Gonzalez v. U.S. Customs and Border Protection

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 ANDRES RODRIGUEZ GONZALEZ, Case No.: 21-CV-1558 TWR (DEB)

12 Plaintiff,

ORDER (1) GRANTING MOTION TO

13 v. PROCEED IN FORMA PAUPERIS,

(2) DISMISSING WITHOUT

14 U.S. CUSTOMS AND BORDER

PREJUDICE FIRST AMENDED

PROTECTION,

15 COMPLAINT PURSUANT TO

Defendant. 28 U.S.C. § 1915(e)(2)(B)(ii), AND

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(3) DENYING WITHOUT

17 PREJUDICE MOTION FOR

APPOINTMENT OF COUNSEL

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19 (ECF Nos. 2, 3)

20 Presently before the Court are Plaintiff Andres Rodriguez Gonzalez’s First

21 Amended Complaint (“FAC,” ECF No. 5) and renewed Motions to Proceed in Forma

22 Pauperis (“IFP”) (“IFP Mot.,” ECF No. 6) and for Appointment of Counsel (“Counsel

23 Mot.,” ECF No. 8). For the reasons explained below, the Court GRANTS Plaintiff’s IFP

24 Motion, DISMISSES WITHOUT PREJUDICE his First Amended Complaint, and

25 DENIES WITHOUT PREJUDICE his Counsel Motion.

26 MOTION TO PROCEED IN FORMA PAUPERIS

27 Plaintiff requests leave to proceed IFP, attesting that his “monthly expenses absorb

28 all [his] money” and that he “recently had a bout of illness and cannot afford [his]

1 medical and dental expenses much less legal expenses.” (See IFP Mot. at 5.) All parties

2 instituting any civil action, suit, or proceeding in a district court of the United States,

3 except an application for a writ of habeas corpus, must pay filing and administration fees

4 totaling $402.1 28 U.S.C. § 1914(a). A court may, however, in its discretion, allow a

5 plaintiff to proceed without paying these fees if the plaintiff seeks leave to proceed IFP

6 by submitting an affidavit demonstrating the fees impose financial hardship. See 28

7 U.S.C. § 1915(a); Escobeda v. Applebees, 787 F.3d 1226, 1234 (2015). Although the

8 statute does not specify the qualifications for proceeding IFP, the plaintiff’s affidavit

9 must allege poverty with some particularity. Escobeda, 787 F.3d at 1234. Granting a

10 plaintiff leave to proceed IFP may be proper, for example, when the affidavit

11 demonstrates that paying court costs will result in a plaintiff’s inability to afford the

12 “necessities of life.” Id. The affidavit, however, need not demonstrate that the plaintiff is

13 destitute. Id.

14 Here, Plaintiff’s calculation of his monthly expenses of $1,868 exceeds his

15 monthly income of $1,830, (see IFP Mot. at 2, 4–5), and Plaintiff has limited assets and

16 savings. (See id. at 2–3.) Because paying the court costs associated with Plaintiff’s

17 action will result in his inability to afford the necessities of life, the Court GRANTS

18 Plaintiff’s IFP Motion.

19 SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)

20 I. Standard of Review

21 The Court must screen every civil action brought pursuant to 28 U.S.C. § 1915(a)

22 and dismiss any case it finds “frivolous or malicious,” “fails to state a claim on which

23 relief may be granted,” or “seeks monetary relief against a defendant who is immune

24 from relief.” 28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845

25 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to

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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52.

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See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14

28 (eff. June 1, 2016)). The additional $52 administrative fee does not apply to persons granted leave to

1 prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (noting

2 that 28 U.S.C. § 1915(e) “not only permits but requires a district court to dismiss an in

3 forma pauperis complaint that fails to state a claim”). As amended by the Prison

4 Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(e)(2) mandates that the court

5 reviewing an action filed pursuant to the IFP provisions of section 1915 make and rule on

6 its own motion to dismiss before directing the Marshal to effect service pursuant to

7 Federal Rule of Civil Procedure 4(c)(3). See Fed. R. Civ. P. 4(c)(3); Navarette v. Pioneer

8 Med. Ctr., No. 12-cv-0629-WQH (DHB), 2013 WL 139925, at *1 (S.D. Cal. Jan. 9,

9 2013).

10 All complaints must contain a “short and plain statement of the claim showing that

11 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

12 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

13 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

14 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). “[D]etermining whether a

15 complaint states a plausible claim is context-specific, requiring the reviewing court to

16 draw on its experience and common sense.” Iqbal, 556 U.S. at 663–64 (citing Twombly,

17 550 U.S. at 556).

18 “When there are well-pleaded factual allegations, a court should assume their

19 veracity, and then determine whether they plausibly give rise to an entitlement of relief.”

20 Iqbal, 556 U.S. at 679. “[W]hen determining whether a complaint states a claim, a court

21 must accept as true all allegations of material fact and must construe those facts in the

22 light most favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.

23 2000); see also Andrews v. King, 393 F.3d 1113, 1121 (9th Cir. 2005); Barren v.

24 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“The language of § 1915(e)(2)(B)(ii)

25 parallels the language of Federal Rule of Civil Procedure 12(b)(6).”).

26 “While factual allegations are accepted as true, legal conclusions are not.”

27 Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June

28 28, 2012) (citing Iqbal, 556 U.S. at 678). Courts cannot accept legal conclusions set forth

1 in a complaint if the plaintiff has not supported her contentions with facts. Id. (citing

2 Iqbal, 556 U.S. at 679).

3 Courts have a duty to construe a pro se litigant’s pleadings liberally. See Karim-

4 Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). In giving liberal

5 interpretation to a pro se complaint, however, a court may not “supply essential elements

6 of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673

7 F.2d 266, 268 (9th Cir. 1982). The district court should grant leave to amend if it appears

8 “at all possible that the plaintiff can correct the defect,” unless the court determines that

9 “the pleading could not possibly be cured by the allegation of other facts.” Lopez v.

10 Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc) (citing Doe v. United States, 58

11 F.3d 494, 497 (9th Cir. 1995); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 701 (9th

12 Cir. 1990)).

13 II. Plaintiff’s Factual Allegations

14 Plaintiff contends that, on August 21, 2021, U.S. Customs and Border Protection

15 (“CBP”) seized his vehicle, a 2006 Saturn Vue, VIN: 5GZCZ33DX6S845758 (the

16 “Vehicle”), and cellphone while he was crossing the San Ysidro Port of Entry. (See FAC

17 ¶¶ 2, 9.) Plaintiff was charged under 18 U.S.C. § 545, 21 U.S.C. §§ 844 and 952(a), and

18 49 U.S.C. § 80302 for “transportation, concealment or facilitated the sale, receipt,

19 possession, or importation of 7.90 kgs. Methamphetamine,” (see id. ¶ 3), but was released

20 from custody and allowed to return home. (See id. ¶ 5.2)

21 CBP informed Plaintiff that he could recover his possessions by filing a petition,

22 (see id. ¶ 8), but Plaintiff’s petition was denied. (See id. ¶ 10.) Plaintiff the hired an

23 attorney for $3,500 to assist him with a supplemental petition, but Plaintiff was informed

24 that he would have to sign a “Hold Harmless Agreement” with CBP before his property

25 would be released. (See id. ¶ 11.)

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2 Although Plaintiff references two exhibits to his First Amended Complaint—one related to his release

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from custody, (see FAC ¶ 5), and another regarding correspondence with his counsel concerning his

28 supplemental petition, (see id. ¶ 11)—they cannot be located on the docket and appear not to have been

1 Plaintiff explains that he “do[es] not have the money to pay for the release of [his

2 V]ehicle and [he is] reticent to sign a Hold Harmless Agreement to the U.S. Customs and

3 Border Protection which would absolve them.” (See id. ¶ 14.) Further, his “concern even

4 more than the return of [his] property is the fact that [he] ha[s] these charges on [his]

5 record [with CBP] of which [he is] not guilty.” (See id. ¶ 13.) Accordingly, Plaintiff

6 requests the release of his Vehicle without paying the storage fee, the “clear[ing]” of his

7 arrest record with CBP, reimbursement for the $3,500 he expended on his attorney and

8 $1,200 he incurred in transportation costs, and damages for his pain and suffering. (See

9 id. at 2.)

10 III. Analysis

11 Through this action, Plaintiff generally seeks return of his Vehicle from CBP. (See

12 generally FAC.) Although it is unclear from the face of the First Amended Complaint

13 what federal law Plaintiff claims CBP has violated, the Court construes Plaintiff’s First

14 Amended Complaint as alleging two causes of action (1) under the civil forfeiture statute

15 for the return of his vehicle, see 18 U.S.C. § 981(a)(1)(B)(ii) (indicating that property

16 “used to facilitate” “the manufacture, importation, sale, or distribution of a controlled

17 substance” “is subject to forfeiture to the United States”); and (2) for expungement of his

18 arrest record with CBP.

19 As for the civil forfeiture cause of action, because Plaintiff’s First Amended

20 Complaint explicitly references a “petition,” (see FAC ¶¶ 8, 10, 11), the Court assumes

21 that Plaintiff elected to proceed administratively with CBP under 18 U.S.C.

22 § 983(f)(3)(A) and 19 C.F.R. § 171, rather than legally by filing a claim pursuant to 18

23 U.S.C. § 983(a)(2) and 19 C.F.R. § 162.94. Consequently, Plaintiff “waived the

24 opportunity for judicial forfeiture proceedings,” see Conservation Force v. Salazar, 646

25 F.3d 1240, 1243 (9th Cir. 2011), unless “the notice of forfeiture was not received.” See

26 id. at 1242 (citing 18 U.S.C. § 983(e)); see also Plumhof v. U.S. Customs & Border

27 Patrol, No. 12CV2521 AJB NLS, 2013 WL 2295666, at *7 (S.D. Cal. May 24, 2013)

28 (concluding that, because the plaintiff had elected to proceed administratively, the court

1 lacked subject merit of the merits of the plaintiff’s complaint and could “only consider

2 whether [the p]laintiff received proper and timely notice of the seizure of her Vehicle”).

3 Plaintiff fails clearly to allege whether he received the requisite notice of the forfeiture

4 pursuant to 18 U.S.C. § 983(a)(1)(A)(i). The Court therefore concludes that Plaintiff has

5 failed to establish that this Court has subject-matter jurisdiction over his claim for the

6 return of his Vehicle.

7 Turning to Plaintiff’s request for expungement, Plaintiff faces several hurdles.

8 First, it is unclear pursuant to what authority the Court can grant Plaintiff the relief he

9 seeks. See, e.g., United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991) (reversing and

10 remanding where “there was no statutory authority for the district court’s expunction

11 order”). Second, Plaintiff fails to establish Article III standing because he does not allege

12 any facts showing that his arrest record “constitutes an ongoing injury or poses any

13 likelihood of future injury.” See Phillips v. United States, No. 219CV06338SVWJEM,

14 2021 WL 2587961, at *10 (C.D. Cal. June 22, 2021). Third and finally, Plaintiff

15 indicates that he has been criminally charged under several federal criminal statutes. (See

16 FAC ¶ 3.) It is unclear from the First Amended Complaint whether Plaintiff is facing

17 prosecution or whether the charges have been dropped. Consequently, even if Plaintiff

18 could state a viable claim for relief, the Court would be obligated “to stay the civil action

19 until the criminal case or the likelihood of a criminal case is ended.” Wallace v. Kato,

20 549 U.S. 384, 394 (2007) (first citing Heck v. Humphrey, 512 U.S. 477, 487–88, n.8

21 (1994); then citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 730 (1996)); see also

22 Combs v. Ribac, No. 317CV02381WQHBGS, 2018 WL 1185266, at *4 (S.D. Cal.

23 Mar. 7, 2018).

24 Accordingly, the Court DISMISSES WITHOUT PREJUDICE Plaintiff’s First

25 Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.

26 MOTION FOR APPOINTMENT OF COUNSEL

27 Finally, Plaintiff requests that the Court appoint him counsel because he has

28 “limited income and can no longer afford to pay attorney fees or court costs.” (Counsel

1 ||Mot. at 3.) “Generally, a person has no right to counsel in civil actions.” Palmer vy.

2 || Valdez, 560 F.3d 965, 970 (9th Cir. 2009). But under 28 U.S.C. § 1915(e)(1), a court

3 ||may “appoint counsel for indigent civil litigants” based on a showing of “exceptional

4 ||circumstances.” Jd. (citing Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th

5 || Cir.2004), cert. denied, 545 U.S. 1128 (2005)). In determining whether exceptional

6 || circumstances exist, the court considers (1) the “likelihood of success on the merits” and

7 ||(2) “the ability of the petitioner to articulate his claims pro se in light of the complexity

8 the legal issues involved.” Jd. (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.

9 |} 1983)).

10 Because the Court has dismissed without prejudice Plaintiffs First Amended

11 ||Complaint, the Court determines that Plaintiff has failed to establish a likelihood of

12 ||}success on the merits at this time. Accordingly, the Court DENIES WITHOUT

13 || PREJUDICE Plaintiff's Motion for Appointment of Counsel.

14 CONCLUSION

15 In light of the foregoing, the Court GRANTS Plaintiff's Motion to Proceed IFP

16 ||(ECF No. 6) but DISMISSES WITHOUT PREJUDICE Plaintiff's First Amended

17 ||Complaint (ECF No. 5) pursuant to 28 U.S.C. § 1915(e)(2)(B)Gi1) and DENIES

18 || WITHOUT PREJUDICE Plaintiff's Motion for Appointment of Counsel (ECF No. 8).

19 || Within thirty (30) days from the date of this Order, Plaintiff may file an amended

20 complaint curing the pleading defects identified in this Order. Should Plaintiff fail timely

21 || to file an amended complaint, this action will be dismissed without prejudice.

22 IT IS SO ORDERED.

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Dated: October 21, 2021 ——

: Tan (\obn—

Honorable Todd W. Robinson

26 United States District Court

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