Limpin v. United States

• Decision Date: 26 October 2017
• Docket Number: Case No.: 17-CV-1729-JLS (WVG)
• Parties: MELCHOR KARL T. LIMPIN, et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — Southern District of California

MELCHOR KARL T. LIMPIN, et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

Case No.: 17-CV-1729-JLS (WVG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

October 26, 2017

ORDER: (1) GRANTING PLAINTIFF LIMPIN'S MOTION TO PROCEED IFP; (2) DISMISSING PLAINTIFFS MENDOZA AND AGUSTIN WITHOUT PREJUDICE; (3) DIRECTING U.S. MARSHAL TO EFFECT SERVICE; (4) DENYING MOTION FOR PRELIMINARY INJUNCTION; AND (5) DENYING MOTION FOR CLASS CERTIFICATION

(ECF Nos. 2, 3, 4, 5, 6)

Presently before the Court are Plaintiff Melchor Karl T. Limpin's Motion to Proceed In Forma Pauperis ("IFP"), (ECF No. 2); Plaintiff Froilan Q. Mendoza's Motion to Proceed IFP, (ECF No. 3); Plaintiff Jayson San Agustin's Motion to Proceed IFP, (ECF No. 4); Plaintiffs' Motion for Preliminary Injunction, (ECF No. 5); and Plaintiffs' Motion for Class Certification and Appointment of Class Counsel, (ECF No. 6). Having considered the pending Motions and the law, the Court rules as follows.

IFP MOTIONS

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. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if he is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A federal court may authorize the commencement of an action without the prepayment of fees if the party submits an affidavit, including a statement of assets, showing that he is unable to pay the required filing fee. 28 U.S.C. § 1915(a).

In the present case, Plaintiff Limpin submitted an affidavit indicating his total monthly income is $1,362 (from Social Security Administration disability and food stamps), he is not employed, is disabled, and his total monthly expenses are $1,331.60. (ECF No. 2.) Plaintiff indicates he has no assets and has $8.92 in his bank account. (Id. at 2-3.) Given the foregoing, the Court concludes that Plaintiff's application demonstrates he is unable to pay the requisite fees and costs. Accordingly, the Court GRANTS Plaintiff Limpin's Motion to Proceed IFP, (ECF No. 2).

Plaintiffs Mendoza and Agustin also filed Motions to Proceed IFP, (ECF Nos. 3, 4). All three Plaintiffs are proceeding pro se and Plaintiff Agustin is currently incarcerated. Although all three Plaintiffs signed the Complaint, Mr. Limpin is the first Plaintiff listed on the Complaint. A plaintiff acting pro se cannot represent others. See Johns v. Cty. of San Diego, 114 F.3d 874, 876 (9th Cir. 1997); Russell v. United States, 308 F.2d 78, 79 (9th Cir.1962) ("[A] litigant appearing in propria persona has no authority to represent anyone other than himself."). Thus, Mr. Limpin cannot represent his co-Plaintiffs. Plaintiffs Mendoza and Agustin are DISMISSED as Plaintiffs from this action. This dismissal is without prejudice so they may file their own individual pro se actions.¹ The Court also DISMISSES AS MOOT Plaintiffs Mendoza and Agustin's IFP Motions, (ECFNos. 3, 4). The Clerk SHALL return these documents to each respective co-Plaintiff along with a copy of this Order.

Similarly, Plaintiffs' Motion for Class Certification, (ECF No. 6), is DENIED. See Rudgayzer v. Yahoo! Inc., No. 5:12-CV-01399 EJD, 2012 WL 5471149, at *11 (N.D. Cal. Nov. 9, 2012) (noting that "[c]ourts have generally concluded that a purported class representative who proceeds pro se violates [Rule 23's] test of adequacy of representation; in other words, a pro se plaintiff cannot represent a class in a class action"). Plaintiff Limpin is limited to asserting claims for violations of his own rights and may not litigate claims on behalf of others. The Court therefore proceeds with its analysis with Mr. Limpin as the only Plaintiff in this matter.

Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

The Court must screen every civil action brought pursuant to 28 U.S.C. § 1915(a) and dismiss any case it finds "frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from relief." 28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners"); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim").

As amended by the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915(e)(2) mandates that the court reviewing an action filed pursuant to the IFP provisions of § 1915 make and rule on its own motion to dismiss before directing the Marshal to effect service pursuant to Federal Rule of Civil Procedure 4(c)(3). See Fed. R. Civ. P. 4(c)(3); Navarette v. Pioneer Med. Ctr., No. 12-cv-0629-WQH (DHB), 2013 WL 139925, at *1 (S.D. Cal. Jan. 9, 2013).

All complaints must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported bymere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). "[D]etermining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense." Id. at 663-64 (citing Twombly, 550 U.S. at 556).

"When there are well-pleaded factual allegations, a court should assume their veracity, and then determine whether they plausibly give rise to an entitlement of relief." Id. at 679. "[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). "While factual allegations are accepted as true, legal conclusions are not." Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June 28, 2012) (citing Iqbal, 556 U.S. at 678). In addition, the court "ha[s] an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt." Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985)). It may not "supply essential elements of claims that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

In the present case, Plaintiff challenges the constitutionality of 8 U.S.C. § 1226(c)(1)(B) and (C). This statute authorizes the Attorney General to take into custody any alien who "is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title" or "is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence [sic] to a term of imprisonment of at least 1 year." 8 U.S.C. § 1226(c)(1)(B) & (C).² Plaintiff states he was seized and detained by the United States Department of Homeland Security Immigration and Customs Enforcement ("ICE") pursuant to thisstatute. ("Compl.," ECF No. 1, at 1.) Plaintiffs alleges section 1226 does not "rise as probable cause to re-seize a person under the Fourth amendment for it is a civil matter, and if it rises as probable cause, it is unlawful for probable cause to seize person [sic], for it discriminates suspect classification [sic] based on alienage." (Id. at 2.) Plaintiff also alleges the statute discriminates under the Equal Protection Clause and violates the Supremacy Clause. (Id. at 3, 5.) Plaintiff also brings a cause of action under the Federal Tort Claims Act. (Id. at 19.)

The Court finds Plaintiff's pleading sufficient to survive the "low threshold" for proceeding past the sua sponte screening required by 28 U.S.C. § 1915(e)(2) and § 1915A(b). See Habtegaber v. Jenifer, 213 F. Supp. 2d 792 (E.D. Mich. 2002) (holding 8 U.S.C. § 1226(c) to be unconstitutional as violating petitioner's right to substantive due process under the Fifth Amendment). But see Denore v. Kim, 538 U.S. 510, 531 (2003) (detaining a deportable criminal alien for a brief period necessary for his removal proceedings, without providing an individualized determination as to whether the alien presented flight risks, did not violate his due process rights); Diop v. ICE/Homeland Sec., 656 F.3d 221, 235 (3d Cir. 2011) (distinguishing Denmore and holding it was unconstitutional to detain petitioner for nearly three years under the authority granted by Congress in § 1226(c)). Plaintiff is cautioned, however, that "the sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [defendant] may choose to bring." Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007)

Accordingly, Plaintiff is entitled to U.S. Marshal service on his behalf. 28 U.S.C. § 1915(d) ("The officers of the court shall issue and serve all process, and perform all duties in [IFP] cases."); Fed. R. Civ. P. 4(c)(3) ("[T]he court may order that service be made by a United States marshal or deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.").

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MOTION FOR PRELIMINARY INUNCTION

Plaintiff requests a preliminary injunction "enjoining the Defendant through its agents acting within its scope of employment from seizing proposed class members in the state of California under 8 U.S.C. § 1226(c)(1)(B) and (C)." ("Injunction MTN," ECF No. 5, at 2.)

Procedurally, a federal district court may issue emergency injunctive relief only if it has...