Salvador v. Hansberg

Filing 5

ORDER: (1) Granting Motion To Proceed In Forma Pauperis (Re Doc. 2 ); (2) Denying Motion To Appoint Counsel (Re Doc. 3 ); And (3) Sua Sponte Dismissing Complaint For Failing To State A Claim And As Frivolous: Plaintiff is GRANTED 45 days leave from the date this Order is filed in which to file a First Amended Complaint which cures the deficiencies of pleading noted. If Plaintiff fails to file an Amended Complaint within 45 days, this case shall remain dismissed for failing to state a claim pursuant to 28 U.S.C. Section 1915(e)(2). Signed by Judge William Q. Hayes on 8/6/2012. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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AMINA SALVADOR,
Detainee No. A200968077,

Civil No.

ORDER:

Plaintiff,

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(1) GRANTING MOTION TO
PR.OCEED IN FORMA PAUPERIS
[ECF No.2];

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vs.

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(2) DENYING MOTION TO
APPOINT COUNSEL [ECF No.3]; and

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MS. HANSBERG,
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(3) SUA SPONTE DISMISSING
COMPLAINT FOR FAILING
TO STATE A CLAIM AND AS
FRIVOLOUS

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Defendant.
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Amina Salvador ("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. [ECF No. I].

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Plaintiffhas not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, she has

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filed aMotion to Proceed In Forma Pauperis ("IFP")pursuantt028 U.S.C. § 1915(a) [ECFNo.

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2], along with a Motion to Appoint Counsel [ECF No.3].

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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 ofthe 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 plaintifrs failure to prepay the entire fee
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1 only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See
2 Rodriguez v. Cook, 169 F3d 1176, 1177 (9th Cir. 1999). However, "[u]nlike other indigent
3 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,

5 886 (9th Cir. 2002). As defmed by the PLRA, a "prisoner" is "any person incarcerated or
6 detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent
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for, violations ofcriminal law or the terms and conditions ofparole, probation, pretrial release,

8 or diversionary program." 28 U.S.c. § 1915(h). Under this definition, "an alien detained by the
9 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 she was civilly detained pursuant to immigration or deportation proceedings, and not a

14 "prisoner" as defined by 28 U.S.C. § 1915(h), the filing fee provisions of28 U.S.C. § 1915(b)
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do not apply to her.
Accordingly, the Court has reviewed Plaintiff's affidavit ofassets,just as it would for any

17 other non-prisoner litigant seeking IFP status, see S.D. CAL. ClvLR 3.2(d). The Court finds that
18 Plaintiff's affidavit is sufficient to show that Plaintiff is unable to pay the fees or post securities
19 required to maintain this action and hereby GRANTS Plaintiff's Motion to Proceed IFP pursuant
20 to 28 U.S.C. § 1915(a) [ECF No.2].
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II.

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MOTION FOR ApPOINTMENT OF COUNSEL

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Plaintiff also requests the appointment of counsel to assist her in prosecuting this civil

24 action. The Constitution provides no right to appointment of counsel in a civil case, however,
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unless an indigent litigant may lose her physical liberty if she loses the litigation. Lassiter v.

26 Dept. ofSocial Services, 452 U.S. 18,25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(I),
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district courts are granted discretion to appoint counsel for indigent persons. This discretion may

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be exercised only under "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017
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1 (9th Cir. 1991). "A finding of exceptional circumstances requires an evaluation of both the
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'likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se

3 in light ofthe complexity ofthe legal issues involved.' Neither ofthese issues is dispositive and
4 both must be viewed together before reaching a decision." Id. (quoting Wilborn v. Escalderon,
5 789 F.2d 1328, 1331 (9th Cir. 1986)).
The Court denies Plaintiffs request without prejudice because, for the reasons set forth

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7 below, neither the interests of justice nor exceptional circumstances warrant appointment of
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counsel at this time. LaMere v. Risley, 827 F.2d 622,626 (9th Cir. 1987); Terrell, 935 F.2d at

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1017.

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DI.

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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

14 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 of28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."); Lopez

17 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

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claim."). "[W]hen determining whether a complaint states a claim, a court must accept as true

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all allegations of material fact and must construe those facts in the light most favorable to the

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

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152 F.3d 1193, 1194 (9th Cir. 1998) (§ 1915(e)(2) "parallels the language of Federal Rule of

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Civil Procedure 12(b)(6).").

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In the Complaint, Plaintiff alleges a number of actions that appear to be delusional. For

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example, Plaintiff alleges that Defendant Hansberg has "made present rodents and snakes" so

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that a "natural pregnancy will never take place." (Compl. at 3.) Plaintiff also alleges Defendant

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Hansberg "encourages detainees to use the microwave" which causes Plaintiff's nearby room

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to "smell like a kitchen." Plaintiff alleges that "news coverage has illustrated... that I am in fact

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1 allergic to the microwave." (Id. at 4). The Court finds Plaintiffs claims to be frivolous because
2 they lack even "an arguable basis either in law or in fact," and appear "fanciful," "fantastic," or
3 "delusional." Neitzke, 490 U.S. at 325, 328. The Court dismisses the entirety of Plaintiffs
4 Complaint as frivolous.
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To the extent that Plaintiff may be alleging facts relating to her confmement in a Federal

6 Immigration center and may be trying to claim violation ofher civil rights by federal actors, the
7 Court construes this matter as arising under Bivens v. Six Unknown Named Fed. Narcotics
8 Agents, 403 U.S. 388 (1971). Bivens established that "compensable injury to a constitutionally
9 protected interest [by federal officials alleged to have acted under color of federal law] could be
10 vindicated by a suit for damages invoking the general federal question jurisdiction ofthe federal
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courts [pursuantto 28 U.S.C. § l331]." Butzv. Economou, 438 U.S. 478, 486 (1978). "Actions

12 under § 1983 and those under Bivens are identical save for the replacement ofa state actor under
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§ 1983 by a federal actor under Bivens." Van Strum v. Lawn, 940 F .2d 406, 409 (9th Cir. 1991).

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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. Id.; 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 oftheir constitutional

19 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). Bivens

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does not authorize a suit against the government or its agencies for monetary relief. FDIC v.

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Meyer, 510 U.S. 471, 486 (1994); Thomas-Lazearv. FBI, 851 F.2d 1202, 1207 (9th Cir. 1988);

24 Daly- Murphy, 837 F.2d at 355. Nor does Bivens provide a remedy for alleged wrongs
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committed by a private entity alleged to have denied Plaintiffs constitutional rights under color

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offederal law . Correctional Services Corp. v. Malesko, 534 U. S. 61, 69 (2001) (m [T]he purpose

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of Bivens is to deter the officer,' not the agency.") (quoting Meyer, 510 U.S. at 485); Malesko,

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534 U.S. at 66 n.2 (holding that Meyer "forecloses the extension of Bivens to private entities.").
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The Court cannot determine the true nature ofPlaintiff s allegations or whether Plaintiff

2 is attempting to state a claim under federal law. It is unclear if the named Defendant is an
3 employee of the private corporation that runs the facility where Plaintiff is detained. Some of
4 Plaintiff s allegations suggest that she is attempting to allege an Eighth Amendment violation.
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However, the Supreme Court recently held that an inmate cannot bring a Bivens action against

6 an employee ofa private entity for damages pursuant to alleged Eighth Amendment violations.
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See Minneci v. Pollard, 132 S.Ct. 617, 626 (2012). Thus, while Plaintiff may be able to raise

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her Eighth Amendment claims against the private employees as a tort claim in state court, her

9 claim is not cognizable as a Bivens action in this Court. Moreover, federal courts are courts of
10 limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. ofAm., 511 U.S. 375, 377 (1994).
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Federal question jurisdiction exists over "civil actions arising under the Constitution, laws, or

12 treatiesofthe United States." 28 U.S.C. § 1331. Because Plaintiffs Complaint does not comply
13 with § 1331, there is no subj ect matter jurisdiction.
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For the reasons set forth above, Plaintiffs entire action is dismissed as frivolous, for

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failing to state a claim upon which relief may be granted, and for lack of subject matter

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IV.

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CONCLUSION AND ORDER

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Good cause appearing therefore, IT IS HEREBY ORDERED that:

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1.

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Plaintiffs Motion to Proceed IFP pursuantto 28 U.S.C. § 1915(a) [ECF No.2] is

GRANTED.

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2.

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IT IS FURTHER ORDERED that:

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3.

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Plaintiffs Motion to Appoint Counsel [ECF No.3] is DENIED without prejudice.

Plaintiffs Complaint is DISMISSED without prejudice pursuant to 28 U.S.C.

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

26 Order is filed in which to file a First Amended Complaint which cures the deficiencies of
27 pleading noted above.

Plaintiffs Amended Complaint must be complete in itself without

28 reference to the superseded pleading. See S.D. CAL. CIvLR 15.1. Defendants not named and
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1 any claim not re-alleged in the Amended Complaint will be considered waived. See King v.
2 Atiyeh, 814 F .2d 565, 567 (9th Cir. 1987). If Plaintiff fails to file an Amended Complaint
3 within 45 days, this case shall remain dismissed for failing to state a claim pursuant to 28 U.S.C.

4 § 1915(e)(2).
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