Ackers v. Mayorkas ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GREGORY ACKERS, an individual, Case No.: 21-CV-1010 JLS (DEB) 12 Plaintiff, ORDER DISMISSING PLAINTIFF’S 13 v. FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND 14 ALEJANDRO MAYORKAS; CENTER FOR DISEASE CONTROL; and 15 (ECF No. 5) GOVERNOR GAVIN NEWSOM, 16 Defendants. 17 18 Presently before the Court is Plaintiff Gregory Ackers’s First Amended Complaint 19 (“FAC,” ECF No. 5). Plaintiff, proceeding pro se, filed an amended complaint against 20 Secretary of Homeland Security Alejandro Mayorkas and California Governor Gavin 21 Newsom (collectively, “Defendants”). Plaintiff alleges that Defendants are involved in a 22 scheme related to immigration that involves “Slavery, Concubinage, Indentured Servitude 23 & Child Trafficking.” See FAC at 1. The Court previously dismissed Plaintiff’s complaint 24 as frivolous. See ECF No. 4. Having carefully considered Plaintiff’s FAC and the 25 applicable law, the Court DISMISSES Plaintiff’s FAC WITHOUT LEAVE TO 26 AMEND. 27 /// 28 /// 1 SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) 2 I. Standard of Review 3 Because Plaintiff is proceeding in forma pauperis (“IFP”), his FAC requires a pre- 4 answer screening pursuant to 28 U.S.C. § 1915(e)(2). See, e.g., Lorretz v. Jewish Fed’n, 5 No. 12-CV-1055-BEN NLS, 2012 WL 1850957, at *1 (S.D. Cal. May 18, 2012) (screening 6 amended complaint filed by plaintiff proceeding IFP and pro se and noting screening is 7 “mandatory”); accord Contreras v. Vazquez, No. 09CV1267-IEG(CAB), 2009 WL 8 3248088, at *2 (S.D. Cal. Oct. 7, 2009) (noting, as to amended complaint, that, “as the 9 Court indicated when it dismissed in part Plaintiff’s original complaint, the Court is under 10 a continuing duty to dismiss an in forma pauperis case ‘any time’ the Court determines 11 that the action ‘fails to state a claim on which relief may be granted’” and engaging in 12 screening) (citing 28 U.S.C. § 1915(e)(2)(B)(ii)). 13 Under 28 U.S.C. § 1915(e)(2), the Court must sua sponte dismiss a complaint, or 14 any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages 15 from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 16 2000) (en banc). “The purpose of [screening] is ‘to ensure that the targets of frivolous or 17 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 18 903, 920 n.1 (9th Cir. 2014) (citations omitted). 19 “The standard for determining whether a plaintiff has failed to state a claim upon 20 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 21 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 22 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain sufficient factual 23 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 24 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 25 1121. Detailed factual allegations are not required, but “[t]hreadbare recitals of the 26 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 27 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 28 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 1 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 2 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 3 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 4 Further, “[w]hile factual allegations are accepted as true, legal conclusions are not.” 5 Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June 6 28, 2012) (citing Iqbal, 556 U.S. at 678). Courts cannot accept legal conclusions set forth 7 in a complaint if the plaintiff has not supported his contentions with facts. Id. (citing Iqbal, 8 556 U.S. at 679). 9 Courts have a duty to construe a pro se litigant’s pleadings liberally. See Karim- 10 Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The district court should 11 grant leave to amend if it appears “at all possible that the plaintiff can correct the defect,” 12 unless the court determines that “the pleading could not possibly be cured by the allegation 13 of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc) (citing 14 Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995); Balistreri v. Pacifica Police Dep’t, 15 901 F.2d 696, 701 (9th Cir. 1990)). 16 II. Plaintiff’s Factual Allegations 17 In his FAC, Plaintiff alleges “that untold thousands of these young females, from all 18 corners of the world, are being illicitly trafficked across international & state borders, for 19 the express purpose of criminality.” FAC ¶ 4. Plaintiff alleges that “roughly, 25% of 20 detainee/refugees” are victims of sex trafficking. Id. at 1. Plaintiff asserts that “elected & 21 unelected American politicians (alongside their cohorts in a corrupt media) have taken 22 great pains to conceal from the American public; that Slavery, Concubinage, Indentured 23 Servitude & Child Trafficking are being transported across International & U.S. boundaries 24 by the above-named politicians.” Id. Plaintiff alleges that “Dft Mayorkas, in acting as an 25 unelected co-conspirator, enacts NEGLIGENCE alongside Dft Newsom in re; these 26 egregious activities.” Id. ¶ 4 (emphasis in original). Based on these facts, Plaintiff asserts 27 claims against Defendants for (1) violation of 8 U.S.C. § 1231 (detention and removal of 28 /// 1 aliens ordered removed); (2) human trafficking in violation of 18 U.S.C. § 2421; (3) breach 2 of contract; (4) breach of fiduciary duty; and (5) negligence. FAC ¶¶ 3–7. 3 The Court finds that Plaintiff’s FAC is frivolous. A complaint is frivolous when 4 “the facts alleged rise to the level of the irrational or the wholly incredible, whether or not 5 there are judicially noticeable facts available to contradict them.” Denton v. Hernandez, 6 504 U.S. 25, 25–26 (1992). “[A] complaint . . . is frivolous where it lacks an arguable basis 7 either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). To determine 8 whether a complaint is frivolous, the court need not accept the allegations as true, but must 9 “pierce the veil of the complaint’s factual allegations,” id. at 327, to determine whether 10 they are “‘fanciful,’ ‘fantastic,’ [or] ‘delusional.’” Denton, 504 U.S. at 33 (quoting Neitzke, 11 490 U.S. at 328). 12 This Court finds no rational factual basis for Plaintiff’s claims. Plaintiff has sued 13 public government figures and alleges a criminal conspiracy of sex trafficking for which 14 there are no tangible alleged facts. See generally FAC. The laws cited do not provide an 15 appropriate cause of action for a private citizen to bring a lawsuit.1 The Court finds that 16 Plaintiff “lacks an arguable basis” for bringing this case. Neitzke, 490 U.S. at 325. 17 Plaintiff’s allegations are conspiracy theories that “rise to the level of the irrational or the 18 wholly incredible.” Denton, 504 U.S. at 33. Based on the entirety of the FAC, the Court 19 finds Plaintiff’s allegations irrational, delusional, and wholly incredible. 20 /// 21 22 1 Plaintiff brings claims pursuant to 8 U.S.C. § 1231 and 18 U.S.C. § 2421. Regarding § 1231, the statute 23 explicitly precludes a private right of action. See 8 U.S.C. § 1231(a)(4)(D) (precluding a private right of 24 action to force any state or federal official “to compel the release, removal, or consideration for release or removal of any alien”). Regarding § 2421, nothing indicates a legislative intent to create private causes 25 of action for violations of this statute. See generally 18 U.S.C. § 2421. “[I]ndividuals rarely have an implied private cause of action for violations of criminal statutes.” Tuomela v. Waldorf-Astoria Grand 26 Wailea Hotel, No. CV 20-00117 JMS-RT, 2020 WL 3490027, at *2 (D. Haw. June 26, 2020) (citations omitted); see also Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, 511 U.S. 164, 190 (1994) 27 (“[W]e refuse[ ] to infer a private right of action from ‘a bare criminal statute’ . . . [a]nd we have not 28 suggested that a private right of action exists for all injuries caused by violations of criminal prohibitions.” 1 Furthermore, the Court finds that Plaintiff does not have standing to bring the present 2 action. In order to bring a case in federal court, a plaintiff must demonstrate he or she has 3 “standing.” U.S. Const., Art. III; Clapper v. Amnesty Intern. U.S.A., 568 U.S. 398, 408 4 (2013). The United States Supreme Court has explained the concept of standing as follows: 5 To establish Article III standing, an injury must be concrete, particularized, and actual or imminent; fairly traceable to the 6 challenged action; and redressable by a favorable ruling. 7 Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that 8 the alleged injury is not too speculative for Article III purposes— 9 that the injury is certainly impending. Thus, we have repeatedly reiterated that “threatened injury must be certainly impending to 10 constitute injury in fact, and that [a]llegations of possible future 11 injury” are not sufficient. 12 13 Clapper, 568 U.S. at 409 (internal citations and quotations omitted). Plaintiff does not 14 allege that he personally experienced any of the violations about which he is complaining. 15 See generally FAC. Therefore, Plaintiff lacks standing to assert the present claims. See 16 Powers v. Ohio, 499 U.S. 400, 410 (1991) (“[A] litigant must assert his or her own legal 17 rights and interests, and cannot rest a claim to relief on the legal rights or interests of third 18 parties.”). For this reason, the Court lacks jurisdiction to hear Plaintiff’s claims. Hoffmann 19 v. Pulido, 928 F.3d 1147, 1152 (9th Cir. 2019) (“[A] dismissal for lack of standing is a 20 dismissal for lack of subject-matter jurisdiction[.]”). 21 Having determined that the FAC is frivolous as a matter of law and Plaintiff lacks 22 standing to bring the asserted claims, the Court DISMISSES Plaintiff’s FAC. See Lopez, 23 203 F.3d at 1127 n.8. 24 CONCLUSION 25 Based on the foregoing, the Court DISMISSES Plaintiffs’ First Amended 26 Complaint (ECF No. 5). Because amendment would be futile, dismissal is WITHOUT 27 LEAVE TO AMEND. See Lopez v. Smith, 203 F.3d 1122, 1127 n.8 (9th Cir. 2000) (en 28 banc) (noting that if a claim is classified as frivolous, “there is by definition no merit to the 1 |/underlying action and so no reason to grant leave to amend.”). Further, the Court 2 || CERTIFIES that an IFP appeal from this Order would be frivolous and therefore would 3 ||not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See Miller v. Penish, No. 4 || 3:16-CV-3078-AJB-MDD, 2017 WL 1094083, at *5 (S.D. Cal. Mar. 23, 2017) (citations 5 ||omitted). Because this concludes the litigation in this matter, the Clerk of the Court 6 || SHALL CLOSE the file. 7 IT IS SO ORDERED. 8 Dated: September 13, 2021 . tt f te 9 on. Janis L. Sammartino 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28