Rivadeneira v. Department of Homeland Security et al

Filing 5

MEMORANDUM OPINION granting 4 Motion for Leave to Proceed in forma pauperis. Upon initial screening of the complaint, the instant action will be dismissed for the reasons stated. Signed by Judge Greg N. Stivers. cc: Plaintiff, pro se; U.S. Attorney (ERH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:15CV-P548-GNS

DR. FELIX GUZMAN RIVADENEIRA

PLAINTIFF

v.
DEPARTMENT OF HOMELAND SECURITY et al.

DEFENDANTS

MEMORANDUM OPINION
Plaintiff Dr. Felix Guzman Rivadeneira, an immigration detainee, filed this pro se action.
He also filed an application to proceed without prepayment of fees (DN 4), which is
GRANTED.1 This matter is now before the Court on initial review of the complaint pursuant to
28 U.S.C. § 1915(e) and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on
other grounds by Jones v. Bock, 549 U.S. 199 (2007). Upon initial screening of the complaint,
the instant action will be dismissed for the reasons that follow.
I.
According to the complaint, Plaintiff is an immigration detainee confined in the McHenry
County Jail in Woodstock, Illinois. He sues the Department of Homeland Security (DHS); the
Department of Immigration Customs Enforcement (ICE); the United States Attorney General;
the “Chief Operator of the Detention Operation Manual”; “All the Warden of the Jails and
Detention Centers contracted by I.C.E.”; “All the Service Processing Centers (SPCs)”; “All the

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An immigration detainee who does not also face criminal charges is not a prisoner under 28 U.S.C. § 1915(h) and is
therefore not subject to the Prison Litigation Reform Act (PLRA). See Andrews v. King, 398 F.3d 1113, 1122 (9th
Cir. 2005); LaFontant v. INS, 135 F.3d 158, 165 (D.C. Cir. 1998); Ojo v. INS, 106 F.3d 680, 682 (5th Cir. 1997).
For the purposes of this memorandum opinion, the Court presumes that Plaintiff is an immigration detainee not also
facing criminal charges and is therefore not subject to the PLRA’s requirements for prisoner in forma pauperis
status. However, since he is proceeding in forma pauperis, the Court must conduct an initial screening of the
complaint pursuant to 28 U.S.C. § 1915(e).

Contract Detention Facilities (CDFs)”; and “All the Intergovernmental Service Agreement
Facilities (IGSA).”
Plaintiff states that he is suing on “behalf of the thousands of detainees and their
families” who are suffering “abuse, prejudice and discrimination” as a result of “fraud,
corruption, mismanagement and misconduct produced by all the entities mentioned in my
lawsuit.” He claims that “I (we) have been”: denied basic human needs and subjected to cruel
and unusual punishment; subjected to deliberate indifference in his (or their) medical needs;
subject to malicious and sadistic uses of force; incarcerated in punitive and unconstitutional
conditions; subjected to overcrowding, widely abused punitive disciplinary procedures, and
physical, sexual, and verbal abuse that is often discriminatory in nature; subjected to inadequate
access to a meaningful grievance procedure and religious freedom; and subjected to physical and
mental harm because of a lack of oversight by Defendants DHS, ICE, and the other Defendant
entities. In his Request for Relief, Plaintiff seeks the creation of a new law and immigration
detention standards that comply with human rights principles, greater government transparency,
effective national oversight, and two hundred and ten billion dollars.
II.
Because Plaintiff is proceeding in forma pauperis, this Court must review the instant
action. 28 U.S.C. § 1915(e); McGore, 114 F.3d at 608-09. Upon review, the Court must dismiss
a case at any time if it determines that an action is frivolous or malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief from a defendant who is immune
from such relief. See 28 U.S.C. § 1915(e)(2)(B). This Court recognizes that pro se pleadings are
to be held to a less stringent standard than formal pleadings drafted by lawyers. Haines v.
Kerner, 404 U.S. 519 (1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). However, the

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duty “does not require us to conjure up unpled allegations.” McDonald v. Hall, 610 F.2d 16, 19
(1st Cir. 1979). In order to survive dismissal for failure to state a claim, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[A] district court must (1) view
the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual
allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009)
(citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). “But the
district court need not accept a ‘bare assertion of legal conclusions.’” Tackett, 561 F.3d at 488
(quoting Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)).
III.
The complaint must be dismissed for several reasons. First, while Plaintiff attempts to
bring this suit on behalf of “thousands of detainees and their families,” as a pro se litigant, he is
not permitted to sue on anyone else’s behalf. Section 1654 of Title 28 of the United States Code
provides that “[i]n all courts of the United States the parties may plead and conduct their own
cases personally or by counsel . . . .” That statute, however, “does not permit plaintiffs to appear
pro se where interests other than their own are at stake.” Shepherd v. Wellman, 313 F.3d 963,
970 (6th Cir. 2002); Gonzales v. Wyatt, 157 F.3d 1016, 1021 (5th Cir. 1998) (“[I]n federal court
a party can represent himself or be represented by an attorney, but cannot be represented by a
nonlawyer.”); Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991) (advising
that § 1654 “‘does not allow for unlicensed laymen to represent anyone else other than

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themselves’”) (citation omitted). Therefore, any claims Plaintiff may be attempting to bring on
behalf of others must be dismissed for failure to state a claim.
Secondly, because Plaintiff alleges violations of his constitutional rights by governmental
entities or employees, the Court construes the claims as bringing civil-rights claims pursuant to
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) and 42 U.S.C. § 1983.
However, the United States and its agencies have not waived their sovereign immunity from
claims under the Bivens Doctrine. F.D.I.C. v. Meyer, 510 U.S. 471, 477 (1994). Moreover,
Plaintiff cannot bring official-capacity claims against the United States Attorney General or any
other federal officer because “a Bivens claim [for damages] may not be asserted against a federal
officer in his official capacity.” Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991) (citing
Holloman v. Watt, 708 F.2d 1399, 1402 (9th Cir. 1983)). To the extent he attempts to bring
official-capacity claims against “All the Warden of the Jails and Detention Centers contracted by
I.C.E.” or any other Defendant who is not a federal officer or entity, those claims fail to state a
claim because Plaintiff has failed to sufficiently identity these Defendants. While the Court has a
duty to construe pro se complaints liberally, Plaintiff is not absolved of his duty to comply with
the Federal Rules of Civil Procedure by providing each Defendant with “fair notice of the basis
for his claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002).
To the extent Plaintiff is suing any of the individual Defendants in his or her individual
capacity, his claims fail because a plaintiff suing under Bivens/§ 1983 must show how each
Defendant is accountable because the Defendant was personally involved in the acts about which
he complains. See Rizzo v. Goode, 423 U.S. 362, 375-76 (1976). Plaintiff has not alleged any
facts indicating that any of the Defendants were directly or personally involved in any of the
alleged constitutional wrongdoing that he describes. Moreover, if he wishes to hold any

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Defendant liable under a respondeat superior theory, or the right to control employees,
respondeat superior cannot form the basis of liability in a Bivens or § 1983 action. Monell v.
Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978). Therefore, Plaintiff’s claims
under Bivens and § 1983 must be dismissed for failure to state a claim.
Finally, nothing in the complaint describes any events occurring in the Western District
of Kentucky or gives any reason for filing this action in this Court. A search of the Court’s
online PACER database reveals that Plaintiff filed identical copies of his complaint in at least 45
federal district courts within a five-day period during the second week of June 2015 alone. See,
e.g., Rivadeneira v. Dept. of Homeland Security et al., No. 4:15-CV-168-LGW-GRS (S.D. Ga.
2015); Rivadeneira v. Dept. of Homeland Security et al., No. 5:15-CV-3148-SAC-DJW (D. Kan.
2015); Rivadeneira v. Dept. of Homeland Security et al., No. 1:15-CV-911-RLY-MJD (S.D. Ind.
2015); Rivadeneira v. Dept. of Homeland Security et al., No. 5:15-172-KKC (E.D. Ky. 2015).
He filed a total of 62 actions in federal district courts between June 10, 2015, and July 30, 2015.
Filing identical lawsuits in multiple district courts is abusive and wasteful of judicial
resources and warrants dismissal under § 1915(e) as frivolous and malicious. See Cato v. United
States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (complaint with the same allegations as in an
earlier complaint that had been dismissed was properly dismissed under § 1915 as frivolous or
malicious); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988) (duplicative or repetitious
litigation of virtually identical causes of action is subject to dismissal under § 1915 as malicious).
A federal court may dismiss a suit when it is duplicative of a suit already pending in another
federal court. See, e.g., Lea v. United States, 120 Fed. Cl. 440, 446 (2015); McReynolds v.
Merrill Lynch & Co., Inc., 694 F.3d 873, 888-89 (7th Cir. 2012); cf. Colo. River Water
Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (“As between federal district

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courts . . . the general principle is to avoid duplicative litigation.”). For these reasons, this action
must be dismissed as frivolous and malicious.
A separate Order dismissing the action will be entered consistent with this Memorandum
Opinion.
Date:

August 11, 2015

Greg N. Stivers, Judge
United States District Court
cc:

Plaintiff, pro se
U.S. Attorney
4416.010

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