Navarrette v. Department of Homeland Security

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA TOMMY NAVARRETTE aka Case No.: 3:22-cv-0006-LL-AHG Mr. T. Navarrette El 1) DISMISSING DEFENDANTS AS Plaintiff, 13 WAIVED; vs. AND DEP’T OF HOMELAND SECURITY; JANE DOE 1; JANE DOE 2; 2) DIRECTING U.S. MARSHAL TO U.S. CUSTOMS AND BORDER EFFECT SERVICE OF FIRST PROTECTION; METROPOLITAN 17 AMENDED COMPLAINT UPON CORRECTIONAL CENTER; ROBIN REMAINING DEFENDANT WREN, Special Agent, PURSUANT TO 28 U.S.C. § 1915(d) 19 Defendants. AND FED. R. CIV. P. 4(c)(3) I. Procedural History 24 On January 4, 2022, Tommy Navarrette (“Plaintiff”), formerly housed at the Santa Rita Jail, and proceeding pro se, filed this civil action using a form complaint pursuant to the Civil Rights Act, 42 U.S.C. § 1983. (See Compl., ECF No. 1.) In addition, Plaintiff filed a Motion to Appoint Counsel and a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (See ECF Nos. 3, 5.)

1 On March 10, 2022, the Court GRANTED Plaintiff’s Motion to Proceed IFP, DENIED his Motion to Appoint Counsel, sua sponte DISMISSED the claims against Department of Homeland Security, U.S. Customs and Border Protection, and Metropolitan Correctional Center for failing to state a claim upon which either § 1983 or Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) relief could be granted pursuant to 28 U.S.C. § 1915(e)(2)(B). (See ECF No. 6 at 8.) However, the Court found that Plaintiff had alleged a plausible Fourth Amendment false arrest claims against the Jane Doe Defendants and granted Plaintiff leave amend his pleading to identify these Defendants in order for the Court to order the U.S. Marshal to serve them. (Id. at 7.)

10 Plaintiff was also cautioned that any Defendants not named and any claim not re-alleged in his First Amended Complaint would be considered waived. (See id. at 8 citing See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc., 896 F.2d at 1546; Lacey v. Maricopa Cnty., 693 13 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an amended pleading may be “considered waived if not repled.”).)

15 On March 25, 2022, Plaintiff filed his First Amended Complaint (“FAC”). (See ECF No. 7.) In his FAC, Plaintiff has substituted Defendant Robin Wren for Jane Doe 1. (See id. at 3.) Plaintiff no longer names Defendants Department of Homeland Security, Jane Doe 2, U.S. Customs and Border Protection, or Metropolitan Correction Center San Diego.

19 Thus, the claims against these Defendants are deemed waived and they are DISMISSED from this action. The Clerk of Court is directed terminate these Defendants from the docket.

22 II. Sua Sponte Screening pursuant to 28 U.S.C. § 1915(e)(2) 23 A. Standard of Review 24 As the Court previously informed Plaintiff because he is proceeding IFP, Plaintiff’s FAC is subject to sua sponte review, and mandatory dismissal, if it is “frivolous, malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary relief from a defendant immune from such relief.” See 28 U.S.C. § 1915(e)(2)(B); Coleman v. Tollefson, 135 S. Ct. 1759, 1763 (2015) (pursuant to 28 U.S.C. § 1915(e)(2) “the court shall dismiss the case at any time if the court determines that—(A) the allegation of poverty is untrue; or (B) the action or appeal—(i) is frivolous or malicious; [or] (ii) fails to state a claim on which relief may be granted.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.”); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”).

8 The purpose of § 1915’s screening provisions are “‘to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

12 B. Discussion 13 Once again, Plaintiff indicates that this action is brought under 42 U.S.C. § 1983.

14 (See ECF No. 7 at 1-2.) Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “Section 1983, however, provides no right of action against federal (rather than state) officials.” Russell v. United States Dept. of the Army, 191 F.3d 1016, 1019 (9th Cir. 1999). To the extent Plaintiff has named a federal rather than a state actor as the sole Defendant, his FAC is properly construed pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) (“Actions under § 1983 and those under Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens.”)

24 “In Bivens, the Supreme Court ‘recognized for the first time an implied right of action for damages against federal officers alleged to have violated a citizen’s constitutional rights.’” Vega v. United States, 881 F.3d 1146, 1152 (9th Cir. 2018) (quoting Hernandez v. Mesa, __U.S.__, 137 S. Ct. 2003, 2006 (2017) (citation omitted)). “In the limited settings where Bivens does apply, the implied cause of action is the ‘federal analog to suits brought against state officials under Rev. Stat. § 1979, 42 U.S.C. § 1983.’” Iqbal, 556 U.S. at 675-76 (quoting Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006)). Thus, to state a Bivens claim for damages, the plaintiff must allege facts showing that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the alleged deprivation was committed by a federal actor. Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). Thus, the Court, once again, construes Plaintiff’s action to arise under Bivens.

7 In addition, the Court finds Plaintiff’s FAC alleges a plausible Fourth Amendment false arrest claim against Defendant Wren sufficient to survive the “low threshold” set for sua sponte screening as required by 28 U.S.C. § 1915(e)(2). See Wilhelm v. Rotman, 680 10 F.3d 1113, 1123 (9th Cir. 2012); Iqbal, 556 U.S. at 678.

11 III. Conclusion and Orders 12 Good cause appearing, the Court: 13 1. DISMISSES all claims against Defendants Department of Homeland Security, Jane Doe 2, U.S. Customs and Border Protection, and Metropolitan Correction Center San Diego. The Clerk of Court is directed to terminate these Defendants from the docket. The Clerk of Court is also directed to terminate Defendant Jane Doe 1 in light of Plaintiff’s substitution of Defendant Robin Wren for Jane Doe 1.

18 2. DIRECTS the Clerk to issue a summons as to Defendant Wren and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for Defendant. In addition, the Clerk will provide Plaintiff with a certified copy of the March 10, 2022 Order granting IFP status, certified copies of his FAC, and the summons so that he may serve the Defendant.

22 Upon receipt of this “IFP Package,” Plaintiff must complete the USM Form 285s as completely and accurately as possible, include an address where each named Defendant may be found and/or subject to service pursuant to S.D. Cal. CivLR 4.1c., and return them to the United States Marshal according to the instructions the Clerk provides in the letter accompanying his IFP Package.

27 3. ORDERS the U.S. Marshal to serve a copy of the FAC and summons upon Defendant Wren as directed by Plaintiff on the USM Form 285s provided to him. All costs || of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. ||P. 4(c)(3).

3 4. ORDERS Defendant, once he has been served, to reply to Plaintiff's FAC || within the time provided by the applicable provisions of Federal Rule of Civil Procedure || 12(a). See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be permitted to || “waive the right to reply to any action brought by a prisoner confined in any Jail, prison, or || other correctional facility under section 1983,” once the Court has conducted its sua sponte ||screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination based on the face on the pleading alone that Plaintiff has a || ‘reasonable opportunity to prevail on the merits,” the Defendants are required to respond).

11 5. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to ||serve upon Defendant, or if appearance has been entered by counsel, upon Defendant’s |}counsel, a copy of every further pleading, motion, or other document submitted for the || Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 15 original document he seeks to file with the Clerk of the Court, a certificate stating the |}manner in which a true and correct copy of that document has been served on Defendant 17 his counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any document ||/recetved by the Court which has not been properly filed with the Clerk or which fails to include a Certificate of Service upon the Defendant, or his counsel, may be disregarded.

20 IT IS SO ORDERED.

21 ||Dated: May 16, 2022 NO 22 DE | 3 Honorable Linda Lopez 54 United States District Judge 5 ee