Anaya v. Vasquez ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANIEL RIVERA ANAYA, Case No.: 24cv0863-CAB (JLB) BOOKING #44512359, 12 ORDER: Plaintiff, 13 vs. (1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS, 15 WARDEN V. VASQUEZ, ASSISTANT (2) DENYING REQUEST FOR 16 WARDEN T. HARTLEY and HEALTH SERVICE AS MOOT, and SERVICES ADMINISTRATOR 17 LOVELESS, (3) DISMISSING COMPLAINT 18 Defendants. PURSUANT TO 28 U.S.C. 19 § 1915(e)(2)(B) 20 21 22 Plaintiff Daniel Rivera Anaya, detained at the GEO Western Region Detention 23 Facility in San Diego, California, is proceeding pro se in this civil rights action. (ECF No. 24 1.) Plaintiff claims he was denied his right to adequate medical care, was subjected to cruel 25 and unusual punishment, and was deprived of due process, because Defendants have not 26 provided him with prescription eyeglasses. (Id. at 3-5.) Plaintiff has also filed a Motion 27 to Proceed In Forma Pauperis (“IFP”) and a request for service of his Complaint. (ECF 28 No. 2-3.) 1 I. Motion to Proceed IFP 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55, 5 although the administrative fee does not apply to persons granted leave to proceed IFP. 6 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 7 Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure to 8 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 9 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). A prisoner 10 seeking leave to proceed IFP must submit a “certified copy of the trust fund account 11 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 12 the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 13 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses an 14 initial payment of 20% of (a) the average monthly deposits in the account for the past six 15 months, or (b) the average monthly balance in the account for the past six months, 16 whichever is greater, unless the prisoner has insufficient assets. See 28 U.S.C. 17 § 1915(b)(1)&(4); Bruce v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who proceed IFP 18 must pay any remaining balance in “increments” or “installments,” regardless of whether 19 their action is ultimately dismissed. 28 U.S.C. § 1915(b)(1)&(2); Bruce, 577 U.S. at 84. 20 As defined by the PLRA, a “prisoner” is “any person incarcerated or detained in any 21 facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, 22 violations of criminal law or the terms and conditions of parole, probation, pretrial release, 23 or diversionary program.” 28 U.S.C. § 1915(h). A person detained and subject to removal 24 or deportation, however, is not a “prisoner” under § 1915(h), “so long as he does not also 25 face criminal charges.” Agyeman v. INS, 296 F.3d 871, 885-86 (9th Cir. 2002). 26 Plaintiff provides no details regarding the reason for his detention at the GEO 27 Western Region Detention Facility when he initiated this action. To the extent he is 28 detained by the United States Immigration and Customs enforcement pending removal 1 without criminal charges, he does not qualify as a “prisoner” as defined by 28 U.S.C. 2 § 1915(h), which, if true, means the filing fee provisions of 28 U.S.C. § 1915(b) would not 3 be applicable to this case. Agyeman, 296 F.3d at 885-86. A review of Plaintiff’s affidavit 4 of assets (see ECF No. 2 at 2-5), shows he is unable at this time to pay the fees or post 5 securities required to maintain a civil action. See S.D. CAL. CIVLR 3.2(d). Accordingly, 6 Plaintiff’s Motion to Proceed IFP is GRANTED.1 7 II. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) 8 A. Standard of Review 9 Irrespective of whether Plaintiff is a prisoner or a detainee, a complaint filed by any 10 person proceeding IFP is subject to sua sponte dismissal if it is “frivolous, malicious, fail[s] 11 to state a claim upon which relief may be granted, or seek[s] monetary relief from a 12 defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 13 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the provisions of 28 U.S.C. 14 § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th 15 Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits but requires a district court to 16 dismiss an in forma pauperis complaint that fails to state a claim.”) 17 “The standard for determining whether a plaintiff has failed to state a claim upon 18 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 19 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 20 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint to “contain sufficient 21 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 22 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 23 24 25 1 If Plaintiff is a prisoner within the meaning of the PLRA filing fee provision the Court would still grant him leave to proceed IFP. However, based on his certified trust account 26 statement (see ECF No. 2 at 4), no initial filing fee would be collected, and he would remain 27 obligated to pay the remaining $350 in monthly installments even if this action is ultimately dismissed. Bruce, 577 U.S. at 84; 28 U.S.C. § 1915(b)(1)&(2). The Court may determine 28 1 U.S. 544, 570 (2007). Detailed factual allegations are not required, but “[t]hreadbare 2 recitals of the elements of a cause of action, supported by mere conclusory statements, do 3 not suffice.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible 4 claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on 5 its judicial experience and common sense.” Id. The “mere possibility of misconduct” or 6 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting that 7 standard. Id. 8 B. Plaintiff’s Allegations 9 Plaintiff alleges he was booked into the GEO Western Region Detention Facility on 10 February 2, 2024, and that based on an initial treatment referral he was sent to an offsite 11 optometrist on March 8, 2024. (ECF No. 1 at 3.) An eye examination revealed Plaintiff 12 has “an acute medical need for eyeglasses and on that basis the specialist made the note 13 recommendation to GEO Health Services indicating that I have a serious medical need and 14 issued a prescription for the necessary eyeglasses to be provided by GEO.” (Id.) Plaintiff 15 alleges that Defendant GEO Health Services Administrator Loveless, although aware of 16 Plaintiff’s need for eyeglasses, “claims there is nothing that can be done to expedite the 17 issuance of” the eyeglasses, thereby subjecting Plaintiff to pain and suffering from an 18 excessive risk of eyesight degeneration. (Id.) 19 Plaintiff alleges he attempted to use the institutional grievance process to challenge 20 the delay in providing eyeglasses, but Defendants Warden Vasquez and Grievance 21 Coordinator/Assistant Warden Hartley refused to submit a request to expedite issuance of 22 the eyeglasses, subjecting him to cruel and unusual punishment. (Id. at 4.) He alleges the 23 grievance was disregarded by Defendant Hartley because it was fraudulently signed by the 24 Health Services Administrator rather than the facility administrator. (Id.) Finally, Plaintiff 25 alleges that the GEO Western Region Detention Facility Detainee Handbook states that the 26 health and safety of detainees is of utmost importance and that upon medical assessment 27 appropriate action will be taken, but the handbook also states that eyeglasses will not be 28 provided to detainees. (Id. at 5.) Plaintiff claims that because he has no one who can mail 1 him eyeglasses, the conflict in the handbook amounts to a violation of due process and 2 shows the GEO Western Region Detention Facility has a policy of depriving detainees of 3 adequate medical care. (Id.) 4 C. Analysis 5 The Defendants named in this action include employees of the GEO Group, Inc., a 6 private corporation operating the GEO Western Region Detention Facility under a contract 7 with the federal government who are sued pursuant to Bivens v. Six Unknown Named 8 Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Van Strum v. Lawn, 940 9 F.2d 406, 409 (9th Cir. 1991) (Bivens provides a private right of action against individuals 10 who, acting under color of federal law, violate federal constitutional or statutory rights); 11 Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004) (detainees 12 in a private facility run under a federal government contract are required to bring 13 constitutional claims in federal court, if at all, pursuant to Bivens). 14 However, Plaintiff cannot maintain a Bivens cause of action against the individual 15 Defendants for an Eighth Amendment violation arising from the delay in providing him 16 with, or denial of, prescription eyeglasses. “Where, as here, a federal prisoner seeks 17 damages from privately employed personnel working at a privately operated federal prison, 18 where the conduct allegedly amounts to a violation of the Eighth Amendment, and where 19 that conduct is of a kind that typically falls within the scope of traditional state tort law . . ., 20 the prisoner must seek a remedy under state tort law. We cannot simply imply a Bivens 21 remedy in such a case.” Minneci v. Pollard, 565 U.S. 118, 131 (2012) (federal inmate has 22 no Bivens claims against private employees working at a privately operated federal prison 23 for denial of medical care or similar conduct that typically falls within the scope of 24 traditional state tort law). The Ninth Circuit has applied Pollard to preclude Bivens 25 remedies for claims against employees of the GEO Group, Inc. in its capacity of operating 26 a federal immigration detention facility. See Karboau v. Clark, 577 Fed.Appx. 678, 679 27 (9th Cir. 2014) (affirming dismissal of Eighth Amendment claims against individual 28 employees of GEO Group, Inc., because the exclusive remedy is pursuant to state tort law). 1 Neither has Plaintiff stated a due process claim based on the handling of his 2 grievance. There is no independent constitutional right to an inmate administrative appeal 3 or grievance system. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (“[I]nmates 4 lack a separate constitutional entitlement to a specific prison grievance procedure.”), citing 5 Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (“There is no legitimate claim of 6 entitlement to a [state prison] grievance procedure.”); see also Flick v. Alba, 932 F.2d 728, 7 729 (8th Cir. 1991) (noting that although prisoners have a First Amendment right to petition 8 the government for redress of grievances and access to the courts, those rights are “not 9 compromised by the prison’s refusal to entertain his grievance.”) Thus, with respect to the 10 allegations against the Defendants based on their role in the processing of Plaintiff’s 11 grievance, the Complaint fails to state a due process claim because there is no constitutional 12 requirement regarding how a grievance system is operated. Ramirez, 334 F.3d at 860; 13 Mann, 855 F.2d at 640; see also Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000) 14 (noting that identification of a constitutionally protected interest is required to state a 15 procedural due process claim), citing Portman v. County of Santa Clara, 995 F.2d 898, 904 16 (9th Cir. 1993). 17 Accordingly, the Court sua sponte dismisses all claims in the Complaint against all 18 Defendants because as currently drafted the Complaint fails to state a claim upon which 19 relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); Watison, 668 F.3d at 1112. 20 D. Leave to Amend 21 In light of Plaintiff’s pro se status, the Court grants him leave to amend to attempt 22 to sufficiently allege a claim against the dismissed Defendants if he can. See Rosati v. 23 Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro 24 se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it 25 is absolutely clear that the deficiencies of the complaint could not be cured by 26 amendment.’”), quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 27 III. Request for Service of the Complaint 28 Plaintiff’s request to serve his Complaint (ECF No. 3), is DENIED as moot. 1 Conclusion and Orders 2 Good cause appearing, the Court: 3 1. GRANTS Plaintiff's Motion to Proceed IFP (ECF No. 2). 4 2. DENIES Plaintiff's Request for Service as moot (ECF No. 3). 5 3. DISMISSES all claims against all Defendants in the Complaint without 6 || preyudice and with leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). 7 4. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 8 || which to file a First Amended Complaint which cures the deficiencies of pleading noted in 9 || this Order with respect to any or all other Defendants. Plaintiff's First Amended Complaint 10 |}must be complete by itself without reference to his original Complaint; Defendants not 11 ||/named and any claims not re-alleged in the First Amended Complaint will be considered 12 || waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 13 || 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.’’); 14 || Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed 15 || with leave to amend which are not re-alleged in an amended pleading may be “considered 16 || waived if not repled.”) If Plaintiff fails to amend within the time provided, the Court will 17 enter a final Order dismissing this civil action. See Lira vy. Herrera, 427 F.3d 1164, 1169 18 Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his 19 ||}complaint, a district court may convert the dismissal of the complaint into dismissal of the 20 entire action.’’) 21 IT IS SO ORDERED. 22 ||Dated: May 17, 2024 € 23 Hon. Cathy Ann Bencivengo 24 United States District Judge 25 26 27 28 7