Opinion
1:21-cv-01631-JLT-SKO
03-07-2022
ANTONIO ZAVALA, Plaintiff, v. SALVADOR REIGOSA, et al., Defendants.
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED FOR FAILURE TO STATE A CLAIM
(DOC. 1)
SHEILA K. OBERTO, UNITED STATES MAGISTRATE JUDGE
TWENTY-ONE-DAY DEADLINE
Plaintiff Antonio Zavala is proceeding pro se and in forma pauperis in this action. Plaintiff filed his complaint on November 8, 2021. (Doc. 1). On February 11, 2022, the undersigned screened the complaint, concluding that Plaintiff stated no cognizable claims but providing Plaintiff with options to proceed. (Doc. 7.) Plaintiff filed a response to the screening order on February 28, 2022, notifying the Court that he wished to stand on his complaint. (Doc. 8.)
Plaintiff's response is also directed to his inability to pay the filing fee in this case and for counsel. (See Doc. 8 at 1- 2.) The Court, however, previously found Plaintiff entitled to proceed in forma pauperis (see Doc. 4), and the screening order did not challenge Plaintiff's allegations of poverty; rather, it found Plaintiff failed to state a claim upon which relief may be granted. (See Doc. 7 at 3-8.) As for the denial of Plaintiff's motion for appointment of counsel (Doc. 3), such request was denied without prejudice due to the Court's inability to assess the complexity of the case in the absence of any cognizable claims. (See Doc. 7 at 9.) To the extent Plaintiff is seeking reconsideration of the denial of his motion, such request is DENIED, as the undersigned reiterates her finding that Plaintiff's complaint fails to state a claim upon which relief may be granted.
For the reasons set forth below, the undersigned recommends that this action be dismissed for failure to state a claim.
Plaintiff has twenty-one days from the date of service of these findings and recommendations to file his objections.
I. SCREENING REQUIREMENT
In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen each case and shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue, or that the action or appeal is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). See also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis proceedings which seek monetary relief from immune defendants); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma pauperis complaint under 28 U.S.C. § 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) (affirming sua sponte dismissal for failure to state a claim). If the Court determines that a complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).
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)). . A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Plaintiff must allege a minimum factual and legal basis for each claim that is sufficient to give each defendant fair notice of what the plaintiff's claims are and the grounds upon which they rest. See, e.g., Brazil v. U.S. Dep't of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).
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).
II. SUMMARY OF PLAINTIFF'S COMPLAINT
Plaintiff drafted his complaint using the general complaint form provided by this Court. The complaint lists three defendants: (1) Salvador Reigosa; (2) Madga Martinez; and (3) Orlando Lujan. (Doc. 1 at 2-3.) Plaintiff states that subject matter jurisdiction is based on federal question under 28 U.S.C. § 1331. (Id. at 3.) In the section in which he is asked to indicate which of his federal constitutional or federal statutory rights have been violated, he lists the following: 18 U.S.C. § 242, 50 U.S.C. § 3033(k)(5), and “Executive Order: 13636 (5 U.S.C. § 2302(A)(2)(A).” (Id. at 4.) The statement of claim section of the complaint is blank. (Id. at 5.) Regarding the relief sought, Plaintiff states that he “[d]o[es] not have precise amount or account of damages, a protective order or new life might be needed as the damages in a high profile target in CI program are quite high (A new life).” (Id. at 6.)
The Civil Cover Sheet lists the nature of suit as “other civil rights.” (Doc. 1-1.) The cause of action is described as “Civil Rights.” (Id.)
III. ANALYSIS OF PLAINTIFF'S COMPLAINT
Rule 8 states that 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). Here, Plaintiff's complaint violates Rule 8 because it does not contain a short and plain statement of the claim demonstrating that he is entitled to relief.
Although the Federal Rules use a flexible pleading policy, Plaintiff is required to give fair notice to the defendants of the basis of the claim and must allege facts that support the elements of the claim plainly and succinctly. A complaint must contain sufficient factual allegations to give the defendant fair notice of the claim and the grounds upon which it rests. Twombly, 550 U.S. at 555.
Here, there are no factual allegations in the complaint that identify the basis of the claim and Plaintiff's references to federal statutes, without more, are not sufficient. To the extent Plaintiff intends to bring claims under the statutes referenced, such claims are also not cognizable. “Generally, criminal statutes do not confer private rights of action . . . .” Bailey v. Clarke, 2012 WL 6720628, at *2 (S.D. Cal. Dec. 21, 2012) (citing Stupy v. U.S. Postal Serv., 951 F.2d 1079, 1081 (9th Cir. 1991)). Title 18 U.S.C. section 242 (see Doc. 1 at 4) is a criminal statute, and thus provides no basis for civil liability. See Allen v. Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006) (18 U.S.C. § 242 provides no basis for civil liability); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (criminal provisions under Title 18 of the U.S. Code “provide no basis for civil liability”) (citations omitted). Title 50 U.S.C. section 3033(k)(5) (see Doc. 1 at 4) addresses the Inspector General of the Intelligence Community, and allows “[a]n employee of an element of the intelligence community, an employee assigned or detailed to an element of the intelligence community, or an employee of a contractor to the intelligence community who intends to report to Congress a complaint or information with respect to an urgent concern may report such complaint to the Inspector General.” 50 U.S.C. § 3033(k)(5)(A). Plaintiff has alleged no facts that would support such a claim, and even assuming he could, he is seeking relief from the Court, not filing a report with the Inspector General. See, e.g., Edwards v. Pruitt, No. 7:20-cv-01400-LSC, 2020 WL 6712272, at *2 (N.D. Ala. Nov. 16, 2020) (granting motion to dismiss claim).
Plaintiff further cites 5 U.S.C. § 2302(b)(9)(D). (See Doc. 1 at 4.) Title 5 of the U.S. Code deals with Government Organization and Employees. Section 2302(a)(2)(A) defines “personnel action” for purposes of the section. 5 U.S.C. § 2302(a)(2)(A). Because Plaintiff does not explain how this definition or statute applies here, his claim is insufficiently stated. See Iqbal, 566 U.S. at 679. It is Plaintiff's duty to articulate his claim-neither the Court nor the defendants are required to try to decipher what claims Plaintiff is asserting in the action.
A complaint is also required to 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. Here, the statement of the claim is blank. It is therefore impossible to determine what Plaintiff is alleging has occurred, or how the defendants are alleged to be responsible.
Lastly, Rule 8 requires that the complaint must state a demand for the relief sought. Fed.R.Civ.P. 8(a)(3). The complaint does not list any relief sought, only that a “protective order” or “a new life” “might be needed.”
IV. CONCLUSION AND RECOMMENDATIONS
The undersigned has screened Plaintiff's complaint and finds that it fails to state any cognizable claims. Plaintiff was provided with applicable legal standards, an explanation why his complaint failed to state a claim, and leave to file an amended complaint, but Plaintiff chose to stand on his complaint.
Accordingly, based on the foregoing, it is HEREBY RECOMMENDED that:
1. This action be dismissed for failure to state a claim; and
2. The Clerk of Court be directed to close the case.
These findings and recommendations are submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 304. Within twenty-one (21) days of service of these recommendations, Plaintiff may file written objections to these findings and recommendations with the Court. Such a document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” The district judge will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the district judge's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).
IT IS SO ORDERED.