Rojas-Vega v. Cejka et al

Filing 28

ORDER Sua Sponte Dismissing Third Amended Complaint without Leave to Amend for Failing to State a Claim (Doc. No. 26 ). Signed by Judge Roger T. Benitez on 6/10/2011.(All non-registered users served via U.S. Mail Service)(knh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DANY ROJAS-VEGA,

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CASE NO. 09CV2489 BEN (BLM)
Plaintiff,

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ORDERSUA SPONTE
DISMISSING THIRD AMENDED
COMPLAINT FOR FAILING TO
STATE A CLAIM
[Doc. No. 26]

vs.

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T. DIANE CEJKA, et al.,

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Defendants.

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INTRODUCTION

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Plaintiff Dany Rojas-Vega proceeding pro se and in forma pauperis (“IFP”) has filed a Third

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Amended Complaint (“TAC”). The Court can decipher that Plaintiff is attempting to state claims

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under the Freedom of Information Act (“FOIA”) and the Privacy Act. Plaintiff additionally cites to

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numerous other statutes that have no legal basis under the allegations of his TAC. This constitutes

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Plaintiff’s fourth attempt to file a complaint that states a claim for relief. For the reasons set forth

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below, the Court sua sponte DISMISSES the TAC without leave to amend.
BACKGROUND

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Plaintiff’s TAC asserts claims against U.S. Citizenship and Immigration Services (“USCIS”),

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Immigration and Customs Enforcement (“ICE”), Eric Holder, Jr., and Robin Baker. Plaintiff alleges

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that in 1995, he entered into a plea agreement in state court with an “agency.”1(state court case no:

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Plaintiff continually refers to an “agency,” but it is unclear from paragraph to paragraph to
which agency he is referring.
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M707038). In 2003, after Plaintiff was placed in deportation proceedings for his drug conviction, he

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sought the tapes and transcripts of his state plea proceedings. Plaintiff alleges that he attempted to

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obtain the tapes and transcripts of the state court plea proceedings from other sources, but eventually

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sought them from an agency.

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DISCUSSION
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Sua Sponte Screening per 28 U.S.C. § 1915(e)(2)

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The Court has reviewed Plaintiff’s TAC and finds that Plaintiff has again failed to state a claim

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for relief. A complaint filed by any person proceeding, or seeking to proceed, IFP under 28 U.S.C. §

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1915(a) is subject to mandatory sua sponte review and dismissal if the complaint is frivolous or

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malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a

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defendant immune from suit. 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th

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Cir. 2000). Where a complaint fails to state “any constitutional or statutory right that was violated,

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nor asserts any basis for federal subject matter jurisdiction,” there is no “arguable basis in law” and

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the court on its own initiative may decline to permit the plaintiff to proceed and dismiss the complaint

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under § 1915. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (citing Neitzke v. Williams,

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490 U.S. 319, 325 (1989)).

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“[W]hen determining whether a complaint states a claim, a Court must accept as true all

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allegations of material fact and must construe those facts in the light most favorable to the plaintiff.”

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Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also Barren v. Harrington, 152 F.3d 1193,

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1194 (9th Cir. 1998) (§ 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure

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12(b)(6).”). While “[c]onstruing these pro se pleadings liberally, as we must,” Franklin v. Murphy,

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745 F.2d 1221, 1230 (9th Cir. 1984) (citing Haines v. Kerner, 404 U.S. 519 (1972)), the Court may

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not “supply essential elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of the

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Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Having concluded the § 1915(e) review, Plaintiff’s

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TAC is dismissed without leave to amend.

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A.

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Plaintiff’s citizenship prevents him from obtaining relief under the Privacy Act. The Privacy Act

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allows an “individual” to gain access to agency records containing information regarding himself. 5

Plaintiff’s Privacy Act Claim.

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U.S.C. § 552a(d)(1); Raven v. Pan. Canal Co., 583 F.2d 169, 170 (5th Cir. 1978). Individuals who

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are denied access to certain official records may bring a civil action to compel disclosure. 5 U.S.C.

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§ 552a(g)(1); Raven, 583 F.2d at 170. Under the Privacy Act, an “individual” is defined as “a citizen

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of the United States or an alien lawfully admitted for permanent residence.” 5 U.S.C. § 552a(a)(2).

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Congress purposely limited the Privacy Act in this manner. Raven, 583 F.2d at 171; Stone v. Exp.-Imp.

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Bank of U.S., 552 F.2d 132, 136-37 (5th Cir. 1977); Doherty v. U.S. Dep’t of Justice, 596 F. Supp.

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423, 425-26 (S.D.N.Y. 1984); Fla. Med. Ass’n, Inc. v. Dep’t Health, Educ. & Welfare, 479 F. Supp.

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1291, 1307 (M.D. Fla. 1979). “The legislative history of the Privacy Act indicates that the definition

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of ‘individual’ by Congress was intended to exclude from the coverage of the Privacy Act those

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interests of foreign nationals and nonresident aliens. . . .” Fla. Med. Ass’n, Inc., 479 F. Supp. at 1307.

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According to the record before the Court, Plaintiff’s lawful permanent resident status was

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revoked, resulting in his removal. Consistent with this record, Plaintiff alleges he resides in Del

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Marisco Bar, Costa Rica. As such, he is not entitled to enjoy the benefits attributed to U.S. citizens

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or individuals currently possessing lawful resident status. Plaintiff cannot state a claim for a benefit

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that he is clearly not entitled to under the Privacy Act. Additionally, as discussed below, the TAC

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lacks a factual basis to support Plaintiff’s conclusory allegations that a federal agency has the tapes

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and transcripts of his state court plea proceedings.

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B.

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“The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a

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democratic society, needed to check against corruption and to hold the governors accountable to the

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governed.” NLRB v. Robbins Tire & Co., 437 U.S. 214, 242 (1978). When a person requests a record

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from a federal agency and the agency withholds the record, the person may bring suit in district court

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to enjoin the agency from withholding the record and to order the production of any records improperly

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withheld. 5 U.S.C. § 552(a)(4)(B); U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the

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Press, 489 U.S. 749, 755 (1989).

Plaintiff’s FOIA Claim.

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Although the mandate of FOIA calls for broad disclosure of Government records, the Act

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represents a careful balance between “public rights and agency obligations.” Kissinger v. Reporters

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Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980). As such, FOIA provides that any person
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has a right of access to federal agency records, except to the extent that such records (or portions

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thereof) are protected from disclosure by one of nine exemptions or by one of three special law

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enforcement exclusions. See 5 U.S.C. § 552. To successfully assert a FOIA claim, the plaintiff must

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show “that an agency has: (1) ‘improperly’; (2) ‘withheld’; (3) ‘agency records.’” Id. A district

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court’s authority to implement judicial remedies and order the production of improperly withheld

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documents can only be invoked if the agency has violated all three requirements. See id. The Court

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finds that even liberally construing Plaintiff’s allegations, the TAC fails to state a valid FOIA claim.

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Plaintiff’s conclusory allegations that an agency improperly withheld tapes and transcripts of

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state court proceedings is not sufficient. The tapes and transcripts sought by Plaintiff originated from

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state court proceedings. Federal agencies are not caretakers of state court documents. Improper

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withholding of a record would, at a minimum, require the agency to have possession of the record

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requested. Plaintiff provides no basis for an agency to maintain tapes and transcripts of Plaintiff’s state

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court plea proceedings decades after those proceedings took place and years after the state court

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destroyed those records. Plaintiff’s conclusory speculation that an agency possessed these documents

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is insufficient. An agency cannot improperly withhold a record it has no reason to have. Construing

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the allegations liberally in Plaintiff’s favor, the Court finds the TAC lacks a sufficient factual basis

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supporting Plaintiff’s allegation that an agency possessed an agency record that it improperly withheld

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when requested by Plaintiff in a timely fashion.

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Additionally, Plaintiff has failed to state a claim under any of the numerous other statutes cited

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in the TAC. Accordingly, the TAC is sua sponte DISMISSED for failing to state a claim pursuant

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to 28 U.S.C. § 1915(e)(2). See Calhoun v. Stahl, 254 F.3d 845, 845 (2001); Lopez, 203 F.3d at 1127.

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II.

Leave to Amend

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The Court finds that granting Plaintiff further leave to amend would be futile, particularly given

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the four prior attempts to file a complaint that states a claim. Allen v. City of Beverly Hills, 911 F.2d

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367, 373 (9th Cir. 1990) (identifying futility of amendment and previous opportunities to amend as

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factors to assess the propriety of granting leave to amend). The Court has cautioned Plaintiff with each

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opportunity to amend that if Plaintiff failed to state a claim, his complaint would be dismissed without

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leave to amend. After four attempts, dismissal without leave to amend is appropriate. Additionally,
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as discussed above, there is no basis for Plaintiff’s attempt to obtain tapes and transcripts of state court

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proceedings from a federal agency years after those proceedings took place. Any further attempt to

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amend would be futile.

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CONCLUSION
The TAC is DISMISSED without leave to amend for failing to state a claim upon which relief
can be granted pursuant to 28 U.S.C. § 1915(e)(2).

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IT IS SO ORDERED.

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DATED: June 10, 2011

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Hon. Roger T. Benitez
United States District Judge

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