Salvador v. Rodwell

Filing 5

ORDER Granting 2 Motion for Leave to Proceed in forma pauperis; Denying 3 Motion to Appoint Counsel Without Prejudice; and Sua Sponte Dismissing Complaint For Failure to State a Claim. The Court Grants sixty (60) days leave to amend. Signed by Judge Gonzalo P. Curiel on 11/7/2012. (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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AMINA SALVADOR,
Detainee No. A200968077,

Civil No.
Plaintiff,

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

vs.

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

MR. RODWELL,

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(3) SUA SPONTE DISMISSING
COMPLAINT FOR FAILING
TO STATE A CLAIM

Defendant.

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Amina Salvador (“Plaintiff”), currently detained at the San Diego Detention Center

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located in San Diego, California, and proceeding pro se, has filed a civil action. Plaintiff has not

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prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, she has filed a Motion to

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Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [ECF No. 2], along with

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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 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 she 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 her.

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Accordingly, the Court has reviewed Plaintiff’s affidavit of assets, just as it would for any

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other non-prisoner litigant seeking IFP status, see S.D. CAL. CIVLR 3.2(d), finds it is sufficient

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to 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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MOTION FOR APPOINTMENT OF COUNSEL

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

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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.

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Dept. of Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1),

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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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(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

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in light of the complexity of the legal issues involved.’ Neither of these issues is dispositive and

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both must be viewed together before reaching a decision.” Id. (quoting Wilborn v. Escalderon,

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789 F.2d 1328, 1331 (9th Cir. 1986)).

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The Court denies Plaintiff’s request without prejudice because, for the reasons set forth

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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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III.

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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

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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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Plaintiff’s Complaint contains virtually no factual allegations. Plaintiff alleges “rape,

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attempted murder, hostage holding” and Defendant Rodwell “has committed the said crimes

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against me.” (Compl. at 1.) Because it appears that Plaintiff may be alleging facts relating to

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her confinement in a Federal Immigration center and she may be trying to claim violation of her

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civil rights by federal actors, the Court construes this matter as arising under Bivens v. Six

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Unknown Named Fed. Narcotics Agents, 403 U.S. 388 (1971). Bivens established that

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“compensable injury to a constitutionally protected interest [by federal officials alleged to have

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acted under color of federal law] could be vindicated by a suit for damages invoking the general

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

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Economou, 438 U.S. 478, 486 (1978). “Actions under § 1983 and those under Bivens are

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identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens.”

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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 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). 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-Lazear v. FBI, 851 F.2d 1202, 1207 (9th Cir. 1988);

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Daly- Murphy, 837 F.2d at 355.

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Nor does Bivens provide a remedy for alleged wrongs committed by a private entity

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

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

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officer,’ not the agency.”) (quoting Meyer, 510 U.S. at 485); Malesko, 534 U.S. at 66 n.2

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

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While the one allegation in Plaintiff’s Complaint is of a serious nature, there are no other

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facts in Plaintiff’s Complaint to inform the Court as to the role or identity of “Mr. Rodwell.”

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There are no facts from which the Court could even conclude that “Mr. Rodwell” is a federal

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agent. There are no facts that would give rise to finding of any civil rights violation by a federal

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actor. Plaintiff would have to supply additional facts and allegations if she intends to bring an

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Amended Complaint.

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Because it is not clear what other claim Plaintiff attempting to bring in this action,

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Plaintiff’s entire action must be dismissed for failing to state a claim upon which relief may be

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granted.

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IV.

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

GRANTED.

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2.

Plaintiff’s Motion to Appoint Counsel [ECF No. 3] is DENIED without prejudice.

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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 sixty (60) 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, this case shall remain dismissed for failing to state a claim pursuant to 28 U.S.C.

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§ 1915(e)(2).

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DATED: November 7, 2012

Plaintiff’s Amended Complaint must be complete in itself without

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HON. GONZALO P. CURIEL
United States District Judge

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