Udom v. Warden et al

Filing 7

ORDER Granting 2 Motion for Leave to Proceed in forma pauperis; Denying 5 Motion to Submit Supplemental Information to Court Files; Dismissing 1 Complaint without prejudice. Plaintiff is Granted 45 days leave from the date of this Order to f ile a First Amended Complaint. If Plaintiff fails to file an Amended Complaint within 45 days, the Court will prepare a final Order dismissing this action. Signed by Judge Barry Ted Moskowitz on 7/5/2012. (Order electronically transmitted to Matthew Cate, Secretary CDCR)(All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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ANTHONY UDOM,
Detainee No. A023503206,

Civil No.
Plaintiff,

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vs.

(2) SUA SPONTE DISMISSING
COMPLAINT FOR FAILING TO
STATE A CLAIM PURSUANT TO 28
U.S.C. § 1915(e)(2); and

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WARDEN; OFFICER TELLECHA;
SAN DIEGO CORRECTIONAL
FACILITY,

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ORDER:
(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 2];

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Defendants.

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(3) DENYING MOTION TO SUBMIT
SUPPLEMENTAL INFORMATION
TO COURT FILES WITHOUT
PREJUDICE [ECF No. 5.]

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Anthony Udom (“Plaintiff”), currently detained at the San Diego Correctional Facility

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located in San Diego, California, and proceeding pro se, has filed a civil action. Plaintiff has

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filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [ECF No.

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2]. In addition, Plaintiff has filed a “Motion to Submit Supplemental Information to Court

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Files.” [ECF No. 5.]

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I.

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MOTION TO PROCEED IFP

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All parties instituting any civil action, suit or proceeding in a district court of the United

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States, except an application for writ of habeas corpus must pay a filing fee of $350. See 28

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U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee

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only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See

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Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, “[u]nlike other indigent

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litigants, prisoners proceeding IFP must pay the full amount of filing fees in civil actions and

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appeals pursuant to the PLRA [Prison Litigation Reform Act].” Agyeman v. INS, 296 F.3d 871,

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886 (9th Cir. 2002). As defined by the PLRA, a “prisoner” is “any person incarcerated or

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detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent

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for, violations of criminal law or the terms and conditions of parole, probation, pretrial release,

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or diversionary program.” 28 U.S.C. § 1915(h). Under this definition, “an alien detained by the

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INS pending deportation is not a ‘prisoner’ within the meaning of the PLRA,” because

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deportation proceedings are civil, rather than criminal in nature, and an alien detained pending

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deportation has not necessarily been “accused of, convicted of, sentenced or adjudicated

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delinquent for, a violation of criminal law.” Agyeman, 296 F.3d at 886. Thus, because Plaintiff

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claims he was civilly detained pursuant to immigration or deportation proceedings, and not a

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“prisoner” as defined by 28 U.S.C. § 1915(h), the filing fee provisions of 28 U.S.C. § 1915(b)

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do not apply to him.

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Accordingly, the Court has reviewed Plaintiff’s affidavit of assets and it is sufficient to

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show that Plaintiff is unable to pay the fees or post securities required to maintain this action,

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and hereby GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF

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No. 2].

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II.

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SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)

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Any complaint filed by a person proceeding IFP is subject to sua sponte dismissal by the

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Court to the extent it contains claims which are “frivolous, malicious, fail to state a claim upon
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which relief may be granted, or seek monetary relief from a defendant immune from such relief.”

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28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam)

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(holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez

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v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits,

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but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.”)

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Plaintiff purports to bring this claim against the San Diego Correctional Facility, a private

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corporation, and its employees under the Administrative Procedure Act (“APA”). (See Compl.

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at 1; citing 5 U.S.C. § 706.) However, the Defendants are neither an agency of the Federal

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Government nor are they employees of the Federal Government. Therefore, any decisions made

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by the San Diego Correctional Facility are not reviewable under the APA. See Spokane County

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Legal Services, Inc. v. Legal Services Corp., 614 F.2d 662, 669 (1980).

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In addition, it appears that Plaintiff may be seeking to bring this action pursuant to the

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Federal Torts Claim Act (“FTCA”). However, he fails to name the United States as a Defendant

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in this action. The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680,

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provides that the sovereign immunity of the United States is waived for suits resulting from torts

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“caused by the negligent or wrongful act or omission of any employee of the Government ...

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under circumstances where the United States, if a private person, would be liable to the claimant

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in accordance with the law of the place where the act or omission occurred.” 28 U.S.C.

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§ 1346(b). Thus, Plaintiff’s FTCA claims against the named Defendants fail because the United

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States is the only proper defendant for an FTCA claim against a federal employee for actions

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taken within the scope of their employment. See Ward v. Gordon, 999 F.2d 1399, 1401 (9th

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Cir. 1993).

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Should Plaintiff seek to hold Defendant San Diego Correctional Facility liable for alleged

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civil rights violations pursuant to Bivens v. Six Unknown Named Fed. Narcotics Agents, 403 U.S.

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388 (1971), this claims would also fail. Bivens established that “compensable injury to a

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constitutionally protected interest [by federal officials alleged to have acted under color of

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federal law] could be vindicated by a suit for damages invoking the general federal question

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jurisdiction of the federal courts [pursuant to 28 U.S.C. § 1331].” Butz v. Economou, 438 U.S.

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478, 486 (1978).

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To state a private cause of action under Bivens, Plaintiff must allege: (1) that a right

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secured by the Constitution of the United States was violated, and (2) that the violation was

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committed by a federal actor. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 624

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(9th Cir. 1988). Bivens provides that “federal courts have the inherent authority to award

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damages against federal officials to compensate plaintiffs for violations of their constitutional

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rights.” Western Center for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000).

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However, a Bivens action may only be brought against the responsible federal official in his or

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her individual capacity. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1988).

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However, Bivens does not provide a remedy for alleged wrongs committed by a private

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entity alleged to have denied Plaintiff’s constitutional rights under color of federal law.

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Correctional Services Corp. v. Malesko, 534 U.S. 61, 69 (2001) (“‘[T]he purpose of Bivens is

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to deter the officer,’ not the agency.”) (quoting Meyer, 510 U.S. at 485); Malesko, 534 U.S. at

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66 n.2 (holding that Meyer “forecloses the extension of Bivens to private entities.”).

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Accordingly, Plaintiff cannot bring claims of civil rights violations against the San Diego

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Correctional Facility.

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In addition, the Supreme Court recently held that a prisoner cannot bring a Bivens action

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against an employee of a private entity for damages pursuant to alleged Eighth Amendment

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violations. See Minneci v. Pollard, 132 S.Ct. 617, 626 (2012).

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In Minneci, the Supreme Court held that

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[W]here “a federal prisoner seeks damages from privately employed personnel working
at a privately operated federal prison, where the conduct allegedly amounts to a violation
of the Eighth Amendment, and where that conduct is a kind that typically falls within the
scope of traditional state tort law (such as the conduct involving improper medical care
at issue here), the prisoner must seek a remedy under state tort law. We cannot imply a
Bivens remedy in such a case.”

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Id.

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Thus, while Plaintiff may be able to raise his Eighth Amendment claims against the

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private employees as a tort claim in state court, his claim is not cognizable as a Bivens action in

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this Court.

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Plaintiff has also brought a “Motion to Submit Supplemental Information to Court Files.”

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[ECF No. 5.] In this Motion, Plaintiff seeks to add additional factual claims against a party who

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is not currently named as a Defendant in this matter. Because the Court finds that dismissal of

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the entire action is warranted for the reasons set forth above, the Court will DENY Plaintiff’s

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Motion to supplement the Complaint without prejudice. Plaintiff’s Amended Complaint, should

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he choose to file one, must be complete in itself and set forth all of his claims.

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III.

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CONCLUSION AND ORDER

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Good cause appearing therefor, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s Motion to Submit Supplemental Information to Court Files [ECF No.

3] is DENIED without prejudice.
2.

Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 2] is

GRANTED.

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IT IS FURTHER ORDERED that:

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3.

Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C.

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§ 1915(e)(2)(b). However, Plaintiff is GRANTED forty five (45) days leave from the date this

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Order is filed in which to file a First Amended Complaint which cures the deficiencies of

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pleading noted above.

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reference to the superseded pleading. See S.D. CAL. CIVLR 15.1. Defendants not named and

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any claim not re-alleged in the Amended Complaint will be considered waived. See King v.

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Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). If Plaintiff fails to file an Amended Complaint

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within 45 days, the Court will prepare a final Order dismissing this action.

Plaintiff’s Amended Complaint must be complete in itself without

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DATED: July 5, 2012
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BARRY TED MOSKOWITZ, Chief Judge
United States District Court
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