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Fernandez v. United States

United States District Court, S.D. California

May 5, 2014

JESUS NARANJO FERNANDEZ, Detainee No. A200156060, Plaintiff,
v.
UNITED STATES, et al., Defendants.

ORDER:(1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS (ECF Doc. No.2) AND (2) DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)

WILLIAM Q. HAYES, District Judge.

Jesus Naranjo Fernandez ("Plaintiff"), currently detained at the San Diego Correctional Facility located in San Diego, California, and proceeding pro se, has filed a civil complaint pursuant to 42 U.S.C. § 1983, Bivens v. Six Unknown Names Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b)(1).

Plaintiff claims his due process rights were violated by the United States, the U.S. Attorney General, the Secretary of the Department of Homeland Security, a U.S. Immigrations and Customs Office Field Officer, the Corrections Corporation of America ("CCA") and CCA's Warden when they denied him a salary for work he performed as barber while detained at CCA from September 26, 2013 through October 22, 2013 See Compl. at 7-8.

Plaintiff has not prepaid the filing fee required to commence a civil action; instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 2).

I

MOTION TO PROCEED IFP

All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus must pay a filing fee of $400.[1] See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Gook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, "[u]nlike other indigent litigants, prisoners proceeding IFP must pay the full amount of filing fees in civil actions and appeals pursuant to the PLRA [Prison Litigation Reform Act]." Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002). As defined by the PLRA, a "prisoner" is "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 28 U.S.C. § 1915(h) Under this definition, "an alien detained by the INS pending deportation is not a prisoner' within the meaning of the PLRA, " because deportation proceedings are civil, rather than criminal in nature, and an alien detained pending deportation has not necessarily been "accused of, convicted of, sentenced or adjudicated delinquent for, a violation of criminal law." Agyeman, 296 F.3d at 886. Thus, because Plaintiff claims he is an immigration detainee, and not a "prisoner" as defined by 28 § 1915(h), the filing fee provisions of 28 U.S.C. § 1915(b) do not apply to him. See Compl. at 2.

Accordingly, the Court has reviewed Plaintiffs affidavit of assets and finds it is sufficient to show that he is unable to pay the fees or post securities required to maintain this action. Therefore, Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 2) is GRANTED.

II.

SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)

Any complaint filed by a person proceeding IFP is subject to sua sponte dismissal by the Court to the extent it contains claims which are "frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); 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."); 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.")

First, to the extent Plaintiff brings his action against the Corrections Corporation of America ("CCA"), a private corporation that contracts with the federal government to house alien detainees awaiting deportation, and Warden Lawrence, a CCA employee, under the APA, see Compl. at 1, 3, 4; neither of these Defendants are an agency of the Federal Government nor are they employees of the Federal Government. Therefore, any decisions made by the CCA or its employees are not reviewable under the APA. See Newton-Nations v. Betlach, 660 F.3d 370, 378 (9th Cir. 2011) ("The Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706 provides for judicial review of federal agencies' actions."); Spokane County Legal Services, Inc. v. Legal Services Corp., 614 F.2d 662, 669 (1980) (finding decisions made by non-profit legal services provider were not subject to APA because it was "not an agency of the federal government.").

Second, Plaintiff seeks to bring a claim against the United States pursuant to the FTCA, which waives sovereign immunity for certain torts committed by federal employees. FDIC v. Meyer, 510 U.S. 471, 475 (1994). The FTCA provides that district courts have exclusive jurisdiction of civil actions against the United States for money damages "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee" of the federal government while acting within the scope of his office or employment. 28 U.S.C. § 1346(b); Meyer, 510 U.S. at 475. However, Plaintiff's Complaint fails to allege, among other things necessary to state a valid claim under the FTCA, that he exhausted his administrative remedies under the FTCA prior to filing suit. See McNeil v. United States, 508 U.S. 106, (1993) ("The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies."); Gillespie Civiletti, 629 F.2d 637, 640 (9th Cir. 1980) ("The timely filing of an administrative claim is a jurisdictional prerequisite to the bringing of a suit under the FTCA, and, as such, should be affirmatively alleged in the complaint."). Based on this fundamental jurisdictional defect, Plaintiff's FTCA claims must be dismissed for failing to state a claim pursuant to 28 U.S.C. § 1915(0(2). See Lopez, 203 F.3d at 1127.

Third, to the extent Plaintiff seeks to hold the CCA liable for alleged civil rights violations pursuant to Bivens, 403 U.S. at 388, his claims also fail. Bivens established "compensable injury to a constitutionally protected interest [by federal officials alleged to have acted under color of federal law] could be vindicated by a suit for damages invoking the general federal question jurisdiction of the federal courts [pursuant to 28 U.S.C. § 1331]." Butz v. Economou 438 U.S. 478, 486 (1978)

Bivens provides that "federal courts have the inherent authority to award damages against federal officials to compensate plaintiffs for violations of their constitutional rights." Western Center for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000). However, a Bivens action may only be brought against the responsible federal official in his or her individual capacity. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1988).

Bivens does not provide a remedy for alleged wrongs committed by a private entity alleged to have denied Plaintiff's constitutional rights under color of federal law. Correctional Services Corp. v. Malesko, 534 U.S. 61, 69 (2001) ("[T]he purpose of Bivens is to deter the officer, ' not the agency.") (quoting Meyer, 510 U.S. at 485) Malesko, 534 U.S. at 66 n.2 (holding that Meyer "forecloses the extension of Bivens to private entities."). Accordingly, Plaint Ms claims against the CCA must also be dismissed pursuant to 28 U.S.C. § 1915(e)(2) Lopez, 203 F.3d at 1127.

In addition, the Supreme Court recently held that a prisoner cannot bring a Bivens action against Warden Lawrence, an employee of the CCA, in federal court either. See Minneci v. Pollard, 132 S.Ct. 617, 626 (2012)

In Minneci, the Supreme Court held that:

where a federal prisoner seeks damages from privately employed personnel working at a privately operated federal prison, where the conduct allegedly amounts to a violation of the Eighth Amendment, and where that conduct is a kind that typically falls within the scope of traditional state tort law (such as the conduct involving improper medical care at issue here), the prisoner must seek a remedy under state tort law. We cannot imply a Bivens remedy in such a case.

Id.

Finally, to the extent Plaintiff does name U.S. Attorney General Eric Holder, Janet Napolitano, the former Secretary of the Department of Homeland Security, and Robin Baker, the Director of the ICE Field Office in San Diego-all federal actors, and all alleged to be "responsible" for the general implementation and enforcement of immigration laws-as Defendants, and he seeks damages against them under Bivens, he nevertheless has failed to allege any plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This is primarily because "vicarious liability is inapplicable to Bivens ... suits, " id. at 676, and secondarily because Plaintiff has failed to allege that any of them "through [their] own individual actions, ... violated the Constitution." Id .; cf. Coakley v. Murphy, 884 F.2d 1218, 1220-1221 (9th Cir. 1989) (prisoner has no liberty or property interest to continue in a work release program); see also Flittie v. Solem, 827 F.2d 276, 279 (8th Cir. 1987) (per curiam) ("Inmates have no constitutional right to be assigned to a particular job."); Ingram v. Papalia, 804 F.2d 595, 596 (10th Cir. 1986) (per curiam) ("The Constitution does not create a property or liberty interest in prison employment.").

III.

CONCLUSION AND ORDER

Good cause appearing therefor, IT IS HEREBY ORDERED that:

1. Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 2) is GRANTED.

IT IS FURTHER ORDERED that:

2. Plaintiff's Complaint is DISMISSED without prejudice for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(b). However, Plaintiff is GRANTED forty five (45) days leave from the date this Order is filed in which to file a First Amended Complaint which cures the deficiencies of pleading noted above. Plaintiff's Amended Complaint must be complete in itself without reference to the superseded pleading. See S.D. CAL. CIVLR 15.1. Defendants not named and any claim not re-alleged in the Amended Complaint will be considered waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).


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