1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MONIQUE SANCHEZ, Case No.: 25-cv-2736-RSH-SBC

12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. MOTION TO PROCEED IFP AND DISMISSING COMPLAINT 14 UNITED STATES OF AMERICA,

15 Defendant. [ECF No. 5]

16 17 18 On October 14, 2025, plaintiff Monique Sanchez, proceeding pro se, initiated this 19 action and filed a motion to proceed in forma pauperis (“IFP”). ECF Nos. 1, 2. The 20 complaint advanced a single claim under the Federal Tort Claims Act (“FTCA”), based on 21 an incident on November 12, 2013 in which an off-duty Border Patrol agent discharged a 22 firearm at a vehicle, resulting in distress to Plaintiff, who was then an eight-year-old. 23 On October 14, 2025, the Court entered an order (1) denying Plaintiff’s IFP motion 24 and (2) dismissing the complaint pursuant to

(e)(2)(B)(ii) for failure to 25 state a claim. ECF No. 3. The Court denied Plaintiff’s IFP motion because the financial 26 information provided by Plaintiff was incomplete.

. The Court dismissed the 27 complaint on the grounds that Plaintiff’s FTCA claim was time-barred, and failed to 28 adequately plead non-conclusory facts plausibly establishing her entitlement to relief under 1 the FTCA.

. The Court granted Plaintiff leave to re-file an IFP motion and file an 2 amended pleading.

. 3 On November 18, 2025, Plaintiff filed her Amended Complaint and a renewed IFP 4 motion. ECF Nos. 4, 5. The Amended Complaint adds, among other things, that the off- 5 duty agent “fired two gunshots at Plaintiff’s family vehicle during a minor shoplifting 6 incident.” ECF No. 4 ¶ 11. The Amended Complaint reasserts her claim under the FTCA, 7 and adds claims under Bivens v. Six Unknown Named Agents,

(1971) and 8 pursuant to

for constitutional violations. Although the original complaint 9 named only the United States as a defendant, the Amended Complaint also names the Chula 10 Vista Police Department and Doe Defendants 1 through 10. 11 I. MOTION TO PROCEED IFP 12 All parties instituting a civil action, suit, or proceeding in a district court of the 13 United States, other than a petition for writ of habeas corpus, must pay a filing fee. 28

(a). An action may proceed despite a party’s failure to pay the filing fee only 15 if the party is granted leave to proceed IFP pursuant to

(a)(1). See Moore 16 v. Maricopa Cnty. Sheriff’s Office,

(9th Cir. 2011) (“All persons, not 17 just prisoners, may seek IFP status.”); Rodriguez v. Cook,

(9th Cir. 18 1999). A federal court may authorize the commencement of an action without the 19 prepayment of fees if the party submits an affidavit, including a statement of assets, 20 showing an inability to pay the required filing fee.

(a). “An affidavit in 21 support of an IFP application is sufficient where it alleges that the affiant cannot pay the 22 court costs and still afford the necessities of life.” Escobedo v. Applebees,

, 23 1234 (9th Cir. 2015). 24 The Court previously denied Plaintiff’s IFP motion on the grounds that the 25 supporting financial affidavit she submitted was incomplete. Plaintiff’s renewed motion is 26 substantially complete, and establishes the requisite level of financial need. Plaintiff’s 27 application is therefore granted. 28 // 1 II. SCREENING PURSUANT TO

(e)(2) 2 A complaint filed by any person seeking to proceed IFP pursuant to

1915(a) is subject to sua sponte review and dismissal should the Court determine, inter alia, 4 that it is frivolous, malicious, or fails to state a claim upon which relief may be granted. 5 See

(e)(2)(B); see Lopez v. Smith,

(9th Cir. 2000) 6 (“[S]ection 1915(e) applies to all in forma pauperis complaints, not just those filed by 7 prisoners.”). 8 “The standard for determining whether a plaintiff has failed to state a claim upon 9 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 10 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter,

1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman,

(9th Cir. 12 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 13 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 14 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 15 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) 16 (quoting Bell Atlantic Corp. v. Twombly,

(2007)). 17 A complaint by a plaintiff proceeding pro se is “held to less stringent standards than 18 formal pleadings drafted by lawyers.” Hebbe v. Pliler,

(9th Cir. 2010) 19 (citation omitted). Pro se pleadings are construed liberally.

Nonetheless, courts may not 20 “supply essential elements of the claim that were not initially pled.” Ivey v. Bd. of Regents, 21

(9th Cir. 1982). A pro se litigant’s pleadings still must meet some 22 minimum threshold in providing the defendants with notice of what it is that they allegedly 23 did wrong. See Brazil v. U.S. Dep’t of Navy,

, 199 (9th Cir. 1995). 24 A. FTCA Claim 25 The Amended Complaint, like Plaintiff’s initial pleading, brings a tort claim against 26 the United States based on the incident on November 12, 2013. The Court previously 27 dismissed this claim as time-barred, because Plaintiff did not file a claim with the 28 responsible government agency within two years of accrual of her claim. ECF No. 3 at 3- 1 4. The Court also discussed the legal standard for equitable tolling. Id. 2 The Amended Complaint does not address this deficiency. The Amended Complaint 3 alleges that the off-duty Border Patrol agent’s conduct “constitutes negligence, assault, 4 battery, and intentional infliction of emotional distress,” and that Plaintiff suffered 5 psychological and emotional injury as a result of that conduct. ECF No. 4 ¶¶ 23, 24. The 6 Amended Complaint provides no basis to conclude that Plaintiff’s FTCA claim first 7 accrued any later than the incident itself, which occurred in 2013. Plaintiff has not 8 established the timely filing of a government claim. While the original complaint alleged 9 that she filed a government claim in 2025, her Amended Complaint omits any mention of 10 when she filed the claim. The Amended Complaint alleges a “cover-up” in non-specific 11 terms, and alleges that Plaintiff “discovered the full extent of the cover-up” on September 12 23, 2025, “after a detailed conversation with a family member revealed facts that had been 13 concealed,” id. ¶ 18, but does not set forth a basis for equitable tolling, under which, as the 14 Court previously advised, “a litigant must establish (1) that he has been pursuing his rights 15 diligently, and (2) that some extraordinary circumstances stood in [her] way.” Booth v. 16 United States,

(9th Cir. 2019) (citation omitted). Plaintiff’s FTCA 17 claim is therefore dismissed. 18 B. Bivens Claim 19 The Amended Complaint also includes a Bivens claim against the John Doe off-duty 20 Border Patrol agent who fired the gunshots. In order to state such a claim, a plaintiff must 21 show two elements: (1) the defendant acted under color of federal law; and (2) the 22 defendant deprived her of a right secured by the Constitution or laws of the United States. 23 Morgan v. United States,

(9th Cir. 2003); see also Van Strum v. Lawn, 24

(9th Cir. 1991) (“Actions under § 1983 and those under Bivens are 25 identical save for the replacement of a state actor under § 1983 by a federal actor under 26 Bivens.”). The statute of limitations for a Bivens claim is equivalent to that applicable to 27 personal injury actions in the forum states. Van Strum,

. California has a 28 two-year personal injury statute of limitations,

, which is 1 applicable to Plaintiff’s Bivens claim here. See Yasin v. Coulter,

, 689 2 (9th Cir. 2011). “[A] Bivens claim accrues when the plaintiff knows or has reason to know 3 of the injury.” Western Ctr. for Journalism v. Cederquist,

(9th Cir. 4 2002). 5 The Amended Complaint alleges that Plaintiff’s Fourth and Fifth Amendment rights 6 were violated as a result of the “agent’s use of deadly force against an unarmed civilian 7 family.” ECF No. 4 ¶ 31. This claim, like the FTCA claim, is based on the 2013 shooting 8 incident; Plaintiff filed this lawsuit and her Amended Complaint in 2025. Despite the 9 Court’s prior order, the Amended Complaint does not plead any facts that would prevent 10 her personal injury claims based on that incident from being time-barred. Like the FTCA 11 claim, Plaintiff’s Bivens claim is dismissed as untimely. 12 C. Section 1983 13 The remaining claims in the Amended Complaint are brought against the Chula 14 Vista Police Department and Doe defendants pursuant to Section 1983 for violation of due 15 process and equal protection, based on an alleged failure to investigate the 2013 shooting 16 and intentional concealment of the off-duty agent’s misconduct. 17 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 18 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor,

, 393–94 (1989) (citation omitted). “To state a claim under § 1983, a plaintiff must 20 allege two essential elements: (1) that a right secured by the Constitution or laws of the 21 United States was violated, and (2) that the alleged violation was committed by a person 22 acting under the color of State law.” Benavidez v. Cnty. of San Diego,

, 1144 23 (9th Cir. 2021) (citing Long v. County of Los Angeles,

(9th Cir. 2006)). 24 The Amended Complaint invokes due process and equal protection. “Substantive 25 due process protects individuals from arbitrary deprivation of their liberty by [the] 26 government.” Brittain v. Hansen,

(9th Cir. 2006). “[T]o establish a 27 constitutional violation based on substantive due process, [a plaintiff] must show both a 28 deprivation of her liberty and conscience-shocking behavior by the government.”

To 1 state a claim for violation of the Equal Protection Clause, a plaintiff must allege “four 2 separate elements: (1) that the plaintiff was treated differently from others similarly 3 situated; (2) this unequal treatment was based on an impermissible classification; (3) that 4 the defendant acted with discriminatory intent in applying this classification; and (4) the 5 plaintiff suffered injury as a result of the discriminatory classification.” Lam v. City & Cnty. 6 of San Francisco,

(N.D. Cal. 2012). 7 A municipality may not be vicariously liable under Section 1983 for an injury caused 8 by its employee or agent. Monell v. N.Y.C. Dep’t of Soc. Servs.,

(1978). 9 However, municipalities may be held liable as “persons” under § 1983 “when execution of 10 a government’s policy or custom, whether made by its lawmakers or by those whose edicts 11 or acts may fairly be said to represent official policy, inflicts the injury . . . .” Id. A plaintiff 12 may recover under Monell under one of three theories. Clouthier v. Cnty. of Contra Costa, 13

, 1249–50 (9th Cir. 2010), overruled on other grounds by Castro v. Cnty. of 14 Los Angeles,

(9th Cir. 2016). First, “a local government may be held 15 liable ‘when implementation of its official policies or established customs inflicts the 16 constitutional injury.’”

at 1249 (quoting Monell,

). Second, “under 17 certain circumstances, a local government may be held liable under § 1983 for acts of 18 ‘omission,’ when such omissions amount to the local government’s own official policy.” 19 Id. Third, “a local government may be held liable under § 1983 when the individual who 20 committed the constitutional tort was an official with final policy-making authority or such 21 an official ratified a subordinate’s unconstitutional decision or action and the basis for it.” 22 Id. at 1250 (internal quotations omitted). 23 “The statute of limitations for section 1983 actions is determined by state law.” 24 Trimble v. City of Santa Rosa,

(9th Cir. 1995). “Section 1983 actions are 25 characterized as personal injury actions for statute of limitations purposes.”

The statute 26 of limitations for personal injury actions in California is two years.

335.1; see also Owens v. Okure,

, 249–50 (1989) (“[W]here state law provides 28 multiple statutes of limitations for personal injury actions, courts considering § 1983 claims 1 should borrow the general or residual statute for personal injury actions.”); Maldonado v. 2 Harris,

(9th Cir. 2004) (applying § 335.1’s limitations period to Section 3 1983 claim). In contrast, “[f]ederal law . . . governs when civil rights claims accrue.” Klein 4 v. City of Beverly Hills,

(9th Cir. 2017). “Under federal law, a claim 5 accrues when the plaintiff knows or has reason to know of the injury which is the basis of 6 the action.” Maldonado,

(quoting Knox v. Davis,

(9th 7 Cir. 2001)). 8 The Amended Complaint asserts that the Chula Vista Police Department “failed to 9 properly investigate or record the misconduct” of the off-duty Border Patrol agent, ECF 10 No. 4 ¶ 15, and further that “police officers collaborated with federal agents to conceal or 11 alter the facts of the incident, suppressing evidence of the shooting,” id. ¶ 16. The Amended 12 Complaint contains no further detail beyond these highly generalized statements. 13 The Court concludes that Plaintiff has failed to plead non-conclusory facts plausibly 14 establishing a violation of her due process or equal protection rights by persons acting 15 under color of state law. Nor has she pleaded a basis for municipal liability under Monell. 16 Plaintiff’s Section 1983 claims are therefore dismissed for failure to state a claim. 17 D. Leave to Amend 18 The Court previously granted Plaintiff leave to amend her FTCA claim to address 19 the deficiencies identified by the Court. Plaintiff’s Amended Complaint did not address 20 those deficiencies. Her FTCA claim remains time-barred and the Court concludes that 21 further amendment of this claim would be futile. The Court also concludes that amendment 22 of Plaintiff’s Bivens claim, brought for the first time in her Amended Complaint but 23 substantially similar to her FTCA claim, would be futile in light of the applicable statute 24 of limitations. 25 Plaintiff’s Section 1983 claims against the Chula Vista Police Department and its 26 unidentified personnel, brought for the first time in the Amended Complaint, are so lacking 27 in underlying factual allegations that the Court cannot rule out the possibility that Plaintiff 28 could amend these claims to state a claim. Plaintiff’s Section 1983 claims, like her FTCA 1 Bivens claims, may be time-barred. The Court grants Plaintiff leave to amend these 2 || Section 1983 claims with the requirement that Plaintiff identify the timeframe for each of 3 || her underlying factual allegations. 4 Accordingly, the Court grants Plaintiff leave to file a second amended complaint for 5 ||the sole purpose of addressing the deficiencies identified herein as to her Section 1983 6 ||claims. This leave does not extend to allowing Plaintiff to replead her FTCA or Bivens 7 ||claims, or to add further state or federal claims or additional defendants; although in 8 |}connection with her Section 1983 claims, Plaintiff may identify by name any individual 9 || currently identified as a “Doe” defendant. Plaintiff shall file her second amended pleading 10 || within forty-five (45) days of the date of this order. If Plaintiff files a second amended 11 |}complaint that exceeds the scope of the leave granted by this order, the pleading will be 12 stricken. Failure to timely file an amended complaint will result in dismissal of the action. 13 CONCLUSION 14 For the foregoing reasons: 15 1. Plaintiff's IFP application [ECF No. 5] is GRANTED. 16 2. The Amended Complaint is DISMISSED for failure to state a claim pursuant 17 || to

(e)(2)(B). 18 3. Plaintiff is GRANTED leave to file a second amended complaint as provided 19 || herein. 20 IT IS SO ORDERED. Dated: December 3, 2025 fobut C Lowe 3 Hon. Robert S. Huie United States District Judge 24 25 26 27 28