1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILLIAM JOSEPH NEILL, Case No.: 3:20-cv-01288-AJB-MSB Plaintiff, 12

ORDER:

v. 13

U.S. CUSTOMS AND BORDER (1) DISMISSING PLAINTIFF’S

14

PROTECTION ET AL., COMPLAINT WITH LEAVE TO

15 Defendants. AMEND, (Doc. No. 1); AND

16 (2) DENYING PLAINTIFF’S MOTION 17 FOR A PRELIMINARY INJUNCTION, (Doc. No. 4); AND 18

19 (3) DENYING AS MOOT PLAINTIFF’S IFP MOTION, (Doc. No. 20 2.) 21 22 The Court reviews pro se Plaintiff William Joseph Neill’s (“Plaintiff”) Complaint 23 under 28 U.S.C. § 1915(e), as required when a plaintiff files a motion to proceed in forma 24 pauperis (“IFP”). (Doc. Nos. 1–2.) Under this mandatory screening, the Court finds 25 Plaintiff’s Complaint does not state a plausible claim for relief. Thus, the Court DENIES 26 AS MOOT Plaintiff’s IFP motion, (Doc. No. 2), DENIES Plaintiff’s motion for 27 preliminary injunction, (Doc. No. 4), and DISMISSES Plaintiff’s Complaint WITH 28 LEAVE TO AMEND. (Doc. No. 1). 1 I. SCREENING UNDER 28 U.S.C. § 1915(e) 2 A. Legal Standard 3 Under 28 U.S.C. § 1915(e)(2), when reviewing an IFP motion, the Court must rule 4 on its own motion to dismiss before the complaint is served. See Lopez v. Smith, 203 F.3d 5 1122, 1127 (9th Cir. 2000). The Court must dismiss the complaint if it is frivolous, 6 malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief 7 from a defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 8 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (noting 28 U.S.C. § 1915(e)(2)(B) is “not 9 limited to prisoners”); Lopez, 203 F.3d at 1127 (“[§] 1915(e) not only permits but requires 10 a district court to dismiss an [IFP] complaint that fails to state a claim”). 11 “The standard for determining whether a plaintiff has failed to state a claim upon 12 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 13 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 14 1108, 1112 (9th Cir. 2012). To survive a motion to dismiss, the complaint must contain “a 15 short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 16 R. Civ. P. 8(a)(2). “[A] complaint must contain sufficient factual matter, accepted as true, 17 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 18 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007)). Detailed 19 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of 20 action, supported by mere conclusory statements, do not suffice.” Id. Accordingly, the 21 Court “may dismiss as frivolous complaints reciting bare legal conclusions with no 22 suggestion of supporting facts[.]” Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984) 23 (internal quotations omitted). 24 However, pro se pleadings are held to “less stringent standards than formal pleadings 25 drafted by lawyers” because pro se litigants are more prone to making errors in pleading 26 than litigants represented by counsel. Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal 27 quotations omitted); see Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded 28 by statute on other grounds. Thus, the Supreme Court states federal courts should liberally 1 construe the “‘inartful pleading’ of pro se litigants.” Eldridge v. Block, 832 F.2d 1132, 2 1137 (9th Cir. 1987) (quoting Boag v. MacDougall, 454 U.S. 364, 365 (1982)). 3 B. Background 4 Plaintiff files this action against the U.S. Customs and Border Protection (“CBP”) 5 and Fines, Penalties, and Forfeitures Officer Marcia A. Gomez, requesting an injunction 6 for the return of his 2001 Chevy Blazer (“Vehicle”) in addition to all documents contained 7 in the case file bearing Case No. 2019 2504 0019 3601. (Doc. No. 1 at 2, 4.) 8 On July 29 2019 at approximately 2:00 AM, Plaintiff attempted to cross his Vehicle 9 at the San Ysidro Port of Entry. (Doc. No. 1 at 5.) Upon this attempt, Plaintiff was sent to 10 secondary inspection where X-ray imaging revealed a spare tire filled with drugs under 11 Plaintiff’s car. (Id.) Plaintiff states at the time, he did not have a spare tire, and that this 12 drug-filled tire was mounted in place without his knowledge. (Id.) Plaintiff appears to have 13 been detained and arrested, and was interviewed at the San Ysidro Port of Entry. (Doc. No. 14 4 at 3.) Plaintiff says he was then “transported to downtown San Diego county jail.” (Id.) 15 Some days later, Plaintiff alleges he was taken to Chula Vista Superior Court, and the 16 charges against Plaintiff were dropped without Plaintiff ever entering the courtroom. (Id.) 17 After the notice of the dropped charges, Plaintiff states he was released from jail the next 18 day. (Id.) 19 Now that Plaintiff’s charges have been dropped, Plaintiff seeks the return of his 20 Vehicle that he alleges is in CBP’s possession. (Doc. No. 4.) Also, Plaintiff seeks “all 21 papers, X-ray images, photographs, official assay, DNA, and fingerprints found on the drug 22 tire.” (Doc. No. 4 at 4.) Plaintiff states he filed two Freedom of Information Act (“FOIA”) 23 requests regarding this information, with the first returned by Homeland Security, and the 24 second returned by CBP revealing no information found. (Id.) Furthermore, Plaintiff seeks 25 information regarding “the source of, and control of, and procedure to be removed from” 26 a purported list that requires Plaintiff always submit to secondary inspection, (id.) and “a 27 full and complete legible copy of all screen shots normally displayed and observed in 28 secondary inspection.” (Id. at 5.) 1 C. Discussion 2 1. Plaintiff’s Request for Return of the Vehicle 3 Plaintiff requests the return of the Vehicle allegedly in the possession of CBP 4 because the case against him in state court in Chula Vista was dismissed. However, 5 Plaintiff has failed to provide a violation of federal law that would allow the Court to grant 6 the relief Plaintiff is seeking. Here, notably missing from the Complaint are any allegations 7 of the procedures that were taken in attempt to get his Vehicle back, allegations that CBP 8 has refused to return the Vehicle, or any allegations of forfeiture proceedings instituted by 9 the government. Instead, Plaintiff states he is entitled to his Vehicle now that his state court 10 case has been dismissed. However, this bare allegation is insufficient to state a claim in 11 federal court. Therefore, Plaintiff’s Complaint is DISMISSED WITH LEAVE TO 12 AMEND. Plaintiff may amend his Complaint to address the foregoing deficiencies, 13 particularly to provide more information addressing what underlying law Defendants are 14 violating. See e.g., Calhoun v. City of Hercules Police Dep’t, No. 14-CV-01684-VC, 2014 15 WL 4966030, at *3 (N.D. Cal. Oct. 3, 2014), aff’d, 675 F. App’x 656 (9th Cir. 2017) 16 (“Calhoun alleges that the Hercules Police Department has refused to return his confiscated 17 firearm, despite the fact that he followed all the procedures laid out in California Penal 18 Code § 33850 et seq. and has a court order directing the Police Department to return it. 19 However, Calhoun has not alleged any corresponding violation of state or federal law.”). 20 2. Plaintiff’s Request for Documents 21 Next, Plaintiff seeks various documents from CBP relating to his incident at San 22 Ysidro Port of Entry. Again, like Plaintiff’s request for the return of his Vehicle, Plaintiff 23 does not provide a violation of federal law sufficient to state a viable claim for relief. Even 24 liberally construing Plaintiff’s request as a FOIA claim, Plaintiff has failed to demonstrate 25 he is entitled to relief. 26 “The basic purpose of FOIA is to ensure an informed citizenry, vital to the 27 functioning of a democratic society, needed to check against corruption and to hold the 28 1 governors accountable to the governed.” NLRB v. Robbins Tire & Co., 437 U.S. 214, 242 2 (1978). When a person requests a record from a federal agency and the agency withholds 3 the record, the person may bring suit in district court to enjoin the agency from withholding 4 the record and to order the production of any records improperly withheld. 5 U.S.C. 5 § 552(a)(4)(B); U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 6 U.S. 749, 755 (1989). Although the mandate of FOIA calls for broad disclosure of 7 government records, the Act represents a careful balance between “public rights and 8 agency obligations.” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 9 136, 150 (1980). As such, FOIA provides that any person has a right of access to federal 10 agency records, except to the extent that such records (or portions thereof) are protected 11 from disclosure by one of nine exemptions or by one of three special law enforcement 12 exclusions. See 5 U.S.C. § 552. To successfully assert a FOIA claim, the plaintiff must 13 show “that an agency has: (1) ‘improperly’; (2) ‘withheld’; (3) ‘agency records.’” Id. A 14 district court’s authority to implement judicial remedies and order the production of 15 improperly withheld documents can only be invoked if the agency has violated all three 16 requirements. See id. 17 Here, Plaintiff seeks (1) “all papers, X-ray images, photographs, official assay, 18 DNA, and fingerprints found on the drug tire,” (Doc. No. 4 at 4), (2) information regarding 19 “the source of, and control of, and procedure to be removed from” a purported list that 20 requires Plaintiff always submit to secondary inspection, (id.) and (3) “a full and complete 21 legible copy of all screen shots normally displayed and observed in secondary inspection.” 22 Plaintiff states he filed two Freedom of Information Act Requests, with the first returned 23 by Homeland Security, and the second sent to CBP revealed no information found. (Doc. 24 No. 4 at 4.) Based on these allegations, Plaintiff has not alleged a plausible FOIA claim. In 25 particular, the Complaint does not show that any agency has improperly withheld 26 information from Plaintiff. The Complaint shows that Plaintiff has submitted two FOIA 27 requests with the first request “returned” by Homeland Security. But there is a lack of detail 28 as to what was returned and if it amounted to a withholding of information. Additionally, 1 Plaintiff states the second FOIA request sent to CBP revealed no information was found. 2 However, these allegations do not establish that CBP withheld any information from 3 Plaintiff. With these deficiencies, Plaintiff has not stated a viable FOIA claim. Based on 4 the foregoing, Plaintiff’s FOIA claim is also DISMISSED with LEAVE TO AMEND. 5 3. Plaintiff’s Motion for Preliminary Injunction 6 As for Plaintiff’s request for an injunction, “[b]ecause the Court has dismissed 7 Plaintiff’s complaint for failure to state a claim, the Court denies his request for a 8 preliminary injunction on the ground that it is moot.” Acedo v. Abalos, No. 15-CV-2532- 9 H-BLM, 2016 WL 9687055, at *6 (S.D. Cal. Jan. 6, 2016). 10 II. MOTION TO PROCEED IN FORMA PAUPERIS 11 Plaintiff also moves to proceed IFP under 28 U.S.C. § 1915. All parties instituting 12 any civil action, suit, or proceeding in a district court of the United States, except an 13 application for writ of habeas corpus, must pay a filing fee of $400. See 28 U.S.C. 14 § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee only 15 if plaintiff is granted leave to proceed IFP under 28 U.S.C. § 1915(a). See Rodriguez v. 16 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). All actions sought to be filed IFP under § 1915 17 must be accompanied by an affidavit, signed by the applicant under penalty of perjury, that 18 includes a statement of all assets which shows inability to pay initial fees or give security. 19 Civ. L.R. 3.2.a. 20 However, even if a plaintiff meets the income requirement, the Ninth Circuit 21 indicates that leave to proceed in forma pauperis pursuant to 28 U.S.C. section 1915(a) is 22 properly granted only when plaintiff has demonstrated poverty and presented a claim that 23 is not factually or legally frivolous. See Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 24 1370 (9th Cir. 1987) (emphasis added). 25 For the reasons set forth above Plaintiff’s Complaint does not properly state a claim, 26 thus the Court DENIES Plaintiff’s IFP motion AS MOOT. 27 III. CONCLUSION 28 In light of the foregoing, the Court DENIES AS MOOT Plaintiff’s IFP motion, 1 || (Doc. No. 2) and DISMISSES Plaintiff's Complaint. (Doc. No. 1). “The court should give 2 leave [to amend] freely when justice so requires.” Fed. R. Civ. P. 15(a)(2). In the Ninth 3 || Circuit, “Rule 15’s policy of favoring amendments to pleadings should be applied with 4 || ‘extreme liberality,” United States v. Webb, 655 F.2d 977, 979 (9th Cir.1981), and “[t]his 5 || policy is applied even more liberally to pro se litigants.” Eldridge v. Block, 832 F.2d 1132, 6 || 1135 (th Cir.1987). A such, the Court provides Plaintiff LEAVE TO AMEND to address 7 deficiencies stated herein. Should Plaintiff wish, he may file an Amended Complaint 8 renewed IFP motion by September 3, 2020. 9 10 IT IS SO ORDERED. 11 Dated: August 7, 2020 © 12 Hon. Anthony J. attaglia 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28