Opinion
Case No. CV 16-6655 DOC (SS)
10-20-2016
NICOLE ALBRECHT WHEELER, PETRA ALBRECHT, RICHARD WHEELER, Plaintiffs, v. UNKNOWN NAMED AGENTS OF ICE, et al., Defendants.
MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
I.
INTRODUCTION
On September 2, 2016, Plaintiffs Nicole Albrecht Wheeler ("Wheeler"), Petra Albrecht ("Albrecht"), and Richard Wheeler (collectively "Plaintiffs") filed a civil rights complaint (the "Complaint") pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671 and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) against various defendants. (Complaint at 1-3, 22-28). For the reasons stated below, the Complaint is dismissed with leave to amend.
Magistrate judges may dismiss a complaint with leave to amend without approval of the district judge. See McKeever v. Block, 932 F.2d 795, 795 (9th Cir. 1991).
II.
ALLEGATIONS OF THE COMPLAINT
Plaintiffs named the following seventeen employees of United States Immigration and Customs Enforcement ("ICE"), an agency under the Department of Homeland Security ("DHS"), as defendants in their individual capacities: (1) Field Office Director David Jennings ("Jennings"); (2) Assistant Field Office Director Arturo Trevino ("Trevino"); (3) Supervisor Andre Quinones ("Quinones"); (4)Deportation Officer Nelly McKenna ("McKenna"); (5) Chief Counsel Sandra Anderson ("Anderson"); (6) Director Christina Holland ("Holland"); (7) Supervisor Jaime Manriquez (Manriquez"); (8) Deputy Patricia Holliday ("Holliday"); (9) Otay Facility Unit Manager Billie Handsbur ("Handsbur"); and (10) 8 Unknown Federal ICE Agents ("ICE Agents") (collectively, "Defendants"). (Compl. at 1-3).
Plaintiffs allege Fourth Amendment claims for a warrantless search and excessive use of force; a Fifth Amendment due process claim for denial of access to counsel; Eighth Amendment claims for denial of medical treatment and substandard conditions of confinement; a First Amendment retaliation claim; and a loss of consortium claim. (Compl. at 22-28).
Plaintiffs allege that on September 8, 2014, at 7:30 a.m., ICE Agents, in coordination with the Los Angeles Police Department ("LAPD") and the Department of Child Protective Services ("DCPS"), conducted a warrantless sweep of Plaintiffs' home. (Compl. at 5). An administrative warrant was issued eight hours after the sweep at 3:31 p.m. (Compl. at 6-7). Upon entering Plaintiffs' home, ICE Agents allegedly used excessive force, drawing their guns and pointing them at Plaintiffs. Id. After the raid, ICE Agents arrested Plaintiffs Petra Albrecht ("Albrecht") and Nicole Albrecht Wheeler ("Wheeler") and allegedly placed them in a van "for several hours, without air, water," or access to a bathroom. (Compl. at 6). Plaintiffs Albrecht and Wheeler admit that they had "overstayed their visas" when they were arrested. (Compl. at 7). Plaintiffs allege that they were incarcerated for six and a half months. Id.
Plaintiffs Albrecht and Wheeler allege that they were malnourished and deprived of medical treatment during their incarceration. (Compl. at 13-16). Plaintiffs' family and attorneys allegedly made "written and verbal pleas . . . for proper medical care," which were "ignored" by Defendants Handsbur and Trevino. (Compl. at 17). Plaintiffs also allege that while the Otay Detention Facility was operated by "CCA," a contracted private entity, DHS had extensive "day-to-day" and "in-house" oversight of the facility, including its medical treatment center. Id.
Denial of medical treatment allegedly caused Plaintiff Wheeler to suffer from "an early miscarriage, frequent chest pain, significant weight loss, a shoulder injury, [and a] knee injury" that were "never attended to." (Compl. at 15). Plaintiff Albrecht was also allegedly denied medical care. For example, Plaintiff Albrecht went to the emergency room three times for "serious heart palpitations, severe back pain and other ailments only after family members or attorney's [sic] hounded the facilities repeatedly." (Compl. at 16). On September 10, 2015, at the Adelanto Detention Facility ("Adelanto"), Plaintiff Albrecht allegedly became unconscious, "suffering what she believed to be a heart attack." Id. Medical staff at Adelanto allegedly checked Plaintiff Albrecht's blood pressure but refused to send her to the emergency room. Id. Plaintiff Albrecht suffered numerous physical injuries because of medical neglect. (See Compl. 16-17).
Defendants McKenna and Holliday allegedly retaliated against Plaintiffs Albrecht and Wheeler because Plaintiffs refused to sign certain documents relating to their deportation. (Compl. at 17). Defendants McKenna and Holiday allegedly transferred Plaintiff Albrecht to a high-security detention facility in San Diego County, and they placed Plaintiff Wheeler in a high-level security facility in Los Angeles because both Plaintiffs refused to sign the documents. (Compl. at 12).
Plaintiff Wheeler was also placed in solitary confinement after filing complaints regarding the poor conditions at the Otay Detention Facility. Id. Plaintiff Wheeler was housed in solitary confinement for fourteen days prior to her asylum hearing and twenty-four hours before her bond hearing, which allegedly precluded her from preparing for the hearings with her attorney. (Compl. at 14). Plaintiff Wheeler contends that she received unfavorable rulings in her asylum and bond hearings because Defendants denied her access to her attorney. (Compl. 13-15). Plaintiff Wheeler was then forced to sign a "behavioral contract" before she could be released from solitary confinement. (Compl. at 14).
On January 12, 2016, Plaintiffs Albrecht and Wheeler were allegedly subject to excessive force and sexual harassment by Defendants Patterson, "Roger," and five ICE Agents. Defendants allegedly hurt Plaintiff Wheeler's fingers while throwing her on a bench, "touching her breast, hurting her knee, throwing her against a wall," and pulling out a "wad" of Plaintiff Wheeler's hair. (Compl. at 19). Defendants then allegedly refused Plaintiff Wheeler's requests for medical attention. Id.
"Roger" was not identified in the "Parties" section of the Complaint.
Plaintiffs seek compensatory, punitive, and monetary damages. (Compl. at 28). Plaintiffs also seek injunctive relief to "administratively close [Plaintiffs'] immigration cases" and grant "adjustment of status to [P]laintiffs Nicole Albrecht Wheeler, Petra Albrecht, and minor child, J.A." (Compl. at 29).
II.
STANDARD FOR DISMISSAL OF PRO SE COMPLAINT
Under Federal Rule of Civil Procedure 12(b)(6), a trial court may dismiss a claim sua sponte "where the claimant cannot possibly win relief." Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987); see also Baker v. Director, U.S. Parole Comm'n, 916 F.2d 725, 726 (D.C. Cir. 1990) (per curiam) (adopting the Ninth Circuit's position in Omar and noting that such a sua sponte dismissal "is practical and fully consistent with plaintiff's rights and the efficient use of judicial resources"). When a plaintiff appears pro se in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dep't., 839 F.2d 621, 623 (9th Cir. 1988). In giving liberal interpretation to a pro se complaint, the court may not, however, supply essential elements of a claim that were not initially pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). A court must give a pro se litigant leave to amend the complaint unless it is "absolutely clear that the deficiencies of the complaint could not be cured by amendment." Karim-Panahi, 839 F.2d at 623 (citation and internal quotation omitted).
The Court finds that the instant Complaint fails to state cognizable claims for relief and must be dismissed. However, leave to amend is granted.
III.
DISCUSSION
A. This Court Lacks Jurisdiction Over Plaintiffs' Denial Of Access To Counsel Claim Under 8 U.S.C. 1252(b)(9)
Section 1252(b) sets forth requirements for judicial review of an order of removal. Section 1252(b)(9) states that:
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction . . . to review such an order or such questions of law and fact.8 U.S.C. 1252(b)(9). The Supreme Court has described section 1252(b)(9) as a "'zipper clause.' Its purpose is to consolidate 'judicial review' of immigration proceedings into one action in the court of appeals." INS v. St. Cyr, 533 U.S. 289, 313 (2001) (quoting Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 483 (1999)). Section 1252(b)(9) therefore operates to bar claims common to removal proceedings where they directly "aris[e] from an action taken or proceeding brought to remove an alien from the United States." J.E. F.M. v. Lynch, No. 15-35738, 2016 WL 5030344, at *5 (9th Cir. Sept. 20, 2016) ("[R]ight-to-counsel claims must be raised through the PFR process because they 'arise from' removal proceedings. The counsel claims are not independent or ancillary to the removal proceedings.") (quoting 8 U.S.C. § 1259(b)(9))).
Here, Plaintiff Wheeler's "right-to-counsel" was allegedly violated when she was housed in solitary confinement, without access to her attorney, fourteen days before her asylum hearing and twenty-four hours prior to her bond hearing. (Compl. at 15 ). Plaintiffs also seek injunctive relief to "close [Plaintiffs'] immigration cases and grant adjustment to [their immigration] status." (Compl. at 29). These claims arise directly from Plaintiffs' removal proceedings and are therefore barred from district court review.
Plaintiffs "unquestionably have the right, under the INA, to raise these claims before the immigration judge, before the Board of Immigration Appeals (BIA), and ultimately before the court of appeals," Aguilar v. U.S. Immigration & Customs Enf't Div. of Dep't of Homeland Sec., 510 F.3d 1, 14 (1st Cir. 2007), but Plaintiffs cannot raise these claims in the current proceeding. Accordingly, this Court lacks subject matter jurisdiction to consider Plaintiffs' Fifth Amendment due process claim for denial of access to counsel. B. Plaintiffs Fail To Allege Personal Participation By Defendants In The Alleged Civil Rights Violations
To demonstrate a civil rights violation against immigration officials, a plaintiff must show either direct, personal participation or some sufficient causal connection between the officials' conduct and the alleged constitutional violation. See Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011) (as applied to a section 1983 claim); Kwai Fun Wong v. United States, 373 F.3d 952, 966-67 (9th Cir. 2004).
Plaintiff's allegations regarding the civil rights violations are conclusory and vague. Plaintiff must include specific facts showing the personal participation of individual defendants in the alleged violations. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (holding that a complaint must include specific facts for a plausible claim). Similarly, it is not enough to allege that ICE "[A]gents denied medical attention" or that the "facility and ICE" refused to take Plaintiff Albrecht to the emergency room. (Compl. at 16). Plaintiffs must identify how individual defendants personally participated in the wrongful conduct. Accordingly, Plaintiff's claims against Defendants must be dismissed. C. The Complaint Fails To Satisfy Federal Rule Of Civil Procedure 8
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)). Violations of this rule warrant dismissal. Rule 8 may be violated when a pleading "says too little," Knapp v. Hogan, 738 F.3d 1106, 1108 (9th Cir. 2013)(citing Ashcroft, 556 U.S. at 678), and "when a pleading says too much." Knapp, 738 F.3d at 1108 (citing Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (a complaint violates Rule 8 if a defendant would have difficulty understanding and responding to the complaint)); see also McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir. 1996) ("Prolix, confusing complaints . . . impose unfair burdens on litigants and judges.").
Here, the Complaint violates Rule 8 because it contains repetitious, conclusory, and confusing allegations. Moreover, many of the facts do not relate to Plaintiffs' claims. Plaintiffs discuss in great detail the circumstances surrounding the deportation of J.A. However, these facts are completely irrelevant to the current action. (Compl. at 7-11). In addition, because Plaintiffs are not required to provide evidence supporting their claims at this stage of the litigation, the numerous exhibits attached to the Complaint are unnecessary.
The Complaint fails to provide Defendants with fair notice of the claims in a clear and concise statement. See Twombly, 550 U.S. at 555. Accordingly, the Complaint is dismissed with leave to amend. Should Plaintiffs choose to file an Amended Complaint, they are advised to clearly identify the nature of the legal claims they are bringing, the specific facts giving rise to each claim against each individual Defendant, and the relief sought. D. The Heck Doctrine May Bar Some Or All Of Plaintiffs' Claims
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that a civil rights complaint must be dismissed if a judgment in favor of a plaintiff would undermine the validity of a plaintiff's conviction or sentence, unless a plaintiff can demonstrate that the conviction or sentence has already been invalidated. Id. at 496-87. The Heck Court explained that
[I]n order to recover damages for an allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus. A claim for a sentence that has not been so invalidated is not cognizable under § 1983.Id. at 486-87. The Heck doctrine applies to Bivens actions. See United States v. Crowell, 374 F.3d 790, 795 (9th Cir. 2004); Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (applying Heck to Bivens action).
Plaintiffs allege that ICE Agents, in coordination with the LAPD and DCPS, entered plaintiffs' home without a warrant to conduct a search of the premises, arrest Plaintiffs Nicole and Petra, and remove J.A. from the home. (Compl. at 6-7). To the extent the alleged warrantless search or related arrests of Plaintiffs led to any criminal proceedings against Plaintiffs, it is possible that the Heck doctrine would bar civil rights claims that, if successful, would invalidate Plaintiffs' criminal convictions. In any amended complaint, Plaintiffs should consider whether the alleged claims are barred by the Heck doctrine. E. Discovery of "Doe" Defendants
Plaintiffs have included "Doe" defendants in their complaint. Plaintiffs are responsible for obtaining the full name of each defendant named in any amended complaint. Failure to do so will may result in dismissal of claims against the "Doe" defendants.
Plaintiffs are entitled to conduct discovery in order to obtain this information. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) ("[W]here the identity of the alleged defendant is not known prior to the filing of a complaint, the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.") (quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). Accordingly, if Plaintiffs do not know the full names of the Doe defendants, they must promptly pursue discovery by immediately serving written interrogatories on the appropriate named defendants (or depositions upon written questions on non-parties) and request the names or identities of the Doe defendants. Plaintiffs may then discover and substitute the full names of those defendants who are inadequately identified in the current Complaint.
IV.
CONCLUSION
For the reasons stated above, the Complaint is dismissed with leave to amend. If Plaintiffs still wish to pursue this action, they are granted thirty (30) days from the date of this Memorandum and Order within which to file a First Amended Complaint. In any amended complaint, Plaintiffs shall cure the defects described above. Plaintiffs shall not include new defendants or new allegations that are not reasonably related to the claims asserted in the original complaint. The First Amended Complaint, if any, shall be complete in itself and shall bear both the designation "First Amended Complaint" and the case number assigned to this action. It shall not refer in any manner to any previously filed complaint in this matter.
In any amended complaint, Plaintiffs should confine their allegations to those operative facts supporting each of their claims. Plaintiffs are advised that pursuant to Federal Rule of Civil Procedure 8(a), all that is required is a "short and plain statement of the claim showing that the pleader is entitled to relief." Plaintiffs are strongly encouraged to utilize the standard civil rights complaint form when filing any amended complaint, a copy of which is attached. In any amended complaint, Plaintiffs should identify the nature of each separate legal claim and make clear what specific factual allegations support each of their separate claims. Plaintiffs are strongly encouraged to keep their statements concise and to omit irrelevant details. It is not necessary for Plaintiffs to cite case law or include legal arguments. Plaintiffs are also advised to omit any claims for which they lack a sufficient factual basis.
Plaintiffs are explicitly cautioned that failure to timely file a First Amended Complaint, or failure to correct the deficiencies described above, will result in a recommendation that this action be dismissed with prejudice for failure to prosecute and obey Court orders pursuant to Federal Rule of Civil Procedure 41(b). Plaintiffs are further advised that if they no longer wish to pursue this action , they may voluntarily dismiss it by filing a Notice of Dismissal in accordance with Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Plaintiff's convenience. DATED: October 20, 2016
/S/_________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE