The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff is a detainee at Eloy Detention Center in Arizona. He proceeds pro se on his complaint seeking relief pursuant to 42 U.S.C. § 1983. Plaintiff alleges that, in 2004, an unknown employee of the Sacramento Police Department confiscated his personal property, and that, sometime between 2004 and 2009, an unknown employee destroyed his personal papers. Plaintiff seeks money damages of one million dollars. He has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff has consented to this court's jurisdiction. See Doc. No. 4.
By order filed October 14, 2011, plaintiff was ordered to show cause, within twenty-eight days, why he should not be barred from proceeding in this action, pursuant to the "three strikes" provision of 28 U.S.C. § 1915(g). Plaintiff has now responded, and advises the court that he is currently an immigration detainee, and therefore is not subject to the Prisoner Litigation Reform Act, or PLRA. In support, plaintiff cites Andrews v. King, 398 F.3d 1113, 1122 (9th Cir. 2005) (actions dismissed while plaintiff was in INS custody do not count as strikes because plaintiff was "civil detainee" not subject to PLRA), and Agyeman v. I.N.S., 296 F.3d 871, 886 (9th Cir. 2002) (because alien is civil detainee, PLRA does not apply to alien's petition for review of agency deportation order).*fn1
Plaintiff also asks the court to take judicial notice of pleadings filed in connection with his petition for writ of habeas corpus, currently pending before the District Court for the District of Arizona, case number 2:09-cv-00231-ROS, in which he asks to be released from immigration detention. According to the order granting plaintiff's habeas petition, entered on December 7, 2011, Petitioner is a native and citizen of Sudan. On September 10, 1998, he was paroled into the United States as a refugee. On December 21, 2004, Petitioner was convicted in the California Courts of two counts of assault with intent to commit rape, and was sentenced to two consecutive terms of four years in prison. Petitioner was ultimately re-sentenced to consecutive terms for four years and sixteen months.
On September 21, 2009, Petitioner was ordered removed to Jamaica, with Ethiopia and Sudan designated alternates. Petitioner proceeded with multiple appeals before the Board of Immigration Appeals ("BIA") and the Ninth Circuit. Currently, Petitioner is subject to an administratively final order of removal, but has appeals pending before the Ninth Circuit challenging the original removal order and the denial of his motion to reopen.
On October 21, 2008, Petitioner was taken into immigration custody. On February 5, 2009, Petitioner filed his Petitioner [sic] for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). On October 29, 2010, Petitioner filed a Third Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, in which he asserted his detention without a custody hearing violated his due process rights. (Doc. 39).
Petitioner is presently incarcerated in the Federal Detention Center in Eloy, Arizona.
Khalafala v. Kane, No. CV-09-231-PHX-ROS (D. Az.), "Order" entered Dec. 7, 2011, at 1-2.
The District Court in Arizona granted plaintiff's habeas petition, directing that plaintiff be released from custody within 60 days unless the government granted plaintiff a bond hearing, or showed that plaintiff had already received such a hearing. Id. at 4-5. Plaintiff appealed the decision to the Court of Appeals for the Ninth Circuit, which appeal was dismissed by the Court of Appeals on February 24, 2012. See Khalafala v. Kane, No. CV-09-0231-PHXROS, Docket Nos. 61 and 64. It is unclear from the current record whether plaintiff remains in immigration custody. The court takes judicial notice of the District of Arizona's December 7, 2011 order. See, e.g., Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).
Based on this court's review of plaintiff's response to the order to show cause, the complaint, and the order of the District of Arizona, the court will find that plaintiff is not a prisoner as that term is defined in 28 U.S.C. § 1915(h). Instead, plaintiff is a civil detainee, and not subject to the "three strikes" provision of the PLRA. See 28 U.S.C. § 1915(g).
Upon review of plaintiff's financial affidavit, the court will grant plaintiff's motion to proceed in forma pauperis. See 28 U.S.C. § 1915(a)(1). Under 28 U.S.C. § 1915(e), when a complaint is filed in forma pauperis, the court "shall dismiss the case at any time of the court determines that....the action or appeal is frivolous or malicious; [or] fails to state a claim upon which relief can be granted." See 28 U.S.C. § 1915(e)(2)(B)(i-ii).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 ...