Reyes v. Bureau of Indian Affairs Pacific Regional Office

Filing 3

ORDER (1) Granting 2 Motion to Proceed in forma pauperis and (2) Dismissing Complaint without Prejudice for Failing to State a Claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff's motion to proceed IFP is granted. The Court sua sponte dismisses the Complaint without prejudice. Signed by Judge Dana M. Sabraw on 6/26/2017. (All non-registered users served via U.S. Mail Service)(aef) (sjt).

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 EMILIO REYES, Plaintiff, 13 v. 14 15 BUREAU OF INDIAN AFFAIRS PACIFIC REGIONAL OFFICE, 16 Defendant. Case No. 17-cv-1187 DMS (BGS) ORDER (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND (2) DISMISSING COMPLAINT WITHOUT PREJUDICE FOR FAILING TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) 17 18 Plaintiff Emilio Reyes, a nonprisoner proceeding pro se, brought an action 19 under the Freedom of Information Act (“FOIA”) against Defendant Bureau of Indian 20 Affairs Pacific Regional Office. Plaintiff has not paid the $400 civil filing fee 21 required to commence this action, but rather, has filed a motion to proceed in forma 22 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 23 A. Motion to Proceed IFP 24 Pursuant to 28 U.S.C. § 1915(a), a court may authorize the commencement of 25 a suit without prepayment of fees if plaintiffs submit an affidavit, including a 26 statement of all their assets, showing that they are unable to pay filing fees. See 28 27 U.S.C. § 1915(a). Here, Plaintiff has submitted an affidavit sufficiently showing 28 that he lacks the financial resources to pay filing fees. Accordingly, Plaintiff’s –1– 17-cv-1187 DMS (BGS) 1 motion to proceed IFP is granted. 2 B. Sua Sponte Screening 3 Any complaint filed pursuant to the IFP provisions of 28 U.S.C. § 1915(a), is 4 subject to a mandatory and sua sponte review and dismissal by the Court, if it finds 5 the Complaint is “frivolous, malicious, failing to state a claim upon which relief may 6 be granted, or seeking monetary relief from a defendant immune from such relief.” 7 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) 8 (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). 9 Initially, Plaintiff seeks access to certain documents in Defendant’s 10 possession and production of a Vaughn index of documents withheld by Defendant 11 pursuant to FOIA. 1 12 information held by federal agencies, unless the requested material is exempt from 13 mandatory disclosure.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 220– 14 21 (1978). To state a claim under the FOIA, a plaintiff must show “that an agency 15 has (1) ‘improperly’; (2) ‘withheld’; (3) ‘agency records.’” Kissinger v. Reporters 16 Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980) (quoting 5 U.S.C. § 17 552(a)(4)(B)). Here, there is no allegation that Defendant improperly withheld any 18 agency records when requested by Plaintiff in a timely fashion. Rather, Plaintiff 19 merely seeks certain documents in Defendant’s possession, where “[t]he precise 20 documents to which [P]laintiff seeks access are contained in an online request dated 21 April 1, 2016 to the Indian Affairs FOIA Office[.]” (Compl.) Moreover, Plaintiff The FOIA “provides for the mandatory disclosure of 22 23 1 24 25 26 27 28 The term “Vaughn Index” originated from Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), where the court rejected an agency’s conclusory affidavit to the effect that requested FOIA documents were subject to exemption. “The purpose of a Vaughn Index is ‘to afford the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding.’” Citizens Comm’n on Human Rights v. Food & Drug Admin., 45 F.3d 1325, 1328 (9th Cir. 1995) (quoting Wiener v. FBI, 943 F.2d 972, 977 (9th Cir. 1991)). –2– 17-cv-1187 DMS (BGS) 1 requests production of a Vaughn Index, contending “[it] would be particularly useful 2 in sharpening the issues and permitting the plaintiff to test the bases for the 3 government’s exemption claims.” (Id.) This is insufficient to state a claim under 4 the FOIA. Accordingly, the Court sua sponte dismisses the Complaint without 5 prejudice. 6 7 IT IS SO ORDERED. Dated: June 26, 2017 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 –3– 17-cv-1187 DMS (BGS)

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