 Plaintiff submitted a FOIA request to the VARO, asking for copies of statements and 21 letters filed by Rebecca Zaldivar—Plaintiff’s ex-wife—against Plaintiff in his veteran 22 compensation file. On November 16, 2002, the VARO provided Plaintiff “copies of the 23 documents to and from” Rebecca Zaldivar. Plaintiff alleges that personal information 24 had been redacted from some of the documents he received and other documents were 25 missing their corresponding attachments. 26 On April 13, 2005, Plaintiff submitted a second FOIA request to VARO asking for 27 the missing attachments and for a “copy of a VA letter dated January 6, 2005” that 28 Plaintiff had never received from the Department of Veterans Affairs (“VA”). TERMPSREF -3- On 1 April 22, 2005, the VARO “provided four (4) additional copies of [the] documents 2 submitted by Rebecca Zaldivar since November 2002, redacting addresses and personal 3 information.” The VARO also “included [a] copy of the letter dated January 6, 2005.” 4 On July 10, 2007, Plaintiff filed a third FOIA request, seeking various documents 5 submitted to the VA by Rebecca Zaldivar and the VA’s responses to Rebecca Zaldivar’s 6 inquiries or requests concerning Plaintiff’s VA file. On September 25, 2007, the VARO 7 provided Plaintiff 17 sets of documents, but noted that personal information contained in 8 the documents had been redacted. 9 On December 20, 2007, Plaintiff filed a FOIA appeal, alleging that the VARO had 10 denied Plaintiff access to certain documents. The VARO responded that they had given 11 Plaintiff the documents he requested and that the only information redacted from the 12 documents was Rebecca Zaldivar’s personal information. 13 releasing Rebecca Zaldivar’s personal identifying information would constitute an 14 “unwarranted invasion of personal privacy[.]” The VARO stated that 15 On February 14, 2008, Plaintiff appealed this decision to the OGC, claiming that 16 the VARO’s denial of this information “hampers Plaintiff’s right to a fair trial” and that 17 disclosing the redacted information would not invade his ex-wife’s privacy because “the 18 information in Plaintiff’s files contain documents submitted on Plaintiff’s behalf by a 19 former spouse during the marriage[.]” 20 submitted the documents [that contain her personal information] on [Plaintiff’s] claim file 21 and in support of and/or [on Plaintiff’s] behalf during [their] marriage.” On August 4, 22 2010, OGC responded to Plaintiff’s appeal, noting that Plaintiff seemed to be appealing 23 two separate issues: the redaction of his ex-wife’s personal information and Plaintiff’s 24 assertion that the VARO has failed to provide him with a claim submitted by his ex-wife 25 on October 1, 2001. The OGC ultimately denied Plaintiff’s appeal after determining that 26 releasing his ex-wife’s personal information would constitute an invasion of privacy and 27 that the October 1, 2001 document sought by Plaintiff was never received by the VA and 28 was not in Plaintiff’s file. TERMPSREF Plaintiff claims that his ex-wife “willingly -4- 1 On April 26, 2012, Plaintiff submitted a fourth FOIA request, this time asking for 2 the following documents: application for apportionment to support Plaintiff’s dependent 3 spouse; a VA letter dated April 3, 2012, stating that Plaintiff’s ex-wife is entitled to 4 benefits; “correspondence in response and reply to the application [for] apportionment”; 5 “complete address of the VA Office of [the] Inspector General”; “notes, telephone calls, 6 and inquir[i]es [related] to the application for apportionment”; [a]ny and all 7 documentation, application, inquiry or requests, made by letter or phone conversation, in 8 connection with Plaintiff’s VA compensation claim to include the names, addresses and 9 phone numbers of the requesting party or parties involved, after Feb[ruary] 16, 2001”; a 10 list of names and contact information “of benefits payable claimed by surviving spouses, 11 dependent spouses and children entitled to dependency and i[n]dem[n]ity compensation 12 (DIC).” 13 After receiving no response to his fourth FOIA request, on June 4, 2012, Plaintiff 14 filed another FOIA appeal with the VARO. On June 21, 2012, Plaintiff received a copy 15 of his entire claim folder except his “service treatment records” which, according to the 16 VARO, had already been provided to Plaintiff on November 10, 2011. 17 On May 15, 2013, Plaintiff filed a complaint with the OIG pursuant to 38 C.F.R. 18 § 42, the “Standards Implementing the Program Fraud Civil Remedies Act of 1986.” 19 Plaintiff’s filed the complaint against his ex-wife for making false statements to the 20 VARO. On June 27, 2013, after reviewing Plaintiff’s complaint, the OIG found that a 21 formal investigation was not required. Plaintiff filed a written “Notice of disagreement” 22 on July 18, 2013, which Plaintiff intended to “serve[] as a motion for reconsideration” or 23 as a “notice of appeal” if there was “no right to the motion for reconsideration.” To date, 24 Plaintiff has not received a response. 25 In Count Two, Plaintiff claims that he submitted a FOIA request for copies of 26 various communications between Rebecca Zaldivar and the VA on May 20, 2013. 27 Plaintiff did not receive a response to his request and filed an appeal on July 15, 2013. 28 .... TERMPSREF -5- 1 In Count Three, Plaintiff claims that on June 4, 2013, he filed a FOIA request for 2 “the continuous supply of documents, affidavits, [and] current and future applications of 3 any form or standard application” as well as “correspondence and response, inquiry or 4 requests in reference to or connected to Plaintiff’s claim file, requested or submitted by 5 Rebecca Joan Zaldivar previously not supplied without having to make future request[s].” 6 Plaintiff did not receive a response to his request, and filed a FOIA appeal on July 15, 7 2013. 8 9 10 11 Plaintiff seeks declaratory and injunctive relief. IV. Failure to State a Claim A. Claims 1. Claims Under §§ 1981, 1982, 1985, and 1986 12 Plaintiff has indicated that this Court’s jurisdiction is based, in part, on 42 U.S.C. 13 §§ 1981, 1982, 1985, and 9816. The Complaint does not contain any allegations of race- 14 based discrimination and fails to allege sufficient facts to suggest a meeting of the minds 15 to support a conspiracy claim. Accordingly, to the extent Plaintiff is attempting to bring 16 claims under §§ 1981, 1982, 1985, and 1986, such claims are dismissed. 17 2. Claims Under § 1983 18 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 19 (2) under color of state law (3) deprived him of federal rights, privileges or immunities 20 and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th 21 Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 22 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific 23 injury as a result of the conduct of a particular defendant and he must allege an 24 affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 25 423 U.S. 362, 371-72, 377 (1976). 26 Plaintiff fails to state a claim against Defendant Pima County. A municipality 27 cannot be held liable unless its “policy or custom caused the constitutional injury.” See 28 Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U .S. TERMPSREF -6- 1 163, 166 (1993). Thus, a municipality may not be sued solely because an injury was 2 inflicted by one of its employees or agents. Long v. County of Los Angeles, 442 F.3d 3 1178, 1185 (9th Cir. 2006). Rather, the municipality is liable only when the execution of 4 its policy or custom inflicts the constitutional injury. Id. Thus, a § 1983 claim against a 5 municipal defendant “cannot succeed as a matter of law” unless the plaintiff: (1) contends 6 that the municipal defendant maintains a policy or custom pertinent to the plaintiff's 7 alleged injury; and (2) explains how such policy or custom caused the plaintiff's injury. 8 See Sadoski v. Mosley, 435 F.3d 1076, 1080 (9th Cir. 2006) (affirming dismissal of a 9 municipal defendant pursuant to Fed. R. Civ. P. 12(b)(6)). Plaintiff’s claim fails because 10 he has not alleged that he sustained a constitutional injury as the result of an official 11 policy or custom of Defendant Pima County. Further, Plaintiff may not sue defendants 12 VARO, OGC, and OIG under § 1983 because they are not state actors. For the foregoing 13 reasons, the Court will dismiss Plaintiff’s § 1983 claim. 14 3. Bivens Claim 15 Plaintiff also purports to bring this civil action pursuant to Bivens. Sovereign 16 immunity prevents Bivens actions against the United States, its agencies, or its employees 17 in their official capacities. Arnsberg v. United States, 757 F.2d 971, 980 (9th Cir. 1984); 18 Holloman v. Watt, 708 F.2d 1399, 1401-02 (9th Cir. 1983). Further, Bivens claims can 19 only be brought against federal actors. Because all of the named Defendants are either 20 federal or state agencies, the Court will dismiss Plaintiff’s Bivens claim. 21 4. Count Three 22 In Count Three of the Complaint, Plaintiff claims that he filed a FOIA request 23 with the VARO to continuously receive copies of any future documents submitted by his 24 ex-wife with respect to his VA claim file, so that Plaintiff will not “hav[e] to make future 25 request[s].” Such an open-ended request is not permissible under FOIA. See Marks v. 26 United States, 578 F.2d 261, 263 (9th Cir. 1978) (Recognizing “that broad, sweeping 27 requests lacking specificity are not permissible” under FOIA). Accordingly, Count Three 28 will be dismissed. TERMPSREF -7- 1 B. 2 Defendants 1. Pima County 3 To the extent that Plaintiff asserts a FOIA claim against Pima County, he fails to 4 state a claim. FOIA applies to federal agencies and does not apply to Pima County or 5 other state agencies or departments. See Moore v. United Kingdom, 384 F.3d 1079, 1098 6 (9th Cir. 2004) (“FOIA applies only to agencies of the executive branch of the United 7 States government.”); St. Michael’s Convalescent Hosp. v. California, 643 F.2d 1369, 8 1373-74 (9th Cir. 1981) (FOIA claims not applicable to state agencies or state 9 employees). Accordingly, to the extent Plaintiff seeks remedies under FOIA against 10 Defendant Pima County, that claim will be dismissed. Because Plaintiff has failed to 11 state a claim against Pima County in the Complaint, the Court will dismiss Defendant 12 Pima County from this case. 13 V. Claims for Which an Answer Will be Required 14 Liberally construed, Plaintiff has adequately stated a FOIA claim against 15 defendants VARO, OGC, and OIG in Counts One and Two of the Complaint, and the 16 Court will require those defendants to answer Counts One and Two. 17 VI. Motion to Appoint Counsel 18 There is no constitutional right to the appointment of counsel in a civil case. See 19 Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In 20 proceedings in forma pauperis, the court may request an attorney to represent any person 21 unable to afford one. 28 U.S.C. § 1915(e)(1). Appointment of counsel under 28 U.S.C. 22 § 1915(e)(1) is required only when “exceptional circumstances” are present. Terrell v. 23 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 24 exceptional circumstances requires an evaluation of the likelihood of success on the 25 merits as well as the ability of Plaintiff to articulate his claims pro se in light of the 26 complexity of the legal issue involved. Id. “Neither of these factors is dispositive and 27 both must be viewed together before reaching a decision.” Id. (quoting Wilborn v. 28 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). TERMPSREF -8- A determination with respect to 1 Having considered both elements, it does not appear at this time that exceptional 2 circumstances are present that would require the appointment of counsel in this case. 3 Plaintiff is in no different position than many pro se prisoner litigants. Thus, the Court 4 will deny without prejudice Plaintiff’s Motion for Appointment of Counsel. 5 VII. Warnings 6 A. 7 If Plaintiff is released while this case remains pending, and the filing fee has not 8 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 9 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 10 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 11 result in dismissal of this action. Release 12 B. 13 Plaintiff must file and serve a notice of a change of address in accordance with 14 Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion 15 for other relief with a notice of change of address. Failure to comply may result in 16 dismissal of this action. Address Changes 17 C. 18 Because Plaintiff is currently confined in an Arizona Department of Corrections 19 unit subject to General Order 14-17, Petitioner is not required to serve Defendants with a 20 copy of every document he files or to submit an additional copy of every filing for use by 21 the Court, as would ordinarily be required by Federal Rule of Civil Procedure 5 and 22 Local Rule of Civil Procedure 5.4. If Plaintiff is transferred to a unit other than one 23 subject to General Order 14-17, he will be notified of the requirements for service and 24 copies for the Court that are required for inmates whose cases are not subject to General 25 Order 14-17. Copies 26 D. 27 If Plaintiff fails to timely comply with every provision of this Order, including 28 these warnings, the Court may dismiss this action without further notice. See Ferdik v. TERMPSREF Possible Dismissal -9- 1 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action 2 for failure to comply with any order of the Court). 3 IT IS ORDERED: 4 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 5 (2) As required by the accompanying Order to the appropriate government 6 agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing 7 fee of $35.83. 8 (3) The Motion to Appoint Counsel (Doc. 4.) is denied without prejudice. 9 (4) The Motion for Clarification and Status of the Case (Doc. 8) is granted 10 insofar as this Order informs Plaintiff of the status of this case. 11 (5) Count Three is dismissed. 12 (6) Defendant Pima County is dismissed. 13 (7) Defendants Veterans Affairs Regional Office-Phoenix, Veterans Affairs 14 Office of General Counsel, and Veterans Affairs Office of the Inspector General must 15 answer Counts One and Two of the Complaint. 16 (8) The Clerk of Court must send Plaintiff a service packet including the 17 Complaint (Doc. 1), this Order, and summons forms for Defendants Veterans Affairs 18 Regional Office-Phoenix, Veterans Affairs Office of General Counsel, Veterans Affairs 19 Office of the Inspector General, and the United States of America. 20 (9) Plaintiff must complete and return the service packet to the Clerk of Court 21 within 21 days of the date of filing of this Order. The United States Marshal will not 22 provide service of process if Plaintiff fails to comply with this Order. 23 (10) If Plaintiff does not complete service of the Summons and Complaint on a 24 Defendant within 120 days of the filing of the Complaint or within 60 days of the filing 25 of this Order, whichever is later, the action may be dismissed as to each Defendant not 26 served. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii). 27 28 TERMPSREF (11) The United States Marshal must retain the Summons, a copy of the Complaint, and a copy of this Order for future use. - 10 - 1 (12) The United States Marshal must send by certified mail a copy of the 2 Summons for each Defendant, the Summons for the United States, the Complaint, and 3 this Order to (1) the civil process clerk at the office of the United States Attorney for the 4 District of Arizona and (2) the Attorney General of the United States, pursuant to Rule 5 4(i)(1) of the Federal Rules of Civil Procedure. 6 (13) Defendants must answer the Complaint or otherwise respond by 7 appropriate motion within the time provided by the applicable provisions of Rule 12(a) of 8 the Federal Rules of Civil Procedure. 9 (14) Any answer or response must state the specific Defendant by name on 10 whose behalf it is filed. The Court may strike any answer, response, or other motion or 11 paper that does not identify the specific Defendant by name on whose behalf it is filed. 12 (15) This matter is referred to Magistrate Judge Mark E. Aspey pursuant to 13 Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 14 authorized under 28 U.S.C. § 636(b)(1). 15 Dated this 24th day of December, 2014. 16 17 18 19 20 21 22 23 24 25 26 27 28 TERMPSREF - 11 -

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