Fierro v. Garland ( 2021 )

1 WO JL 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jose Luis Tapia Fierro, No. CV 21-00814-PHX-JAT (ESW) 10 Plaintiff, 11 v. ORDER 12 Merrick B. Garland, et al., 13 Defendants. 14 15 Plaintiff Jose Luis Tapia Fierro, who is confined in the Arizona State Prison 16 Complex-Florence, has filed a pro se civil rights Complaint (Doc. 1) pursuant to 28 U.S.C. 17 § 1331 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 18 U.S. 388 (1971), an Application to Proceed In Forma Pauperis (Doc. 4), and a Motion in 19 Support of Complaint (Doc. 6). The Court will grant the Application to Proceed, dismiss 20 this action, and deny as moot the Motion in Support of Complaint. 21 I. Application to Proceed In Forma Pauperis and Filing Fee 22 The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 28 23 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 24 § 1915(b)(1). The Court will assess an initial partial filing fee of $46.66. The remainder 25 of the fee will be collected monthly in payments of 20% of the previous month’s income 26 credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 27 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate 28 government agency to collect and forward the fees according to the statutory formula. 1 II. Statutory Screening of Prisoner Complaints 2 The Court is required to screen complaints brought by prisoners seeking relief 3 against a governmental entity or an officer or an employee of a governmental entity. 28 4 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 5 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 6 relief may be granted, or that seek monetary relief from a defendant who is immune from 7 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 8 A pleading must contain a “short and plain statement of the claim showing that the 9 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 10 not demand detailed factual allegations, “it demands more than an unadorned, the- 11 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 12 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Id. 14 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 15 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 16 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 17 that allows the court to draw the reasonable inference that the defendant is liable for the 18 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 19 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 20 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 21 allegations may be consistent with a constitutional claim, a court must assess whether there 22 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 23 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 24 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 25 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 26 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 27 U.S. 89, 94 (2007) (per curiam)). 28 . . . . 1 If the Court determines that a pleading could be cured by the allegation of other 2 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 3 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). 4 Plaintiff’s Complaint will be dismissed for failure to state a claim, without leave to amend 5 because the defects cannot be corrected. 6 III. Complaint 7 In his three-count Complaint,1 Plaintiff sues United States Attorney General 8 Merrick B. Garland and Department of Homeland Security Secretary Alejandro Mayorkas. 9 Plaintiff asserts that he was erroneously deported and illegally imprisoned and detained in 10 violation of the Fourth and Fifth Amendments and United States immigration law. Plaintiff 11 is seeking $12 million in damages. 12 In Count One, Plaintiff alleges that on June 12, 2001, an Immigration Judge (IJ) 13 determined that Plaintiff was removable based on his conviction for involuntary 14 manslaughter, which the IJ concluded was an aggravated felony under the Immigration and 15 Nationality Act (INA). Plaintiff asserts that the IJ “deprived him of appeal rights” as it 16 “was found by a U.S. District Court Judge for the Central District of California . . . that 17 involuntary manslaughter is not an a[ggravated felony].” Plaintiff notes that this claim was 18 previously dismissed as untimely, but contends that “when it comes to a violation of the 19 Constitution, there is no statute of limitations.”2 20 In Count Two, Plaintiff again alleges that he should not have been deported in 2001. 21 According to Plaintiff, he was convicted of attempted illegal reentry in 2002 and was 22 sentenced to a 104-month term imprisonment, which was later reduced to a 77-month term. 23 On March 6, 2007, the Federal Bureau of Prisons released Plaintiff into the custody of 24 Immigration and Customs Enforcement (ICE). He then spent approximately 40 months 25 26 1 Plaintiff describes his Complaint as a “Second (2nd) Round Complaint” based on the existence of a prior action in this Court that was dismissed as barred by the statute of 27 limitations. See Tapia-Fierro v. Sessions, CV 17-04005-PHX-JAT (ESW) (D. Ariz. July 11, 2018), Docs. 15, 16. 28 2 Plaintiff quotes from a January 13, 2021 statement by Rahm Emanuel. 1 being transferred from one ICE facility to another “in a ‘triangle fashion.’” Plaintiff claims 2 he should not have been prosecuted for attempted illegal reentry because the 2001 order of 3 removal was “invalid from its inception.” 4 In Count Three, Plaintiff alleges that ICE initially detained him in the “Atlanta City 5 Department of Corrections,” then at a CoreCivic facility in Lumpkin, Georgia, and then at 6 the Etowah County Jail in Gadsden, Alabama. While in the Etowah County Jail, Plaintiff 7 allegedly went on a hunger strike to protest his “unlawful and prolonged detention” and 8 ICE’s refusal to release him or transfer him to California, where he had a Petition for 9 Review pending in the Ninth Circuit Court of Appeals. Plaintiff was eventually placed in 10 a mental health unit in the “Atlanta, G[eorgia] Department of Corrections,” where he 11 remained for more than a year. During that time, Plaintiff filed a complaint related to his 12 detention in the United States District Court for the Northern District of Georgia. On 13 September 26, 2011, the United States District Court for the Central District of California 14 granted Plaintiff’s second petition for writ of habeas corpus, concluding that the federal 15 government’s continued detention of Plaintiff “would not be authorized under the federal 16 provisions of the INA and would be unconstitutional.” 17 As a result of the conduct alleged in the Complaint, Plaintiff has purportedly 18 suffered psychological damage, pain, anxiety, and mental anguish. 19 IV. Plaintiff’s Claims are Duplicative 20 An in forma pauperis complaint that merely repeats pending or previously litigated 21 claims may be considered abusive and dismissed under 28 U.S.C. § 1915(e). Cato v. 22 United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); Aziz v. Burrows, 976 F.2d 1158 (9th 23 Cir. 1992) (“district courts may dismiss a duplicative complaint raising issues directly 24 related to issues in another pending action brought by the same party”). 25 As Plaintiff acknowledges in his Complaint, the claims he is raising were asserted 26 previously in an action that was dismissed as barred by the statute of limitations. Tapia- 27 Fierro v. Sessions, CV 17-04005-PHX-JAT (ESW) (D. Ariz. July 11, 2018), aff’d, No. 18- 28 1] 16543 (9th Cir. Feb. 25, 2019). They are therefore duplicative, and the Court will dismiss this action accordingly. 3| ITIS ORDERED: 4 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 4) is granted. 5 (2) As required by the accompanying Order to the appropriate government 6) agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee 7| of $46.66. 8 (3) Plaintiff’s Motion in Support of Complaint (Doc. 6) is denied as moot. 9 (4) |The Complaint (Doc. 1) is dismissed for failure to state a claim pursuant to 10| U.S.C. § 1915A(b)(1), and the Clerk of Court must enter judgment accordingly. 11 (5) The Clerk of Court must make an entry on the docket stating that the 12 | dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g). 13 (6) | The docket shall reflect that the Court certifies, pursuant to 28 U.S.C. 14| § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this 15 | decision would not be taken in good faith. 16 Dated this Ist day of July, 2021. 17 18 a 3 19 0 James A. Teil Org Senior United States District Judge 21 22 23 24 25 26 27 28