De La Torre Quiles v. USA et al

Filing 4

ORDER signed by Magistrate Judge Kendall J. Newman on 04/13/15 ORDERING that the 2 Motion to Proceed IFP is GRANTED; plaintiff's Complaint is DISMISSED with leave to amend; amended complaint due within 28 days. (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALBERTO DE LA TORRE QUILES,

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Plaintiff,

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No. 2:15-cv-0489-KJM-KJN PS

ORDER

v.
UNITED STATES OF AMERICA, et al.,

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Defendants.

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Plaintiff Alberto De La Torre Quiles, who is proceeding without counsel in this action,

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has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.1 (ECF No. 2.)

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Plaintiff’s application in support of his request to proceed in forma pauperis makes the showing

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required by 28 U.S.C. § 1915(a)(1). Accordingly, the undersigned grants plaintiff’s request to

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proceed in forma pauperis.
The determination that plaintiff may proceed in forma pauperis does not complete the

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required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at

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any time if it determines that the allegation of poverty is untrue, or if the action is frivolous or

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malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against

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an immune defendant.

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This action proceeds before the undersigned pursuant to Eastern District of California
Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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To avoid dismissal for failure to state a claim, a complaint must contain more than “naked
assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of

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action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim

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upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570.

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“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129

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S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can be

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granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200

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(2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v.

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Rhodes, 416 U.S. 232, 236 (1974).

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Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21

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(1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear

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that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma

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pauperis is entitled to notice and an opportunity to amend before dismissal. See Noll v. Carlson,

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809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230.

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Construing the complaint liberally, plaintiff appears to allege that he has been unlawfully

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followed by unspecified law enforcement officers since 1996. (ECF No. 1 at 1.) Plaintiff claims

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that he is “harassed constantly” wherever he stays and that he is “being discriminated against and

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would like it to stop.” (Id.) Plaintiff names the United States of America (“United States”) and
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the “Federal Police” as defendants to this action. (ECF No. 1-1.) Attached to plaintiff’s

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complaint is a Civil Cover Sheet form in which plaintiff describes the nature of this lawsuit as a

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“civil rights” action. (Id.) Based on plaintiff’s characterization, it would appear that plaintiff

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attempts to allege a claim against the United States under the Federal Tort Claims Act (“FTCA”)

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and an unspecified constitutional claim against the “Federal Police” pursuant to Bivens v. Six

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Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 421 (1971).

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The vague and conclusory allegations asserted in the complaint, however, do not provide

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defendants or the court with sufficient notice of what plaintiff’s claims are, and do not contain

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sufficient facts which, if accepted as true, would allow the court to draw the reasonable inference

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that defendants are liable for the misconduct alleged. Plaintiff fails to specify what claims he

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seeks to assert against each named defendant, the defendants’ respective actions that constituted

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the alleged discrimination and harassment directed towards plaintiff, or the remedy plaintiff seeks

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for these alleged wrongs. Accordingly, plaintiff’s complaint is dismissed, but with leave to

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amend.

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Furthermore, to the extent plaintiff seeks to assert a claim under the FTCA against the

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United States, the complaint fails to provide allegations indicating that plaintiff exhausted his

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administrative remedies prior to initiating this lawsuit. Generally, before an FTCA claim may be

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filed against the United States in federal court, a plaintiff must first present an administrative

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claim to the appropriate federal agency and have that claim denied. 28 U.S.C. § 2675; Gillespie

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v. Civiletti, 629 F.2d 637, 640 (9th Cir.1980) (citing 28 U.S.C. § 2675) (“The timely filing of an

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administrative claim is a jurisdictional prerequisite to the bringing of a suit under the FTCA.”).

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Consequently, a plaintiff asserting an FTCA claim in federal court must allege facts in the

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complaint indicating that he filed an administrative claim with the appropriate federal agency and

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that the claim was denied prior to filing his complaint in federal court. Because plaintiff provides

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no such allegation in his complaint, his claim against the United States is defective for this

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additional reason. Accordingly, should plaintiff choose to file an amended complaint, he should

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also include allegations indicating whether he first presented a timely administrative claim to an

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appropriate federal law enforcement agency and that the claim was denied prior to filing the
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current lawsuit.
Finally, to the extent plaintiff names the “Federal Police” as a defendant in an attempt to

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name a federal law enforcement agency such as the Federal Bureau of Investigation as a

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defendant to this action, such a claim is necessarily barred by law because a plaintiff cannot bring

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a Bivens claim directly against a federal agency; only the individual federal agents that

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committed the alleged violation may be held liable under Bivens. FDIC v. Meyer, 510 U.S. 471,

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473, 486 (1994). Similarly, plaintiff cannot assert a claim under the FTCA against a federal

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agency. F.D.I.C. v. Craft, 157 F.3d 697, 706 (9th Cir. 1998) (“[The FTCA] only allows claims

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against the United States . . . an agency itself cannot be sued under the FTCA.”). However, when

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the complaint’s allegations are construed in a light most favorable to plaintiff, it is possible that

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plaintiff named “Federal Police” as a defendant in an attempt to name the individual federal law

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enforcement officers who allegedly caused plaintiff’s injuries. Because of this possibility, the

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court will grant plaintiff leave to amend with respect to this defendant at this juncture despite the

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court’s doubts as to whether plaintiff could pursue any cognizable claims against this defendant.
If plaintiff elects to file an amended complaint, it shall be captioned “First Amended

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Complaint”; shall be no longer than 20 pages; shall correct the deficiencies outlined in this order;

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and shall be filed within 28 days of this order.

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Plaintiff is informed that the court cannot refer to a prior complaint or other filing in order

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to make plaintiff’s first amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. As a general rule, an

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amended complaint supersedes the original complaint, and once the first amended complaint is

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filed, the original complaint no longer serves any function in the case.

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Finally, nothing in this order requires plaintiff to file a first amended complaint. If

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plaintiff determines that he is unable to amend his complaint in compliance with the court’s order

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at this juncture, he may alternatively file a notice of voluntary dismissal of his claims without

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prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) within 28 days of this order.

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Accordingly, for the reasons outlined above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiff’s complaint is dismissed, but with leave to amend.

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3. Within 28 days of this order, plaintiff shall file either a first amended complaint in

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compliance with this order, or a notice of voluntary dismissal of the action without

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prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).

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4. Failure to file either a first amended complaint in compliance with this order or a

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notice of voluntary dismissal by the required deadline may result in a recommendation

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that the action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure

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41(b).
IT IS SO ORDERED.
Dated: April 13, 2015

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