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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Eugenia Marmon, CASE NUMBER 5:20-cv-00633-RGK-KES PLAINTIFF(S) v. P. Barr, et al., ORDER RE REQUEST TO PROCEED IN FORMA PAUPERIS DEFENDANT(S)

IT IS ORDERED that the Request to Proceed In Forma Pauperis is hereby GRANTED.

Date United States Magistrate Judge

IS RECOMMENDED that the Request to Proceed In Forma Pauperis be DENIED for the following reason(s): Inadequate showing of indigency District Court lacks jurisdiction [| Legally and/or factually patently frivolous |] Immunity as to Other:

Comments: Plaintiff failed to timely amend her IFP application; Plaintiff failed to allege facts showing standing. See attached.

August 3, 2020 /s/ Karen E. Scott Date United States Magistrate Judge IS ORDERED that the Request to Proceed In Forma Pauperis is hereby: GRANTED DENIED (see comments above). IT IS FURTHER ORDERED that: [_] Plaintiff SHALL PAY THE FILING FEES IN FULL within 30 days or this case will be dismissed. This case is hereby DISMISSED immediately. [_] This case is hereby REMANDED to state court. August 4, 2020 /s/ R. Gary Klausner Date United States District Judge

1 UNITED STATES DISTRICT COURT 2 CENTRAL DISTRICT OF CALIFORNIA 3 4 MARIA EUGENIA MARMON, Case No. 5:20-cv-00633-RGK (KES) 5 Plaintiff, ATTACHMENT TO ORDER 6 v. RECOMMENDING DENIAL OF 7 WILLIAM P. BARR, et al., REQUEST TO PROCEED IN FORMA PAUPERIS 8 Defendant. 9 10 Plaintiff, Eugenia Marmon, filed this First Amended Complaint (“FAC”) 11 under both

and Bivens v. Six Unknown Named Agents of Federal 12 Bureau of Narcotics,

(1971) against (1) William Barr, the U.S. 13 Attorney General, (2) Thomas Homan, identified as “Warden of DHS-ICE in GEO 14 Detention Facility” in Adelanto, California, (3) G. Valdez (also identified as a 15 warden), (4) N. Allen (also identified as a warden), (5) Orozco (an officer at GEO), 16 (6) “John Doe” (an officer at GEO), (7) Medrano (a doctor at GEO), (8) J. Johnson 17 (GEO Chief of Security), and (9) Chief Counsel of DHS-ICE, for violations of the 18 “First, Fourth, Eighth, and Fourteenth Amendments rights of due process, access 19 [to] the courts, receive medical [care], [and] being free of harassment and 20 retaliation … on behalf of Rafael Alejandro Abarca Mercado[.]” (Dkt. 11 at 3-4.) 21 Plaintiff alleges that Mr. Mercado was deprived of his rights, harassed, and 22 retaliated against while in ICE custody, and then wrongfully deported to Mexico 23 where he was kidnapped, tortured, and murdered by Mexican gang members. (Id. 24 at 4.) Plaintiff seeks: (1) a declaratory judgment that Mr. Mercado’s constitutional 25 rights were violated; (2) $900 million in damages; and (3) asylum for Mr. 26 Mercado’s family. (Id. at 11-12.) 27 In screening Plaintiff’s Complaint (Dkt. 1), the Court identified multiple 28 1 pleading defects, including lack of standing. The § 1983 and Bivens claims 2 alleging excessive force, failure to protect, and deliberate indifference to medical 3 needs while in custody all arise under the Eighth Amendment (if Mr. Mercado was 4 in custody under a criminal conviction) or the Fourteenth Amendment (if he was an 5 immigration detainee). Rights protected by the Eighth and Fourteenth 6 Amendments are personal rights, and only the person subject to the violation has 7 standing to bring suit. See Whitmore v. Arkansas,

(1990); 8 Shelley v. Kraemer,

(1948). So too, only the person against whom 9 the government retaliated for protected conduct has standing to bring a claim based 10 on the First Amendment. See M.D. v. Newport-Mesa Unified Sch. Dist., No. 14- 11 0394-JVS-ANx,

at *6,

at *14 12 (C.D. Cal. Apr. 21, 2014) (“Jane Doe may not rest on adverse action taken solely 13 against Mary Doe in support of Jane Doe’s personal claim for First Amendment 14 retaliation.”) “[T]he general rule is that only the person whose [personal] rights 15 were violated can sue to vindicate those rights.” Moreland v. Las Vegas Metro. 16 Police Dept.,

, 369 (9th Cir. 1998). 17 That said, “[s]urvivors of a deceased individual whose rights were violated 18 before death may bring those personal claims on the decedent’s behalf if the 19 relevant state’s law authorizes such persons to bring a survival action in state 20 court.” See Minear v. Taft FCI, No. 10-0901,

at *4,

Dist. LEXIS 119407 at *11 (E.D. Cal. Oct. 22, 2010) (citing

(a)) 22 (citations omitted). On screening the Complaint, the Court explained to Plaintiff 23 that California law may permit such a survival action, but only when commenced 24 by an appropriate personal representative of the decedent, as follows: 25 Generally, lawsuits must be prosecuted by the real party in interest, i.e., the 26 person who has suffered the injury for which compensation is sought. Here, 27 it appears Plaintiff intends to bring “wrongful death” claims but she does not 28 allege any facts establishing her relationship to [Mr. Mercado]. Only certain 1 individuals close to the decedent can seek damages for wrongful death. Cal. 2 Code. Civ. P. § 377.60. 3 (Dkt. 5 at 3; see also Cal. Code Civ. P. §§ 377.20(a), 377.30.) 4 In order to commence an action as a decedent’s successor in interest, the 5 individual commencing the action must execute and file an affidavit setting forth 6 specific information. Cal. Code Civ. P. § 377.32. Further, “[t]he party seeking to 7 bring a survival action bears the burden of demonstrating that a particular state’s 8 law authorizes a survival action and that the plaintiff meets that state’s requirements 9 for bringing a survival action.” Moreland, 159 F.3d at 369. 10 Despite these instructions, the FAC contains no facts showing Plaintiff has 11 standing to pursue claims on behalf of Mr. Mercado’s estate. Plaintiff alleged no 12 facts about her relationship to Mr. Mercado and has not filed an affidavit pursuant 13 to California Code of Civil Procedure section 377.32. Having failed to amend the 14 Complaint to add such facts when given an opportunity to do so, the Court assumes 15 that Plaintiff cannot do so, and that further leave to amend would be futile. 16 Standing is a requisite component of federal subject matter jurisdiction. 17 White v. Lee,

(9th Cir. 2000). Because Plaintiff lacks 18 standing, this Court lacks jurisdiction to adjudicate the alleged claims. The action, 19 therefore, should be DISMISSED WITHOUT PREJUDICE. 20 21 22 23 24 25 26 27 28