Opinion
Civil No. 12cv2684 WQH (BLM)
12-26-2012
AMINA SALVADOR, Detainee No. A200968077, Plaintiff, v. MISS CASTRAHOLMES, Defendant.
ORDER:
(1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2];
(2) DENYING MOTION TO APPOINT COUNSEL [ECF No. 3]; and
(3) SUA SPONTE DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM
Amina Salvador ("Plaintiff), currently housed at the San Diego Detention Center located in San Diego, California, and proceeding pro se, has filed a civil action. Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, she has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [ECF No. 2], along with a Motion to Appoint Counsel [ECF No. 3].
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 $350. See 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to pay only if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Prisoners granted leave to proceed IFP however, remain obligated to pay the entire fee in installments, regardless of whether the action is ultimately dismissed for any reason. See 28 U.S.C. § 1915(b)(1) & (2).
Plaintiff has indicated that she is incarcerated. (ECF No. 2 at 1.) However, it is not clear from her filings whether she is a pre-trial detainee awaiting trial for criminal charges in State or Federal Court, a Bureau of Immigration and Customs Enforcement ("ICE") detainee or whether she is serving a sentence following a criminal conviction in State or Federal court.
The Court finds that Plaintiff has submitted a certified copy of her trust account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Plaintiff's trust account statement shows that she has insufficient funds from which to pay an initial partial filing fee.
Accordingly, the Court GRANTS Plaintiff's Motion to Proceed IFP [ECF No. 2] and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the Court further orders the Warden of the San Diego Detention Center to garnish the entire $350 balance of the filing fees owed in this case, collect and forward them to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).
II.
MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff also requests the appointment of counsel to assist her in prosecuting this civil action. The Constitution provides no right to appointment of counsel in a civil case, however, unless an indigent litigant may lose her physical liberty if she loses the litigation. Lassiter v. Dept. of Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts are granted discretion to appoint counsel for indigent persons. This discretion may be exercised only under "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). "A finding of exceptional circumstances requires an evaluation of both the 'likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.' Neither of these issues is dispositive and both must be viewed together before reaching a decision." Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
The Court denies Plaintiff's request without prejudice because, for the reasons set forth below, neither the interests of justice nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risky, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.
III.
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."). "[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (§ 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6).").
Plaintiff's Complaint contains virtually no factual allegations. Plaintiff alleges "rape, attempted murder and hostage holding" and Defendant Castraholmes is "guilty of the said crimes." (Compl. at 1.) As an initial matter, the Court takes judicial notice that Plaintiff filed eighteen (18) separate actions on November 1, 2012 in this Court. A court "'may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue."' Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).
In each one of these actions, Plaintiff names one defendant and each complaint contains virtually the identical allegations to the action currently before this Court. See Salvador v. Bias, S.D. Cal. Civil Case No. 12cv2677 DMS (WVG); Salvador v. Hudson, S.D. Cal. Civil Case No. 12cv2678 DMS (PCL); Salvador v. Morrell, S.D. Cal. Civil Case No. 2679 GPC (BLM); Salvador v. Ahmed, S.D. Cal. Civil Case No. 12cv2680 BEN (NLS); Salvador v. Hansberg, S.D. Cal. Civil Case No. 12cv2681 CAB (WMc); Salvador v. Perry, S.D. Cal. Civil Case No. 12cv2682 BTM (PCL); Salvador v. Bias, S.D. Cal. Civil Case No. 12cv2683 CAB (WVG); Salvador v. George, S.D. Cal. Civil Case No. 12cv2685 BEN (RBB); Salvador v. Stransberg, S.D. Cal. Civil Case No. 12cv2686 H (WMc); Salvador v. Shorn/elder, S.D. Cal. Civil Case No. 12cv2687 CAB (MDD); Salvador v. Perry, S.D. Cal. Civil Case No. 12cv2688 BEN (RBB); Salvador v. Boktar, S.D. Cal. Civil Case No. 12cv2689; Salvardor v. Williams, S.D. Cal. Civil Case No. 12cv2690 MMA (JMA); Salvador v. Cheema, S.D. Cal. Civil Case No. 12cv2691 WQH (RBB); Salvador v. Rodwell, S.D. Cal. Civil Case No. 12cv2692 GPC (NLS); Salvador v. Edwards, 12cv2693 J AH (PCL); Salvador v. Morales, S.D. Cal. Civil Case No. 12cv2694 GPC (WVG).
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Plaintiff does not identify the constitutional or federal statutory basis for this suit. Accordingly, because Plaintiff is proceeding pro se, the Court would generally consider her claims liberally to arise under either the Civil Rights Act, 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Fed. Narcotics Agents, 403 U.S. 388 (1971). See Haines v. Kerner, 404 U.S. 519-20 (1972) (noting that allegations asserted by pro se petitioners, "however inartfully pleaded," are held "to less stringent standards than formal pleadings drafted by lawyers"),
To state a claim under § 1983, Plaintiff must allege that: (1) the conduct she complains of was committed by a person acting under color of state law; and (2) that conduct violated a right secured by the Constitution and laws of the United States. Humphries v. County of Los Angeles, 554 F.3d 1170, 1184 (9th Cir. 2009) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). To the extent Plaintiff seeks to sue this Defendant pursuant to § 1983, her Complaint fails to allege any facts sufficient to show that this Defendant acted "under color of state law." Franklin v. Fox, 312 F.3d 423, 444 (9th Cir.2001); see also Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) ("While generally not applicable to private parties, a § 1983 action can lie against a private party" only if he is alleged to be "a willful participant in joint action with the State or its agents.") (citation and quotation marks omitted). There are no factual allegations identifying Defendant Castraholmes as a state actor.
To the extent that Plaintiff is seeking to bring this suit pursuant to Bivens, the Court finds again that Plaintiff has failed to state a claim. Bivens established that "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). "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." Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991).
To state a private cause of action under Bivens, Plaintiff must allege: (1) that a right secured by the Constitution of the United States was violated, and (2) that the violation was committed by a federal actor. Id.; Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 624 (9th Cir. 1988). 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 authorize a suit against the government or its agencies for monetary relief. FDIC v. Meyer, 510 U.S. 471, 486 (1994); Thomas-Lazear v. FBI, 851 F.2d 1202, 1207 (9th Cir. 1988); Daly- Murphy, 837 F.2d at 355.
Nor does Bivens 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."). Again, there are simply no factual allegations that would indicate that Defendant Castraholmes is a federal actor.
Without § 1983, or some other constitutional or federal statutory basis for her suit, this Court lacks subject matter jurisdiction altogether. Bowles v. Russell, 551 U.S. 205, 212 (2007) ("Within constitutional bounds, Congress decides what cases the federal courts have jurisdiction to consider. Because Congress decides whether federal courts can hear cases at all, it can also determine when, and under what conditions, federal courts can hear them.") (citation omitted); see also SEC v. Ross, 504 F.3d 1130, 1140-41 (9th Cir. 2007) (finding the naming of a person in a motion insufficient to commence a civil action against him as a party).
Accordingly, for all the above stated reasons, the Court must dismiss this action but will provide Plaintiff leave to file an Amended Complaint in order to correct the deficiencies of pleading identified in the Court's Order.
IV.
CONCLUSION AND ORDER
Good cause appearing therefor, IT IS HEREBY ORDERED that:
1. Plaintiff's Motion for Appointment of Counsel [ECF No. 3] is DENIED without prejudice.
2. Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 2] is GRANTED.
3. The Warden of the San Diego Detention Center, or his designee, shall collect from Plaintiff's trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the account in an amount equal to twenty percent (20%) of the preceding month's income and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.
4. The Clerk of the Court is directed to serve a copy of this Order on Warden, San Diego Detention Center, P.O. Box 439049, San Diego, California 92163.
IT IS FURTHER ORDERED that:
5. Plaintiff's Complaint is DISMISSED without prejudice for failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2) & § 1915A(b).
6. 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 all the deficiencies of pleading noted above. Plaintiff's Amended Complaint must be complete in itself without reference to his original Complaint. See S.D. CAL. CIVLR 15.1. Defendants not named and all claims not re-alleged in the Amended Complaint will be considered waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). If Plaintiff fails to file an Amended Complaint within 45 days, this action shall remain dismissed without further Order by the Court.
7. The Clerk of Court is directed to mail a Court approved civil rights complaint form to Plaintiff.
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HON. WILLIAM Q. HAYES
United States District Judge