(PS) Ferreira da Silva v. Ross

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 ALEXANDRA FERREIRA DA SILVA, No. 2:21-cv-01208-KJM-CKD PS

12 Plaintiff,

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v. ORDER GRANTING IFP REQUEST AND

DISMISSING COMPLAINT WITH LEAVE

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JONATHAN KEVIN ROSS, et al., TO AMEND

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Defendants.

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17 Plaintiff proceeds pro se in this action seeking relief under 42 U.S.C. § 1983. This matter

18 is referred to the undersigned by Local Rule 302(c)(21) pursuant to 28 U.S.C. § 636.

19 Plaintiff has filed an application in support of a request to proceed in forma pauperis.

20 (ECF No. 2.) The application makes the showing required by 28 U.S.C. § 1915. The request will

21 be granted.

22 Plaintiff’s complaint filed on July 9, 2021 is before the court for screening. Plaintiff has

23 also filed a motion requesting to “stay off removal procedure” (ECF No. 3), a request to file

24 electronically (ECF No. 4), and a motion requesting a hearing (ECF No. 5).

25 I. SCREENING REQUIREMENT

26 Pursuant to 28 U.S.C. § 1915(e), the court must screen every in forma pauperis

27 proceeding, and must order dismissal of the case if it is “frivolous or malicious,” “fails to state a

28 claim on which relief may be granted,” or “seeks monetary relief against a defendant who is

1 immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27

2 (2000). In performing this screening, the court liberally construes a pro se plaintiff’s pleadings.

3 See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (citing Boag v. MacDougall, 454

4 U.S. 364, 365 (1982) (per curiam).

5 II. ALLEGATIONS IN THE COMPLAINT

6 Plaintiff names as defendants the Department of Homeland Security (“DHS”)/

7 Immigrations and Customs Enforcement (“ICE”), the Yuba County Sheriff’s Department,

8 Jonathan Kevin Ross, an attorney for the US Division Office of Immigration Litigation, and Heidi

9 C. Morgan, a jail floor officer at the Yuba County jail. Plaintiff seeks to impose liability on each

10 defendant under 42 U.S.C.§ 1983.

11 In March of 2020, plaintiff was an ICE detainee at Yuba County jail. Being

12 claustrophobic, plaintiff expressed an inability to cope with her tiny cell but was ignored. Plaintiff

13 was not given enough blankets and only had a view of the wall. Plaintiff was treated as a

14 dangerous criminal and had to wear chains when leaving or returning to the cell.

15 Plaintiff attempted suicide and was moved to a suicide watch cell. While on suicide

16 watch, she was observed by male officers even though she did not have her regular clothes or

17 underwear and instead wore only a special garment that did not fully cover her body.

18 When plaintiff visited the law library, she found it difficult to communicate with the

19 controller officers while in the law library. Plaintiff tried to avoid asking to go to the restroom and

20 would stop drinking liquid two hours before leaving the dorm to visit the law library. This

21 resulted in dehydration and needing to use the restroom in a panic.

22 On March 17, 2020, plaintiff had been nine or more hours without water and

23 approximately seven hours without a restroom break when she left the law library. While

24 escorting plaintiff from the law library to the dorm, Officer Morgan used both hands to strike

25 plaintiff on the middle of the back several times and shoved her. Plaintiff sustained a back injury.

26 Officer Morgan then filed a false report accusing plaintiff of disobeying a direct order and

27 threatening Morgan. Plaintiff sought an investigation into this incident and received a response

28 stating that part of her complaint was sustained.

1 Plaintiff alleges Officer Morgan used excessive force in violation of the Fourteenth

2 Amendment. Plaintiff alleges the Yuba County Sheriff’s Department, DHS and ICE were

3 deliberately indifferent to her serious medical needs following the March 17, 2020 incident in that

4 the agencies were aware of the situation and took no visible action to transfer plaintiff to another

5 detention center until May 7, 2020. Plaintiff further alleges she was denied “mental health follow

6 ups” and treatment for her health issue (brain cyst).

7 For relief, plaintiff requests that her “U visa” be granted due to the violent mistreatment to

8 which she was subjected. Plaintiff also seeks a stay of her removal proceeding.

9 III. PLEADING STANDARDS

10 When considering whether a complaint states a claim upon which relief can be granted,

11 the court accepts the well-pleaded factual allegations as true, Erickson v. Pardus, 127 S. Ct. 2197,

12 2200 (2007), and construes the complaint in the light most favorable to the plaintiff. See Scheuer

13 v. Rhodes, 416 U.S. 232, 236 (1974). Although the facts are accepted as true, a court need not

14 indulge unwarranted inferences or legal conclusions. See Doe I v. Wal-Mart Stores, Inc., 572

15 F.3d 677, 681 (9th Cir. 2009).

16 In order to avoid dismissal, a claim must have facial plausibility. Bell Atlantic Corp. v.

17 Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads

18 factual content that allows the court to draw the reasonable inference that the defendant is liable

19 for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[N]aked assertions,”

20 “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” do not

21 suffice. Twombly, 550 U.S. at 555-57 (2007); see also Iqbal, 556 U.S. at 678.

22 IV. THE COMPLAINT FAILS TO STATE A CLAIM

23 A. The Court lacks Jurisdiction to Grant the Requested Relief

24 Title 8 U.S.C. section 1252(g) deprives this court of jurisdiction to grant plaintiff the

25 requested relief. Enacted as part of the REAL ID Act of 2005, see Leiva v. Clark, 446 F. App’x

26 899, 900 (9th Cir. 2011), that section provides as follows:

27 Except as provided in this section and notwithstanding any other

provision of law (statutory or nonstatutory), including section 2241

28 of title 28, or any other habeas corpus provision, and sections 1361

1 and 1651 of such title 8, no court shall have jurisdiction to hear any

cause or claim on behalf of any alien arising from any decision or

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action by the Attorney General to commence proceedings, adjudicate

cases, or execute removal orders against any alien under this chapter.

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4 8 U.S.C. § 1252(g). Dismissal of claims for which section 1252(g) strips subject matter

5 jurisdiction must be with prejudice, because there is nothing petitioner could do to “rectify” the

6 statutorily mandated lack of jurisdiction. See, e.g., Yongping Zhou v. Holder, No. CV 12-08508,

7 2013 WL 3923446, *4 n. 2 (C.D. Cal. July 26, 2013).

8 Title 8 U.S.C. section 1252(g) jurisdiction-stripping applies to discretionary decisions by

9 the Attorney General to commence proceedings, to adjudicate cases, or to execute removal

10 orders. INS v. St. Cyr, 533 U.S. 289, 312 n. 34 (2001); see also, e.g., Vilchiz–Soto v. Holder, 688

11 F.3d 642, 644 (9th Cir. 2012) (holding that 1252(g) barred jurisdiction over action challenging the

12 denial of a motion to reopen removal proceedings and to reconsider denial of application to

13 cancel removal). Plaintiff’s challenge to the denial of a stay of removal is barred in this court by

14 section 1252(g). See Id. Likewise, to the extent plaintiff seeks relief in the form of being granted

15 a U–Visa, this suit does not authorize such relief. See Lee v. Holder, 599 F.3d 973, 975–76 (9th

16 Cir. 2010) (holding that USCIS has “sole jurisdiction” over Plaintiff's claims of eligibility for a

17 U–Visa pursuant to 8 C.F.R. § 214.14(c)(1)); Aguirre–Palacios v. Doe No. 1, No. No. 13-cv-

18 3103, 2014 WL 584265, at *5 (S.D. Cal. Feb. 11, 2014) (the “Court’s general federal question

19 jurisdiction… does not extend so far as to confer further jurisdiction over questions of Plaintiff’s

20 eligibility for a U–Visa under 8 U.S.C. § 1101(a)(15)(U)”).

21 B. No Cognizable Claim against the Federal Defendants

22 To plead a violation under 42 U.S.C. § 1983, a plaintiff must allege facts from which it

23 may be inferred that (1) plaintiff was deprived of a federal right, and (2) the person who deprived

24 plaintiff of that right acted under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

25 Federal officials do not ordinarily act under color of state law. Accordingly, constitutional

26 violations by federal officials are generally beyond the reach of section 1983.

27 Under some circumstances, a suit under Bivens v. Six Unknown Named Agents of Federal

28 Bureau of Narcotics, 403 U.S. 388 (1971), may be brought against federal officials in their

1 individual capacities. Here, however, plaintiff seeks to name the Department of Homeland

2 Security and the Immigration and Customs Enforcement Agency (“ICE”). Under the doctrine of

3 sovereign immunity, a Bivens action will not lie against the United States, agencies of the United

4 States, or federal agents in their official capacity. See FDIC v. Meyer, 510 U.S. 471, 486 (1994);

5 Cato v. United States, 70 F.3d 1103, 1110-11 (9th Cir. 1995).

6 Although sovereign immunity does not bar damages actions against federal officials in

7 their individual capacities, Terrell v. Brewer, 935 F.2d 1015, 101 (9th Cir. 1991), the complaint

8 fails to allege participation in any constitutional violation by defendant Johnathan Kevin Ross,

9 who is alleged to be a trial attorney for the US Division Office of Immigration Litigation.

10 Maintaining a Bivens claim requires an actual connection or link between each defendant’s

11 actions and the harm allegedly done to the plaintiff. See Monell v. Department of Social Services,

12 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person ‘subjects’ another to the

13 deprivation of a constitutional right, if he does an affirmative act, participates in another’s

14 affirmative act or omits to perform an act which he is legally required to do that causes the

15 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). A

16 defendant cannot be liable unless an affirmative link or connection exists between that

17 defendant’s actions and the claimed injury to plaintiff. May v. Enomoto, 633 F.2d 164, 167 n. 3

18 (9th Cir.1980); Johnson, 588 F.2d at 743. As the complaint fails to adequately link defendant

19 Ross’s actions to any alleged harms, a Bivens a claim against Ross is not cognizable.

20 C. Excessive Force in Violation of Due Process (42 U.S.C. § 1983)

21 Plaintiff alleges the events of March 17, 2020 involving Officer Morgan occurred while

22 she was a detainee at Yuba County Jail in the custody of ICE. Constitutional questions regarding

23 the conditions and circumstances of plaintiff’s confinement are properly raised under the Due

24 Process Clause of the Fourteenth Amendment. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239,

25 244, 77 (1983); Bell v. Wolfish, 441 U.S. 520, 535 (1979); Oregon Advocacy Ctr. v. Mink, 322

26 F.3d 1101, 1120 (9th Cir. 2003). The due process rights of pretrial detainees are “at least as great

27 as the Eighth Amendment protections available to a convicted prisoner” Revere, 463 U.S. at 244.

28 Thus, while the Eighth Amendment provides a minimum standard of care for detainees, plaintiff’s

1 rights while detained in custody are determined under the Due Process Clause of the Fourteenth

2 Amendment rather than the Eighth Amendment’s protection against cruel and unusual

3 punishment. Gibson v. County of Washoe, 290 F.3d 1175, 1197 (2001) (overruled on other

4 grounds by Castro v. County of Los Angeles, 833 F.3d 1060 (2016)).

5 The constitution does not prohibit the use of reasonable force by officers. Tatum v. City &

6 County of San Francisco, 441 F.3d 1090, 1095 (9th Cir.2006). Whether force used was excessive

7 depends on “whether the officers’ actions [were] ‘objectively reasonable’ in light of the facts and

8 circumstances confronting them, without regard to their underlying intent or motivation.” Graham

9 v. Connor, 490 U.S. 386, 397 (1989); Tatum, 441 F.3d at 1095; Lolli v. County of Orange, 351

10 F.3d 410, 415 (9th Cir. 2003). The proper inquiry balances the nature and quality of the intrusion

11 against the countervailing governmental interests at stake. Graham, 490 U.S. at 396; Lolli, 351

12 F.3d at 415. The “reasonableness” of a particular use of force must be judged from the

13 perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. ....

14 “Not every push or shove, even if it may later seem unnecessary in the peace of a judge's

15 chambers,” violates the Fourth Amendment. Graham, 490 U.S. at 396 (citations omitted).

16 Here, although plaintiff’s factual allegations appear adequate to state a valid claim against

17 Officer Morgan for the use of excessive force, plaintiff cannot proceed with this claim as it is

18 currently pleaded because the complaint does not seek any relief that this court can grant. The

19 only relief requested in the complaint for Officer Morgan’s use of force is that plaintiff’s U-visa

20 be granted and/or that removal proceedings be stayed. As set forth above, this court cannot grant

21 the requested relief. If plaintiff wishes to proceed with an excessive force claim under 42 U.S.C. §

22 1983 for money damages, plaintiff must file an amended complaint that pleads such a claim and

23 seeks money damages for relief.

24 D. No Cognizable Claim against Sheriff’s Department

25 “Municipalities and other local government units... [are] among those persons to whom §

26 1983 applies.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). However, a municipal

27 entity or a municipal department is liable under section 1983 only if plaintiff shows that her

28 constitutional injury was caused by employees acting pursuant to the municipality’s policy or

1 custom. See Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 964 (9th Cir. 2008). “[A]n act

2 performed pursuant to a ‘custom’ that has not been formally approved by an appropriate

3 decisionmaker may fairly subject a municipality to liability on the theory that the relevant

4 practice is so widespread as to have the force of law.” Board of Cty. Comm’rs. of Bryan Cty. v.

5 Brown, 520 U.S. 397, 404 (1997). A local governmental entity may also be liable if it has a

6 “policy of inaction and such inaction amounts to a failure to protect constitutional rights.” Oviatt

7 v. Pearce, 954 F.2d 1470, 1474 (9th Cir.1992) (citing City of Canton v. Harris, 489 U.S. 378

8 (1989)); see also Monell, 436 U.S. at 690–91. The custom or policy of inaction must be the result

9 of a conscious or deliberate choice to follow a course of action made from among various

10 alternatives by the official or officials responsible for establishing final policy with respect to the

11 subject matter in question. City of Canton, 489 U.S. at 389; Oviatt, 954 F.2d at 1477 (quoting

12 Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986) (plurality opinion)).

13 Here, the complaint contains no allegations that plaintiff was injured as a result of

14 employees acting pursuant to any policy or custom of the Yuba County Sheriff’s Department.

15 Accordingly, there is no cognizable claim against the Yuba County Sheriff’s Department.

16 E. Request to File Electronically

17 Plaintiff has requested to file case documents electronically. (ECF No. 4.) In support of

18 the request, plaintiff states she experiences difficulty due to the COVID-19 pandemic. Plaintiff

19 also states she does not live near the court, does not drive, and is dependent on others for

20 transportation.

21 Generally, “any person appearing pro se may not utilize electronic filing except with the

22 permission of the assigned Judge or Magistrate Judge.” See E.D. Cal. L.R. 133(b)(2) (emphasis in

23 original). The court does not find good cause to deviate from the general rule at this time. Plaintiff

24 may use the United States mail to send documents to the court for filing. Plaintiff may also

25 request extensions of time as necessary and appropriate. The court acknowledges the challenges

26 faced by a pro se plaintiff in meeting court deadlines when receiving service of court-filed

27 documents by mail and filing documents by mail. The court will generally seek to accommodate

28 circumstances requiring extensions of time in such cases. At the current stage, however, the

1 | motion to file electronically will be denied.

2 V. CONCLUSION

3 The complaint must be dismissed for the reasons set forth herein. The court will grant

4 | plaintiff leave to file an amended complaint. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th

5 || Cir. 1995) (“Unless it is absolutely clear that no amendment can cure the defect . . . a pro se

6 || litigant is entitled to notice of the complaint’s deficiencies and an opportunity to amend prior to

7 || dismissal of the action.”).

8 If plaintiff elects to file an amended complaint, it shall be clearly captioned “First

9 || Amended Complaint” and shall cure the deficiencies identified herein. Plaintiff is informed that

10 | Local Rule 220 requires that an amended complaint be complete in itself without reference to any

11 | prior pleading. Therefore, in any amended complaint, as in an original complaint, each claim and

12 || the involvement of each defendant must be sufficiently alleged. See Loux v. Rhay, 375 F.2d 55,

13 | 57 (9th Cir. 1967). If plaintiff is unable or unwilling to cure the complaint’s deficiencies, then

14 | plaintiff may file a notice of voluntary dismissal.

15 In accordance with the above, IT IS ORDERED:

16 1. Plaintiffs request to proceed in forma pauperis (ECF No. 2) is granted;

17 2. Plaintiffs request to file electronically (ECF No. 4) is denied;

18 3. Plaintiff's motion for a hearing (ECF No. 5) is denied;

19 4. Plaintiff's complaint (ECF No. 1) is dismissed; and

20 5. Plaintiffis granted thirty days from the date of service of this order to file an amended

21 || complaint that complies with the requirements of the Federal Rules of Civil Procedure and the

22 || Local Rules of Practice; the amended complaint must bear the docket number assigned this case

23 || and must be labeled “First Amended Complaint”; failure to file an amended complaint in

24 || accordance with this order will result in a recommendation that this action be dismissed.

25 | Dated: August 18, 2021 □□ / dp ai

26 CAROLYNK. DELANEY

27 |g rerroira?1ev1208 screen UNITED STATES MAGISTRATE JUDGE

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