noting that screening pursuant to § 1915A “incorporates the familiar 19 standard applied in the context of failure to state a claim under Federal Rule of Civil 20 Procedure 12(b)(6)”
How later courts described this case
- noting that screening pursuant to § 1915A “incorporates the familiar 19 standard applied in the context of failure to state a claim under Federal Rule of Civil 20 Procedure 12(b)(6)”
- “civil detainee” is not a “prisoner” 13 within the meaning of the PLRA
- holding 14 that “[s]ection 1915 typically requires the reviewing court to exercise its sound discretion 15 in determining whether the affiant has satisfied the statute’s requirement on indigency”
- holding that a detainee of the Immigration and Naturalization 11 Service (“INS”) is not a prisoner for the purpose of the PLRA filing fee provision
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 JUAN SANCHEZ-RIVERA, Case No. 22-cv-1254-BAS-BGS
Reg. No. 073-830-803
12
ORDER:
Plaintiff,
13
v. (1) GRANTING MOTION TO
14
PROCEED IN FORMA
UNITED STATES OF AMERICA,
15 PAUPERIS [ECF No. 2]; AND
Defendant.
16
(2) DIRECTING U.S. MARSHAL TO
17
EFFECT SERVICE OF
18 COMPLAINT PURSUANT TO 28
U.S.C. § 1915(d) AND Fed. R. Civ.
19
P. 4(c)(3)
20
21
22
23 Juan Sanchez-Rivera (“Plaintiff”), a federal immigration detainee at the Imperial
24 Regional Detention Facility (“IRDF”) in Calexico, California, and proceeding pro se, has
25 filed a civil action (“Compl.”), alleging claims under the Federal Tort Claims Act
26 (“FTCA”), 28 U.S.C. § 1346 and § 2674. (Compl., ECF No. 1.) In addition, Plaintiff seeks
27 to proceed in forma pauperis (“IFP”). (IFP Mot., ECF No. 2.) For the reasons set forth
28
1 below, the Court GRANTS the IFP Motion and finds Plaintiff has alleged an FTCA claim
2 sufficient to survive pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
3 I. IFP Motion
4 A party who institutes a civil action, suit, or proceeding in a district court of the
5 United States, except for an application for writ of habeas corpus, must pay a filing fee of
6 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to
7 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
8 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
9 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
10 Indigency is the benchmark for whether a plaintiff qualifies for IFP status. See
11 Fernandez v. Madden, No. 22-cv-0446-BAS-WVG, 2022 WL 3109941, at *1 (S.D. Cal.
12 Aug. 4, 2022). The determination of indigency falls within the district court’s sound
13 discretion. See Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (holding
14 that “[s]ection 1915 typically requires the reviewing court to exercise its sound discretion
15 in determining whether the affiant has satisfied the statute’s requirement on indigency”),
16 rev’d on other grounds, 506 U.S. 194 (1993). It is well-settled that a party need not be
17 completely destitute to proceed IFP. See Adkins v. E.I. DuPont de Nemours & Co., 335
18 U.S. 331, 339–40 (1948). To qualify for IFP status, “an affidavit [of poverty] is sufficient
19 which states that one cannot because of his poverty pay or give security for costs . . . and
20 still be able to provide himself and the dependents with the necessities of life.” Id. at 339.
21 However, “the same even-handed care must be employed to assure that federal funds are
22 not squandered to underwrite, at public expense . . . the remonstrances of a suitor who is
23 financially able, in whole or in part, to pull his own oar.” Temple v. Ellerthorpe, 586 F.
24 Supp. 848, 850 (D.R.I. 1984).
25
26 1 In addition to the $350 statutory fee, civil litigants must pay an administrative fee of $52. See 28
U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff.
27 Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to proceed
IFP. Id.
28
1 “Unlike other indigent litigants, prisoners proceeding IFP must pay the full amount
2 of filing fees in civil actions and appeals pursuant to the [Prison Litigation Reform Act
3 (“PLRA”)].” Agyeman v. Immigration & Naturalization Servs., 296 F.3d 871, 886 (9th
4 Cir. 2002). As defined by the PLRA, a “prisoner” is “any person incarcerated or detained
5 in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent
6 for, violations of criminal law or the terms and conditions of parole, probation, pretrial
7 release, or diversionary program.” 28 U.S.C. § 1915(h). However, a person detained and
8 subject to removal or deportation—like Plaintiff here—is not a “prisoner” under the PLRA.
9 See Agyeman, 296 F.3d at 886; Ojo v. Immigration & Naturalization Servs., 106 F.3d 680,
10 682–83 (5th Cir. 1997) (holding that a detainee of the Immigration and Naturalization
11 Service (“INS”) is not a prisoner for the purpose of the PLRA filing fee provision); cf.
12 Andrews v. King, 398 F.3d 1113, 1122 (9th Cir 2005) (“civil detainee” is not a “prisoner”
13 within the meaning of the PLRA).
14 Here, Plaintiff alleges that he is “‘civilly’ detained under the authority of
15 Immigration & Customs Enforcement (“ICE”)” at IRDF, where he has been “incarcerated
16 the past three years pending removal proceedings.” (Compl. ¶ 1.) Accordingly, Plaintiff
17 is not a “prisoner” under the PLRA, and the filing fee provisions of 28 U.S.C. § 1915(b)
18 are inapplicable to this case. See Agyeman, 296 F.3d at 886. Therefore, the Court need
19 only review Plaintiff’s affidavit of assets, just as it would for any other non-prisoner litigant
20 seeking IFP status.
21 Plaintiff attests he is entirely destitute. He avers that he is unemployed, does not
22 receive money from any source, does not have a savings or checking account, does not own
23 any assets of value, such as real estate, an automobile, or other similar items, and has been
24 in ICE custody at IRDF for the past three years. (IFP Mot. at 1–3; see Compl. ¶ 1.)
25 Accordingly, the Court concludes Plaintiff has established he is unable to pay the fees or
26 post the securities required to maintain a civil action and, thus, GRANTS the IFP Motion.
27 See S.D. Cal. Civ. L.R. 3.2(d).
28
1 II. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)
2 A. Standard of Review
3 A complaint filed by any person proceeding IFP is subject to sua sponte dismissal if
4 it is “frivolous, malicious, fail[s] to state a claim upon which relief may be granted, or
5 seek[s] monetary relief from a defendant immune from such relief.” 28 U.S.C.
6 § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding
7 that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”); Lopez v.
8 Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits,
9 but requires a district court to dismiss an in forma pauperis complaint that fails to state a
10 claim.”). “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious
11 suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920
12 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681
13 (7th Cir. 2012)).
14 “The standard for determining whether a plaintiff has failed to state a claim upon
15 which relief can be granted under 28 U.S.C. [§ 1915(e)(2)(B)] is the same as the Federal
16 Rule of Civil Procedure [(“Rule”)] 12(b)(6) standard for failure to state a claim.” Watison
17 v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113,
18 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar
19 standard applied in the context of failure to state a claim under Federal Rule of Civil
20 Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual
21 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
22 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at
23 1121. “Determining whether a complaint states a plausible claim for relief [is] . . . a
24 context-specific task that requires the reviewing court to draw on its judicial experience
25 and common sense.” Iqbal, 556 U.S. at 678. The “mere possibility of misconduct” or
26 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this
27 plausibility standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.
28 2009).
1 While the court “ha[s] an obligation where the petitioner is pro se, particularly in
2 civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit
3 of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v.
4 Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential elements
5 of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673
6 F.2d 266, 268 (9th Cir. 1982).
7 B. Plaintiff’s Allegations2
8 On April 1, 2020, Plaintiff, along with other detainees at IRDF, began a hunger strike
9 in protest of the facility’s “lack of precautionary measures relative to the COVID-19
10 pandemic.” (Compl. ¶ 32.) Later that morning, staff ordered an emergency lockdown.
11 (See id.) While Plaintiff was waiting for the lockdown to be lifted, he was physically
12 removed from his cell, had mechanical restraints applied to him, and was placed in the
13 facility’s “solitary confinement unit under fabricated charges of threats against staff and
14 inciting others to riot.” (Id. ¶ 33.) Plaintiff was later told these charges were based upon
15 the “accusations of two confidential sources.” (Id. ¶ 35.) IRDF personnel issued an
16 Investigative Report and Incident Report detailing the bases of these charges. (See id.
17 ¶ 41; see also Memorandum of Facility Administrator Sixto Marrero (“Marrero Memo.”),
18 Ex. E to Compl., ECF No. 1-6 (indicating “Sgt. Samantha Nelson” had prepared an
19 Investigative Report” laying out charges proposed against Plaintiff).)
20 On April 3, 2020, a hearing was held with respect to the charges levied against
21 Plaintiff. (See Compl. ¶ 45.) Following that hearing, and based upon its review of the
22 Incident Report and Investigative Report, IRDF’s Institution Disciplinary Panel (“IDP”)
23 concluded in a written report that “[n]o prohibited act was committed” and that
24 “‘[e]vidence [was] not enough to support [the] charges’ against Plaintiff.” (Compl. ¶ 45
25 (citing Hearing Report, Ex. D to Compl., ECF No. 1-5).) Nevertheless, citing the
26
27 2 These allegations all are taken from the Complaint. (ECF No. 1.) For this § 1915A screening,
the Court accepts as true all of Plaintiffs’ factual allegations. See Safe Air for Everyone v. Meyer, 373
28
1 Investigative Report, Marrero overruled the IDP’s determination and imposed a sanction
2 of “30 days of disciplinary detention” on April 6, 2020. (See Marrero Memo.; Compl. ¶
3 46.)
4 Plaintiff filed a grievance on April 15, 2020, challenging the sufficiency of the
5 evidence upon which the charges against him were premised. (See Compl. ¶ 47.) However,
6 his grievance was denied; Plaintiff alleges that in the document denying his grievance, the
7 assistant facility administrator “added untruthful uncorroborated details” not present in the
8 record. (See id.) Plaintiff attempted to file another grievance directly with ICE, but ICE
9 refused to “investigate, review [or] adjudicate Plaintiff’s grievance.” (Id. ¶¶ 49–52.)
10 Plaintiff alleges that the actions taken by IRDF officials against him constitute
11 “intentional tortious actions of assault, false imprisonment, and intentional infliction of
12 emotional pain.” (Compl. ¶ 53.) He alleges that he suffered “injuries, including physical
13 pain, emotional distress, physiological trauma, and mental deterioration” as a result of his
14 allegedly unwarranted segregated confinement. (Id. ¶ 54.) He brings this action against
15 the United States only, seeking compensatory damages in the amount of $3,000,000. (See
16 id.)
17 C. Analysis
18 The FTCA waives the United States’ sovereign immunity for claims arising out of
19 common law torts committed by federal employees. See United States v. Olson, 546 U.S.
20 43, 44 (2005). It “authorizes private tort actions against the United States ‘under
21 circumstances where the United States, if a private person, would be liable to the claimant
22 in accordance with the law of the place where the act or omission occurred.’” Id. (quoting
23 28 U.S.C. § 1346(b)(1)).
24 The FTCA explicitly prohibits claims “arising out of” an intentional tort, including
25 claims of false imprisonment and assault See 28 U.S.C. § 2680(h). However, that
26 limitation does not apply where, as here, the alleged perpetrator appears to be “a federal
27 investigative or law enforcement officer.” Black v. United States, No. C13-541RBL, 2013
28
1 WL 5214189, at *2 (W.D. Wash. Sept. 17, 2013). See also Millbrook v. United States,
2 568 U.S. 50, 57 (2013) (“The waiver effected by the law enforcement proviso extends to
3 acts or omissions of law enforcement officers that arise within the scope of their
4 employment, regardless of whether the officers are engaged in investigative or law
5 enforcement activity, or are executing a search, seizing evidence, or making an arrest.”).
6 Plaintiff’s allegations of wrongdoing in the Complaint sound principally in false
7 imprisonment. (See Compl. ¶¶ 45–46 (alleging Plaintiff was disciplined with 30-days in
8 segregated confinement despite being acquitted of the charges for which he was
9 disciplined).) Under California law, “[t]he tort of false imprisonment is the nonconsensual,
10 intentional confinement of a person, without lawful privilege, for an appreciable length of
11 time, however short.” Castro v. City of Hanford, 546 F. Supp. 2d 822, n.2 (E.D. Cal. Mar.
12 3, 2008) (citing City of Newport Beach v. Sasse, 9 Cal. App. 3d 803, 810 (1970)). Here,
13 Plaintiff alleges that he was placed in segregated disciplinary confinement for inciting a
14 riot and threatening an IRDF staff member with bodily harm, even though he was found
15 innocent of those charges following a hearing and review of the relevant reports by the
16 IDP. (Compl. ¶¶ 45–46.) He alleges that he served a 30-day sentence, during which he
17 was “housed in a cell by himself where he spent twenty-three hours a day and where
18 shackles and restraints w[ere] used on him every time he departed his cell,” and that he
19
20
3 Plaintiff avers that the perpetrators of the intentional torts forming the premise of this action
21 include Marrero, IRDF’s facility administrator, and facility security staff. (See Compl. ¶ 33, 46.)
Although the issue is not a settled one, prison officials and staff “appear to qualify as law enforcement
22 officers within the meaning of the FTCA.” James E. Pfander, Dicey’s Nightmare: An Essay on the Rule
of Law, 107 Cal. L. R. 737, 778 n.213 (June 2019) (citing Millbrook, 568 U.S. at 55 n.3); see also Chapa
23 v. U.S. Dep’t of Justice, 339 F.3d 388, 390 (5th Cir. 2003) (treating prison guards as law enforcement
officers for purposes of the intentional torts proviso).
24
That Plaintiff alleges IRDF is operated under contract with ICE by a “private corporation,”
25 Management and Training Corporation (“MTC”), and that the perpetrators of the intentional torts were
“private facility operators” (see, e.g., Compl. ¶ 1) does not appear to render FTCA’s law enforcement
26 proviso inapplicable here. See Agyeman, 390 F.3d at 1103–04 (opining that plaintiff, who was allegedly
assaulted and unlawfully restrained while held at an ICE detention facility operated by a private prisoner,
27 “could have brought a suit against the United States under the Federal Tort Claims Act,” as opposed to a
Bivens suit against the private corporation itself); see also Manriquez v. Huchins, No. 1:09-cv-00456-
28
1 suffered physical and emotional harm as a result. (Id. ¶¶ 3, 54.) These allegations are
2 sufficient to form the basis of a false imprisonment claim robust enough to satisfy the “low
3 threshold” for sua sponte screening, as required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b).
4 See Millbrook, 569 U.S. at 57; Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678.
5 * * * *
6 The Court observes that in July of 2020 Plaintiff brought an action in this district
7 based on virtually the same facts as the instant action. See Juan Sanchez-Rivera v. Jorge
8 Bribiesca, et al., 3:20-cv-1264-MMA-MSB (“Sanchez-Rivera I”).4 Crucially, Sanchez-
9 Rivera I was brought against ICE officials and MTC employees pursuant to Bivens v. Six
10 Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (“Bivens”),
11 as opposed to pursuant to the FTCA. United States District Judge Michael M. Anello
12 dismissed Sanchez-Rivera I, sua sponte, for failing to allege facts adequate to invoke the
13 requirements of a Bivens action. See Sanchez-Rivera I, ECF Nos. 5, 7.5 The reasons for
14 dismissal of Plaintiff’s Bivens claims in Sanchez-Rivera I do not bear upon whether
15 Plaintiff has adequately alleged an FTCA claim. Therefore, the Court will not dismiss this
16 action as duplicative.
17 III. Conclusion
18 Based on the foregoing, the Court:
19 1. GRANTS Plaintiff’s IFP Motion pursuant to 28 U.S.C. § 1915(a) (ECF No.
20 2).
21 2. DIRECTS the Clerk of the Court to issue a summons as to Plaintiff’s
22 Complaint (ECF No. 1) upon Defendant the UNITED STATES OF AMERICA and
23 forward it to Plaintiff. Because Plaintiff is suing the United States, he must serve
24 Defendant in accordance with Rule 4(i). See Fed. R. Civ. P. 4(i)(1). The Clerk is further
25
26 4 A court “may take notice of proceedings in other courts, both within and without the federal
judicial system, if those proceedings have a direct relation to matters at issue.” Bias v. Moynihan, 508 F.3d
27 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)).
5 Plaintiff subsequently filed an appeal to the United States Court of Appeals for the Ninth Circuit,
28
1 directed to include in Plaintiff’s IFP package two separate copies of this Order, Plaintiff’s
2 Complaint (ECF No. 1), the summons, and two blank USM Form 285s for Plaintiff’s use
3 in serving the United States via the United States Attorney for the Southern District of
4 California and the Attorney General of the United States in Washington, D.C. See Fed. R.
5 Civ. P. 4(i)(1)(A)(i). Upon receipt of this “IFP Package,” Plaintiff must complete the Form
6 285s as completely and accurately as possible, include addresses where the Defendant may
7 be served, see S.D. Cal. Civ. L.R. 4.1.c, and return them to the United States Marshal
8 according to the instructions the Clerk provides in the letter accompanying his IFP package,
9 by no later than September 30, 2022.
10 3. ORDERS the U.S. Marshal or deputy marshal to serve a copy of the
11 Complaint and summons upon Defendant the UNITED STATES OF AMERICA as
12 directed by Plaintiff on the USM Form 285s provided to him upon receipt, and in no case
13 later than November 30, 2022. The U.S. Marshal or deputy marshal must immediately
14 thereafter file proof of that service, or proof of his or her inability to execute service, with
15 the Clerk of the Court. All costs of that service will be advanced by the United States. See
16 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).
17 4. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to
18 serve upon Defendant the UNITED STATES OF AMERICA, or, if appearance has been
19 entered by counsel, upon Defendant’s counsel, a copy of every further pleading, motion,
20 or other document submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b).
21 Plaintiff must include with every original document he seeks to file with the Clerk of the
22 Court a Certificate of Service stating the manner in which a true and correct copy of that
23 document was served on Defendant or its counsel, and the date of that service. See S.D.
24 Cal. Civ. L.R. 5.2. Any document received by the Court which has not been properly filed
25 //
26 //
27 //
28 //
1 || with the Clerk, or which fails to include a Certificate of Service upon the Defendants, may
2 || be disregarded.
3 IT IS SO ORDERED.
4 A
5 || DATED: September 6, 2022 Ypilag (Lyohaa é
6 United States District Judge
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
~10-2