Quiroz v. United States, 1:21-cv-00364-AWI-SAB (PC)
| Decision Date | 25 August 2021 |
| Docket Number | 1:21-cv-00364-AWI-SAB (PC) |
| Parties | CRISTOBAL RAMOS QUIROZ, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Eastern District of California |
FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF (ECF NOS. 16, 17)
Plaintiff Cristobal Ramos Quiroz is proceeding pro se and in forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of Fed Bureau of Narcotics, 403 U.S. 388 (1971).
Currently before the Court is Plaintiff's second amended complaint filed on July 19, 2021. (ECF No. 16.) On August 17, 2021 Plaintiff submitted another complaint which the Court construed and filed as a supplement to the second amended complaint. (ECF No. 17.)
A complaint filed by any person proceeding in forma pauperis is subject to sua sponte dismissal, if it “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners); Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) (affirming sua sponte dismissal for failure to state a claim).
The Court exercises its discretion to screen the plaintiff's complaint in this action to determine if it “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). A complaint 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 by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In reviewing the pro se complaint, the Court is to liberally construe the pleadings and accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] complaint [that] pleads facts that are ‘merely consistent with' a defendant's liability...‘stops short of the line between possibility and plausibility of entitlement to relief.' ” Id. (quoting Twombly, 550 U.S. at 557). Therefore, the complaint must contain sufficient factual content for the court to draw the reasonable conclusion that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678.
The Court accepts Plaintiff's allegations in the complaint as true only for the purpose of the sua sponte screening requirement under 28 U.S.C. § 1915.
Plaintiff seeks relief for negligence, negligent infliction of emotional distress, malicious prosecution, and violations of the Fourth, Fifth, Sixth and Fourteenth Amendments arising out of the investigation which lead to defective underlying deportation proceedings and unlawful deportation to Mexico for eight years.
As stated in the Court's July 14, 2021 screening order, on July 20, 2020, Plaintiff filed a petition to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255, in case number 1:02-cr-05179-NONE, wherein Plaintiff claimed that 2002 conviction for illegal reentry into the United States in violation of 8 U.S.C. 1326 was predicated on an unlawful removal. (Case No. 1:02-cr-05179-NONE, Doc. No. 27.) The Court construed Plaintiff's petition as a request for a writ of error coram nobis, granted the writ, and vacated the conviction and sentence. In granting the petition, the Court stated, pertinent part:
The facts and circumstances of petitioner's claim satisfy each of the four factors to be considered when granting or denying coram nobis relief. First, no other avenue for relief is available to petition at this point, and second, it is clear that petitioner has a quite valid reasons for not attacking his illegal reentry conviction sooner. … Third, adverse consequences from a conviction are presumed. … Here, the consequences from the criminal conviction in this case have reverberated in petitioner's life more than once and could theoretically do so again in the future. Those consequences have often been inextricably linked with his initial removal in 1999 and are difficult to parse separately. For example, petitioner was removed from the United States for a second time after serving the sentence imposed in this case. Petitioner likewise has had contacts with the state criminal court system since suffering the conviction in this action, though it is unclear whether those contacts have resulted in any new criminal convictions. Regardless, the risk of an increased penalty, whether that penalty has manifested or not, is exactly the type of adverse consequence contemplated by the Ninth Circuit in Chacon and Hirabayashi. … Fourth, the fundamental nature of the error in this case is clear. … Petitioner, a lawful permanent resident prior to his removal, was not advised of the availability of relief from removal under certain provisions of immigration law during his 1998 removal proceedings. But for that predicate error from which his criminal case flowed, petitioner may not have been charged with illegal entry, convicted, and incarcerated for a significant period of time. Petitioner has now been granted relief from his 1999 removal order based on error, and for that reason, the continuation and reification of that error that occurred in these criminal proceedings cannot stand. (Id., Doc. No. 35 at 4-7.) (citations and footnotes omitted).
Bivens v. Six Unknown Agents, created a remedy for violations of constitutional rights committed by federal officers acting in their individual capacities. Consejo de Desarrollo Economico de Mexicall, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir.2007) (citing Bivens, 403 U.S. 388)). Thus, to state a Bivens claims, a plaintiff must allege that persons acting under the color of federal law violated his constitutional rights. Martin v. Sias, 88 F.3d 774, 775 (9th Cir.1996) (citing Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir.1991)).
An action under Bivens is therefore identical to one brought under 42 U.S.C. § 1983 except for the replacement of a state actor under § 1983 by a federal actor under Bivens. Id.
“In a suit against the United States, there cannot be a right to money damages without waiver of sovereign immunity.” United States v. Testan, 424 U.S. 392, 400 (1976). The doctrine of sovereign immunity bars Bivens actions against the United States. Arnsberg v. United States, 757 F.2d 971, 980 (9th Cir.1984). The Court therefore lacks subject matter jurisdiction over Plaintiffs' Bivens claims against the government. Moreover, “[i]t has long been the rule that the bar of sovereign immunity cannot be avoided by naming officers and employees of the United States as defendants.” Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir.1985) (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688 (1949)). Claims against federal officials in their official capacities are essentially claims against the United States. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (citing Monell v. N.Y.C. Dep't of Soc. Servs., 436 U.S. 658, 690 n. 55 (1978)). Thus, a Bivens action “can be maintained against a defendant in his or her individual action only, and not in his or her official capacity.” Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir.1996) (quoting Daly-Murphy, 837 F.2d 348 (9th Cir.1987)).
The Supreme Court has recently emphasized that “the Court has made clear that expanding the Bivens remedy is now a ‘disfavored' judicial activity, ” which is “in accord with the Court's observation that it has ‘consistently refused to extend Bivens to any new context or new category of defendants.' ” Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017) (). Abbasi sets forth a two-part test to determine whether a Bivens claim may proceed. 137 S.Ct. at 1859-60. A district court must first consider whether the claim presents a new context from previously established Bivens remedies, and if so, it must then apply a “special factors” analysis to determine whether “special factors counsel hesitation” in expanding Bivens in the absence of affirmative action by Congress. Id. at 1857-60.
“If [a] case is different in a meaningful way from previous Bivens cases decided by [the Supreme Court], the context is new.” Id. at 1859. The Abbasi Court provided several non-exhaustive examples of differences meaningful enough to make a given context a new one: “the rank of the officers involved the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be...
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