1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 JUAN SANCHEZ-RIVERA, Case No. 20cv1264-MMA-MSB Reg. No. 073-830-803, 11

ORDER GRANTING MOTION TO

12 PROCEED IN FORMA PAUPERIS; Plaintiff,

13 vs. [Doc. No. 2] 14

DENYING MOTION FOR

15

JORGE BRIBIESCA; ALEX APPOINTMENT OF COUNSEL;

16 PALACIOS; SIXTO MARRERO; EDWARD E. RUIZ; NICK [Doc. No. 4] 17

RODRIGUEZ; JOSE BUILTEMAN;

18 GEORGE CORTEZ, DISMISSING CIVIL ACTION FOR 19 FAILING TO STATE A CLAIM

PURSUANT TO 28 U.S.C. §

20 Defendants. 1915(e)(2)(B)(ii) 21 22 23 Plaintiff Juan Sanchez-Rivera, a federal immigration detainee at the Imperial 24 Regional Detention Facility (“IRDF”) in Calexico, California, and proceeding pro se, has 25 filed a civil rights Complaint pursuant to Bivens v. Six Unknown Named Agents of 26 Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Doc. No. 1 (“Compl.”). In 27 addition, Plaintiff has filed a Motion to Proceed In Forma Pauperis (“IFP”), along with a 28 Motion to Appoint Counsel. See Doc. Nos. 2, 4. 1 I. Motion to Proceed IFP 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 8 “Unlike other indigent litigants, prisoners proceeding IFP must pay the full amount 9 of filing fees in civil actions and appeals pursuant to the PLRA [Prison Litigation Reform 10 Act].” Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002). As defined by the PLRA, a 11 “prisoner” is “any person incarcerated or detained in any facility who is accused of, 12 convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or 13 the terms and conditions of parole, probation, pretrial release, or diversionary program.” 14 28 U.S.C. § 1915(h). 15 A person detained and subject to removal or deportation, however, is not a 16 “prisoner” under § 1915(h). Agyeman, 296 F.3d at 886; Ojo v. INS, 106 F.3d 680, 682-83 17 (5th Cir.1997) (holding that a detainee of the Immigration and Naturalization Service is 18 not a prisoner for purposes of the PLRA filing fee provision); cf. Andrews v. King, 398 19 F.3d 1113, 1122 (9th Cir 2005) (“civil detainee” is not a “prisoner” within the meaning of 20 the PLRA). 21 Because Plaintiff is currently detained at IRDF as an immigration detainee, he does 22 not meet the definition of “prisoner” under 28 U.S.C. § 1915(h), and the filing fee 23 provisions of 28 U.S.C. § 1915(b) are not applicable to this case. Agyeman, 296 F.3d at 24 886. Therefore, the Court has reviewed Plaintiff’s affidavit of assets, just as it would for 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed 28 1 any other non-prisoner litigant seeking IFP status, and finds it is sufficient to show that he 2 is unable to pay the fees or post securities required to maintain a civil action. See CIVLR 3 3.2(d). Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 4 28 U.S.C. § 1915(a). 5 II. Motion to Appoint Counsel 6 Plaintiff requests that the Court appoint him counsel due to his indigence and the 7 complexity of the issues involved in this case. See Doc. No. 4 at 2. 8 All documents filed pro se are liberally construed, and “a pro se complaint, 9 however inartfully pleaded, must be held to less stringent standards than formal pleadings 10 drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. 11 Gamble, 429 U.S. 97, 106 (1976) (internal quotations omitted)). But there is no 12 constitutional right to counsel in a civil case; and Plaintiff’s FAC does not demand that 13 the Court exercise its limited discretion to request than an attorney represent him pro 14 bono pursuant to 28 U.S.C. § 1915(e)(1) at this stage of the case. See Lassiter v. Dept. of 15 Social Servs., 452 U.S. 18, 25 (1981); Agyeman v. Corr. Corp. of America, 390 F.3d 16 1101, 1103 (9th Cir. 2004). Only “exceptional circumstances” support such a 17 discretionary appointment. Terrell v. Brewer, 935 F.3d 1015, 1017 (9th Cir. 1991); 18 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Exceptional circumstances exist 19 where there is cumulative showing of both a likelihood of success on the merits and a 20 demonstrated inability of the pro se litigant to articulate his claims in light of their legal 21 complexity. Id. 22 As currently pleaded, Plaintiff’s Complaint demonstrates that while he may not be 23 formally trained in law, he nevertheless is fully capable of legibly articulating the facts 24 and circumstances relevant to his claims, which are typical and not legally “complex.” 25 Agyeman, 390 F.3d at 1103. Moreover, for the reasons discussed below, Plaintiff has yet 26 to show he is likely to succeed on the merits of the claims. Therefore, the Court 27 DENIES Plaintiff’s Motion for Appointment of Counsel. 28 // 1 III. Screening of Plaintiff’s Complaint 2 A. Standard of Review 3 A complaint filed by any person proceeding IFP is subject to sua sponte dismissal, 4 however, if it is “frivolous, malicious, fail[s] to state a claim upon which relief may be 5 granted, or seek[s] monetary relief from a defendant immune from such relief.” 28 6 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) 7 (holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); 8 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not 9 only permits, but requires a district court to dismiss an in forma pauperis complaint that 10 fails to state a claim.”). 11 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 12 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 14 U.S. 544, 555 (2007)). “Determining whether a complaint states a plausible claim for 15 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 16 judicial experience and common sense.” Id. The “mere possibility of misconduct” falls 17 short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 18 F.3d 962, 969 (9th Cir. 2009). 19 “When there are well-pleaded factual allegations, a court should assume their 20 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 21 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 22 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 23 allegations of material fact and must construe those facts in the light most favorable to 24 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 25 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 26 However, while the court “ha[s] an obligation where the petitioner is pro se, 27 particularly in civil rights cases, to construe the pleadings liberally and to afford the 28 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 1 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 2 “supply essential elements of claims that were not initially pled.” Ivey v. Board of 3 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 4 B. Plaintiff’s Factual Allegations 5 On January 16, 2020, Plaintiff claims that the toilet in his cell “was not 6 functioning.” Compl. at 4. “Maintenance staff conducted some work on it and the toilet 7 was adjusted to flush properly.” Id. at 4-5. Plaintiff claims that “hours later,” there was 8 water “pouring through the sides of the sink which is connected to the toilet” and began 9 “flooding his cell.” Id. at 5. 10 Plaintiff “notified the dorm officer” to have the “plumbing issue” repair or “as an 11 alternative he sought to be moved to a different cell.” Id. The “dorm officer” then 12 “notified the shift supervisor Sergeant George Cortez” who denied Plaintiff’s request to 13 be moved to a different cell. Id. 14 Two days after Plaintiff requested that the plumbing issue in his cell be repaired, 15 Plaintiff claims he “stepped out of the shower” and “slipped on the puddle of water 16 created by the leak from the sink.” Id. Plaintiff fell to the ground causing him to hit his 17 “head on the metal frame of the bed.” Id. 18 Staff “observed that Plaintiff had suffered an accident” and “activated an ‘ICS’ 19 emergency alarm that summoned medical staff to the scene of the accident.” Id. A day 20 after the incident, Plaintiff “filed a facility complaint” in which he sought “administrative 21 action against Imperial facility supervisors.” Id. Plaintiff claims he continues to suffer 22 from “severe head pain, headache pain, and neck and back pain” as a result of the fall in 23 his cell. Id. at 6. 24 Plaintiff “initiated a separate grievance” on January 25, 2020 regarding 25 “inadequacy, untruthfulness and lack of consideration regarding detainee concerns.” Id. 26 Plaintiff also filed a grievance on February 18, 2020 against the “medical department for 27 their poor performance in the writing of the accident/medical report relevant to the 28 incident.” Id. 1 Plaintiff then submitted grievances to ICE on March 3, 2020 and March 4, 2020 2 “which were received and adjudicated by the ICE Compliance Unit” on March 5, 2020. 3 Id. at 7. Plaintiff claims he was “provided with partial documentation” which indicated 4 that “SDDO Bribiesca will be notified of his request.” Id. 5 On April 1, 2020, Plaintiff was “cell extracted from his cell and taken to 6 segregated confinement without given an explanation.” Id. at 8. Plaintiff was told that he 7 was placed in segregated confinement “due to Incident Report” prepared by Defendant 8 Builteman charging Plaintiff with “inciting others to riot” and “threatening a staff 9 member with bodily harm.” Id. Plaintiff alleges Builteman wrote the report “predicated 10 entirely on the purported accounts of (2) confidential sources.” Id. The allegations of the 11 “confidential sources” indicated that “detainees planned a staff assault” to take place on 12 Apri1 1, 2020. Id. Plaintiff claims the report “only vaguely identified Plaintiff’s role in 13 the allegations.” Id. He further claims Builteman “omitted significant details relating to 14 any standard ensuant investigation.” Id. at 9. 15 Builteman’s report was “reviewed for accuracy” by Defendant Rodriguez. Id. 16 Defendant Marrero “conducted final authorization for Plaintiff’s placement in segregated 17 confinement.” Id. A subsequent investigation was conducted and “Investigating Officer” 18 Sergeant Nelson “recommended that Plaintiff answer to disciplinary charges noting that 19 there was ‘sufficient evidence.’” Id. 20 An “Institution Disciplinary Panel,” presided over by Facility Lieutenant Wendy 21 Cuevas, determined that “no prohibited act was committed” and the “evidence [was] not 22 enough to support charges” and recommended that the charges be dismissed. Id. 23 However, on April 7, 2020, Defendant Marrero found there was “sufficient 24 document evidence to support the charge of ‘inciting others to riot’” and imposed a 25 sanction of thirty (30) days of “disciplinary segregated detention.” Id. 26 On April 15, 2020, Plaintiff “submitted a facility grievance” in which he appealed 27 the “adverse findings.” Id. at 9. However, Defendant Ruiz “denied Plaintiff’s appeal and 28 added untruthful uncorroborated detail otherwise not present in the record.” Id. Plaintiff 1 then “sought relief” by “seeking to redress his unresolved concerns by submitting his 2 grievances to ICE pursuant to ICE detention facilities.” Id. However, Plaintiff claims 3 ICE “refused to adjudicate Plaintiff’s grievance.” Id. 4 Plaintiff seeks compensatory damages, punitive damages, and damages for 5 “physical and emotional injuries.” Id. at 12-13. 6 C. Bivens 7 Plaintiff has brought his claims pursuant to Bivens v. Six Unknown Named Agents 8 of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). “In Bivens, the Supreme Court 9 ‘recognized for the first time an implied right of action for damages against federal 10 officers alleged to have violated a citizen’s constitutional rights.’” Vega v. United States, 11 881 F.3d 1146, 1152 (9th Cir. 2018) (quoting Hernandez v. Mesa, __ U.S. __, 137 S. Ct. 12 2003, 2006 (2017) (citation omitted)). “In the limited settings where Bivens does apply, 13 the implied cause of action is the ‘federal analog to suits brought against state officials 14 under Rev. Stat. § 1979, 42 U.S.C. § 1983.’” Iqbal, 556 U.S. at 675-76 (quoting 15 Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006)). 16 D. Individual Liability 17 As an initial matter, the Court finds that Plaintiff’s Complaint is devoid of any 18 specific factual allegations as to what Defendant Palacios did, or did not do, in relation to 19 the alleged constitutional violations identified by Plaintiff. In addition, as to Defendant 20 Bribiesca, Plaintiff’s only allegation against him is his claim that Plaintiff was informed 21 that Bribiesca “will be notified” of Plaintiff’s request for documentation in support of a 22 grievance he attempted to file. Compl. at 6. 23 “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff 24 must plead that each government-official defendant, through the official’s own individual 25 actions, has violated the Constitution.” Iqbal, 556 U.S. at 676; see also Jones v. 26 Community Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 27 1984) (even pro se plaintiff must “allege with at least me degree of particularity overt 28 acts which defendants engaged in” in order to state a claim). Therefore, Plaintiff must 1 include in his pleading sufficient “factual content that allows the court to draw the 2 reasonable inference that the defendant is liable for the misconduct alleged,” Iqbal, 556 3 U.S. at 678, and describe personal acts by each individual defendant which show a direct 4 causal connection to a violation of specific constitutional rights. Taylor v. List, 880 F.2d 5 1040, 1045 (9th Cir. 1989). 6 As currently pleaded, Plaintiff’s Complaint fails to include any factual content to 7 suggest that either Palacios or Bribiesca personally participated in, directed, or caused 8 him to suffer any constitutional injury. He must provide more than “unadorned, the 9 defendant-unlawfully-harmed-me accusations,” in order to plead a plausible claim for 10 relief. See Iqbal, 556 U.S. at 678. Thus, without more, Plaintiff’s allegations as to 11 Palacios or Bribiesca are subject to sua sponte dismissal pursuant to 28 U.S.C. 12 §§ 1915(e)(2) and 1915A(b). 13 E. Bivens claims 14 Plaintiff also alleges that Defendants who are alleged to be employees of IRDF, a 15 private institution that contracts with ICE2, failed to provide him adequate medical care 16 after he suffered injuries from falling in his cell. See Compl. at 6. In addition, Plaintiff 17 alleges that these individuals have also violated his right to due process under the Fifth 18 Amendment. See id. at 10. 19 “In Bivens, the Supreme Court ‘recognized for the first time an implied right of 20 action for damages against federal officers alleged to have violated a citizen’s 21 constitutional rights.’” Vega v. United States, 881 F.3d 1146, 1152 (9th Cir. 2018) 22 (quoting Hernandez v. Mesa, __ U.S. __, 137 S. Ct. 2003, 2006 (2017) (citation 23 omitted)). Bivens arose in the context of a Fourth Amendment violation, however, and 24 the Court has “only expanded [Bivens’] ‘implied cause of action’ twice.” Id. (quoting 25 Ziglar v. Abassi, __ U.S. __, 137 S. Ct. 1843, 1854 (2017)). The Court expanded Bivens 26

27 2 See https://www.mtctrains.com/facility/imperial-regional-detention-facility (website last visited August 28 1 to Eighth Amendment inadequate medical care claims raised by a federal prisoner’s 2 decedents. Id. (citing Carlson v. Green, 446 U.S. 14, 24-25 (1980) (concluding that “[a] 3 federal official contemplating unconstitutional conduct [in the context of an Eighth 4 Amendment] medical care [claim]… must be prepared to face the prospect of a Bivens 5 action.”)). 6 However, the Court has expressly refused to extend liability for constitutional 7 violations to private actors who contract with the federal government. See Correctional 8 Services Corp. v. Malesko, 534 U.S. 61, 74 (2001). Thus, to the extent Plaintiff seeks to 9 hold IRDF employees liable for damages incurred under color of federal law, he fails to 10 state a plausible claim for relief. See Iqbal, 556 U.S. at 679. A Bivens action may only 11 be brought against a federal official in his or her individual capacity. See Daly-Murphy v. 12 Winston, 837 F.2d 348, 355 (9th Cir. 1987). Bivens does not authorize a suit for money 13 damages against a private entity like IRDF or its employees. See Malesko, 534 U.S. at 66 14 n.2 (holding that FDIC v. Meyer, 510 U.S. 471 (1994), “forecloses the extension of 15 Bivens to private entities.”); Minneci v. Pollard, __U.S. __, 132 S. Ct. 617, 626 (2012) 16 (foreclosing Bivens relief where federal prisoner sought damages from privately 17 employed prison personnel, and despite Eighth Amendment inadequate medical care 18 allegations, on grounds that the “conduct is of a kind that typically falls within the scope 19 of traditional state tort law,” and therefore “the prisoner must seek a remedy under state 20 tort law.”). 21 Accordingly, to the extent Plaintiff’s Complaint alleges constitutional violations 22 committed by Defendants, who are alleged to be employed by IRDF, he fails to state a 23 plausible claim upon which Bivens relief may be granted. 24 III. Conclusion and Order 25 Based on the foregoing, the Court: 26 1. GRANTS Plaintiff’s Motion to Proceed IFP; 27 2. DENIES Plaintiff’s Motion to Appoint Counsel; 28 1 3. DISMISSES Plaintiff's Complaint for failing to state a claim upon which 2 ||relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)Gi) and 1915A(b)(1); 3 4. GRANTS Plaintiff sixty (60) days leave from the date of this Order in 4 || which to file an Amended Complaint that cures the deficiencies of pleading described 5 || above. Plaintiff's Amended Complaint must be complete by itself without reference to 6 || his original complaint. See CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & 7 || Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the 8 |/original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that 9 claims dismissed with leave to amend which are not re-alleged in an amended pleading 10 be “considered waived if not repled.”’). 11 Should Plaintiff elect not to proceed by filing an Amended Complaint within 60 12 || days, the Court will enter a final Order of dismissal of this civil action for failure to state 13 |}a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)Gi) and § 1915A(b)(1), and for failure to 14 || prosecute in compliance with a Court Order requiring amendment. See Ferdik v. 15 || Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to prosecute 16 || permitted if plaintiff fails to respond to a court’s order requiring amendment of 17 ||complaint); Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“Tf a plaintiff does not 18 || take advantage of the opportunity to fix his complaint, a district court may convert the 19 || dismissal of the complaint into dismissal of the entire action.”’). 20 5. DIRECTS the Clerk of Court to mail Plaintiff a civil rights form complaint 21 his use in amending his claims. 22 IT IS SO ORDERED. 23 || Dated: August 5, 2020 WV : f, Vu “3 : / f □ 5 24 HON. MICHAEL M. ANELLO United States District Judge 26 27 28 7