Davydov v. U.S. Department of Homeland Security

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALEKSANDR DAVYDOV, Case No.: 3:25-cv-0970-RSH-SBC 12 Plaintiff, ORDER: (1) GRANTING MOTION 13 v. TO PROCEED IN FORMA PAUPERIS [ECF No. 2]; AND 14 15 U.S. DEPARTMENT OF HOMELAND (2) DISMISSING COMPLAINT FOR SECURITY, FAILURE TO COMPLY WITH 16 FEDERAL RULE OF CIVIL 17 Defendant. PROCEDURE 8 AND FAILURE TO STATE A CLAIM PURSUANT TO 28 18 U.S.C. §§ 1915(e)(2)(B) 19 20 21 On April 21, 2025, Plaintiff Aleksandr Davydov, an immigration detainee 22 proceeding pro se, filed the instant civil action, along with a motion to proceed in forma 23 pauperis (“IFP”). See ECF Nos. 1–2. Plaintiff also submitted supplemental documents and 24 exhibits. ECF No. 4. In his Complaint, Plaintiff alleges violations of several federal 25 statutes, cases, and regulations, primarily related to his asylum proceedings and ongoing 26 detention. ECF No. 1 at 3. As discussed below, the Court grants Plaintiff’s IFP motion and 27 dismisses the Complaint without prejudice. 28 /// 1 I. MOTION TO PROCEED IFP 2 Generally, a party who institutes a civil action, suit, or proceeding in a district court 3 of the United States, must pay a filing fee of $405. See 28 U.S.C. § 1914(a). The action 4 may proceed despite a plaintiff’s failure to prepay the entire fee only if he is granted leave 5 to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 6 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). If the 7 plaintiff seeking to proceed IFP is a “prisoner,” the Prison Litigation Reform Act (“PLRA”) 8 requires submission of a “certified copy of the trust fund account statement (or institutional 9 equivalent) for . . . the 6-month period immediately preceding the filing of the complaint.” 10 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). 11 Here, Plaintiff is an immigration detainee being held under the authority of the 12 Department of Homeland Security. See ECF No. 1 at 1. Under the PLRA, a “prisoner” is 13 “any person incarcerated or detained in any facility who is accused of, convicted of, 14 sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and 15 conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. § 16 1915(h). A person detained and subject to removal or deportation, however, is not a 17 “prisoner” under § 1915(h). Agyeman v. Immigration & Naturalization Servs., 296 F.3d 18 871, 886 (9th Cir. 2002) ) (“[W]e hold that an alien detained by the INS pending 19 deportation is not a ‘prisoner’ within the meaning of the PLRA.”); Andrews v. King, 398 20 F.3d 1113, 1122 (9th Cir 2005) (“[A] civil detainee is not a ‘prisoner’ within the meaning 21 of the PLRA.”). Because Plaintiff is not a “prisoner,” the filing fee provisions of 28 U.S.C. 22 § 1915(b) are inapplicable to this case and as such, the Court need only review Plaintiff’s 23 affidavit of assets, just as it would for any other non-prisoner litigant seeking IFP status. 24 “Section 1915 typically requires the reviewing court to exercise its sound discretion 25 in determining whether the affiant has satisfied the statute’s requirement of indigency.” 26 Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 27 506 U.S. 194 (1993). “An affidavit in support of an IFP application is sufficient where it 28 alleges that the affiant cannot pay the court costs and still afford the necessities of life.” 1 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. Du Pont 2 de Nemours & Co., 335 U.S. 331, 339 (1948)). Here, Plaintiff attests he is unemployed, 3 does not receive income from any source, does not have a savings or checking account, 4 does not own any assets of value, such as real estate, an automobile, or other similar items, 5 and is in ICE custody. See ECF No. 2. Accordingly, the Court finds Plaintiff has established 6 he is unable to pay the fees or post the securities required to maintain a civil action and 7 therefore GRANTS the IFP motion. See S.D. Cal. Civ. L.R. 3.2(d). 8 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) 9 A. Legal Standard 10 A complaint filed by any person proceeding IFP is subject to sua sponte dismissal if 11 it is “frivolous, malicious, fail[s] to state a claim upon which relief may be granted, or 12 seek[s] monetary relief from a defendant immune from such relief.” 28 U.S.C. § 13 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding 14 that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”); Lopez v. 15 Smith, 203 F.3d 122, 1127 (9th Cir. 2000). 16 “The standard for determining whether Plaintiff has failed to state a claim upon 17 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 18 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 19 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a complaint “contain sufficient 20 factual matter . . . to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 21 556 U.S. 662, 678 (2009) (internal quotation marks omitted). While detailed factual 22 allegations are not required, “[t]hreadbare recitals of the elements of a cause of action, 23 supported by mere conclusory statements, do not suffice” to state a claim. Id. The “mere 24 possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me 25 accusation[s]” fall short of meeting this plausibility standard. Id. 26 B. Plaintiff’s Allegations 27 Plaintiff names the Department of Homeland Security (“DHS”) as the sole 28 defendant. ECF No. 1 at 1. The allegations in the body of the Complaint are sparse. Plaintiff 1 states: “The defendant violated the security protocol protecting the plaintiff’s person data 2 and endangered his life and life of his family. This situation caused the plaintiff irreparable 3 harm, including mental and physical health, safety, social life, trust in the government, 4 significant financial losses, etc.” Id. at 4. Plaintiff seeks money damages for violations of 5 the following: 42 U.S.C. §§ 1983, 1985(2), 5 U.S.C. §§ 701–06 (Administrative Procedures 6 Act), 28 U.S.C. §§ 1346(b), 2671–80 (Federal Tort Claims Act), 5 U.S.C. § 552a (Privacy 7 Act), 8 C.F.R. §§ 208.6, 1208.6, and Bivens v. Six Unknown Fed. Narcotics Agents, 403 8 U.S. 388 (1971). Id. at 3. 9 Plaintiff attaches supplemental documents to his Complaint which contain a 10 chronology of his travels dating back to 2022 and other facts relevant to his asylum 11 proceedings, which the Court will not detail here.1 Plaintiff also attaches what appear to be 12 screenshots of messages and other media, written in Russian, with an apparent English 13 translation provided by Plaintiff. See ECF Nos. 1-2 at 13–20; 1-3 at 3–13. It appears in 14 some of these exchanges that Plaintiff sought the deletion of inaccurate information 15 regarding his asylum proceedings, which was purportedly being posted online. See ECF 16 No. 1-3 at 15. 17 C. Analysis 18 1. Rule 8 19 Federal Rule of Civil Procedure 8(a) requires that a complaint provide “a short and 20 plain statement of the claim showing that the pleader is entitled to relief,” sufficient to 21 “give the defendant fair notice of what the . . . claim is and the grounds upon which it 22 rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Oliver v. Ralphs 23 Grocery Co., 654 F.3d 903, 908 (9th Cir. 2011). A claim is the “aggregate of operative 24 25 26 1 Shortly before this civil action was initiated, Plaintiff filed a petition for habeas 27 corpus pursuant to 28 U.S.C. § 2241, seeking release from immigration custody. Davydov v. Casey, et al., 25cv0845-RSH-AHG (filed Apr. 17, 2024). This Court denied the petition 28 1 facts which give rise to a right enforceable in the courts.” Bautista v. Los Angeles Cnty., 2 216 F.3d 837, 840 (9th Cir. 2000) (citation omitted). A pleading that merely alleges “naked 3 assertion[s] devoid of further factual enhancement” is insufficient to comply with Rule 8. 4 See Iqbal, 556 U.S. at 678. 5 Here, Plaintiff’s allegations fail to satisfy Rule 8. For example, while he lists 6 numerous federal statutes as bases for his suit (ECF No. 1 at 3), he fails to describe or 7 explain clearly how any individual statute applies to him or how they were violated. The 8 same is true of the claims Plaintiff attempts to raise pursuant to federal regulations and 9 Bivens. Plaintiff’s only factual allegation is the conclusory assertion that his personal data 10 was not sufficiently secured, which has endangered his life. ECF No. 1 at 4. While Plaintiff 11 includes several supplemental documents, he fails to tie any of the facts contained therein 12 to the specific legal authorities he lists. Moreover, he provides no facts regarding any 13 specific act or omission on the part of Defendant relevant to any of his legal claims. 14 In sum, the Court finds Plaintiff’s Complaint fails to provide Defendant with fair 15 notice or a “plain statement of the claim showing Plaintiff is entitled to relief.” Fed. R. Civ. 16 P. 8(a); Twombly, 550 U.S. at 555. Therefore, the Court DISMISSES the Complaint for 17 failure to comply with Rule 8. See Long v. JP Morgan Chase Bank, Nat. Ass’n, 848 F. 18 Supp. 2d 1166, 1173 (D. Haw. 2012) (“The court may [] sua sponte dismiss a complaint 19 for failure to comply with Federal Rule of Civil Procedure (‘Rule’) 8.”). 20 2. 42 U.S.C. §§ 1983 & 1985(2) 21 Even if the Complaint were not subject to dismissal under Rule 8, Plaintiff cannot 22 state a plausible claim for relief against DHS under 42 U.S.C. §§ 1983 and 1985(2). These 23 statutes are limited to wrongful acts taken by state––not federal––officers, and as such, 24 they “provide[] . . . no help” to plaintiffs who complain of wrongful acts “taken under the 25 color of federal law.” Lonneker Farms, Inc. v. Klobucher, 804 F.2d 1096, 1097 (9th Cir. 26 1986); see also Jachetta v. United States, 653 F.3d 898, 908 (9th Cir. 2011) (“We find no 27 evidence in either statute that Congress intended to subject federal agencies to § 1983 and 28 § 1985 liability. To the contrary, §§ 1983 and 1985 impose liability upon a “person,” and 1 a federal agency is not a ‘person’ within the meaning of these provisions.”) (collecting 2 cases). Therefore, even if the Complaint were not subject to dismissal under Rule 8, 3 Plaintiff’s claims under 42 U.S.C. §§ 1983 and 1985(2) would be dismissed for failure to 4 state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii); Watison, 668 F.3d at 1112. 5 3. Federal Tort Claims Act 6 In addition, Plaintiff has failed to state a claim under the Federal Tort Claims Act 7 (“FTCA”). Such claims must be brought against the United States. Kennedy v. U.S. Postal 8 Serv., 145 F.3d 1077, 1078 (9th Cir. 1998) (stating “the United States is the only proper 9 party defendant in an FTCA action”). Because Plaintiff has named only DHS as a 10 defendant, he has failed to state an FTCA claim. Moreover, even if Plaintiff had named the 11 proper defendant, the claim would still be subject to dismissal. Before bringing an FTCA 12 claim in federal court, a plaintiff must timely exhaust administrative remedies. See 28 13 U.S.C. § 2675; Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1019 (9th Cir. 14 2007). “The timely filing of an administrative claim is a jurisdictional prerequisite to the 15 bringing of a suit under the FTCA, . . . and, as such, should be affirmatively alleged in the 16 complaint.” Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980). Plaintiff has not 17 alleged he filed an administrative claim with DHS.2 Therefore, even if his Complaint were 18 not subject to dismissal under Rule 8, Plaintiff fails to state a claim under the FTCA. See 19 28 U.S.C. § 1915(e)(2)(B)(ii); Watison, 668 F.3d at 1112. 20 /// 21 22 23 2 Among the attachments to his Complaint, Plaintiff includes a letter from the DHS Office for Civil Rights and Civil Liberties which suggests Plaintiff may have raised 24 concerns about civil rights violations. ECF No. 1-3 at 1. But this is insufficient to allege 25 exhaustion of an FTCA claim because it does not indicate what, if any, claims Plaintiff raised, nor does it suggest Plaintiff requested specific relief. Any “complaint [that is] not 26 an administrative claim within the meaning of 28 U.S.C. § 2675(a)” is not sufficient to 27 meet the jurisdictional requirement of the statute. Brady v. United States, 211 F.3d 499, 503 (9th Cir. 2000). 28 1 4. Bivens 2 Plaintiff also fails to state a claim pursuant to Bivens v. Six Unknown Fed. Narcotics 3 Agents, 403 U.S. 388 (1971). “The purpose of Bivens is to deter individual federal officers 4 from committing constitutional violations.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 5 69–70 (2001). As such, a Bivens claim cannot stand against the United States, or any of its 6 departments, offices, or agencies, such as DHS. See FDIC v. Meyer, 510 U.S. 471 (1994). 7 Moreover, beyond his mere reference to “Bivens,” and the Fourth and Eighth Amendments 8 (ECF No. 1-2 at 1), Plaintiff has provided no factual basis whatsoever for a Bivens claim. 9 Therefore, in addition to failing to comply with Rule 8, Plaintiff has failed to state a Bivens 10 claim.3 See 28 U.S.C. § 1915(e)(2)(B)(ii); Iqbal, 556 U.S. at 678. 11 5. Administrative Procedures Act 12 The same is true for Plaintiff’s attempt to raise claims under the Administrative 13 Procedures Act (“APA”). Generally, the APA permits suits against the United States by 14 “[a] person suffering legal wrong because of agency action, or adversely affected or 15 aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. “The 16 APA’s waiver of sovereign immunity, however, contains several limitations. By its own 17 terms, § 702 does not apply to claims for ‘money damages[.]’” Tucson Airport Auth. v. 18 Gen. Dynamics Corp., 136 F.3d 641, 645 (9th Cir. 1998). Claims properly asserted 19 pursuant to the APA must also satisfy Section 702’s “agency action” requirement and 20 identify a “final agency action” to justify judicial review. See 5 U.S.C. § 704; Immigrant 21 Defs. L. Ctr. v. Noem, __ F.4th __, No. 25-2581, 2025 WL 2080742, at *12 (9th Cir. July 22 23 3 The Supreme Court “recognized an implicit cause of action against federal officials 24 under the Fourth Amendment in Bivens and extended Bivens’s implied cause of action 25 under the Fifth Amendment and Eighth Amendment.” Chambers v. C. Herrera, 78 F.4th 1100, 1104 (9th Cir. 2023) (citations omitted). But the Supreme Court has also stated 26 Bivens is a “disfavored judicial activity,” Ziglar v. Abbasi, 582 U.S. 120, 135 (2017), and 27 has consistently refused to extend it beyond those three specific contexts. See Harper v. Nedd, 71 F.4th 1181, 1187 (9th Cir. 2023) (“Essentially then, future extensions of Bivens 28 1 18, 2025) (“The APA provides for judicial review of final agency actions.”) (citing 5 2 U.S.C. §§ 702, 706). The APA also requires an administrative agency to adjudicate “a 3 matter presented to it” within a “reasonable time.” 5 U.S.C. § 555(b). In situations where 4 an agency fails to do so, a “reviewing court shall compel agency action unlawfully withheld 5 or unreasonably delayed.” 5 U.S.C. § 706(1). However, “[a] court can compel agency 6 action under [5 U.S.C. § 706(1)] only if there is ‘a specific, unequivocal command’ placed 7 on the agency to take a ‘discrete agency action,’ and the agency has failed to take that 8 action.” Vietnam Veterans of Am. v. Cent. Intel. Agency, 811 F.3d 1068, 1075 (9th Cir. 9 2016) (internal quotation marks omitted). 10 Here, Plaintiff fails to point to any “final agency action,” or otherwise identify any 11 legal or factual basis that would permit judicial review under the APA. Therefore, even if 12 the Complaint satisfied Rule 8, Plaintiff’s purported APA claim also requires dismissal for 13 failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii); Watison, 668 F.3d at 1112. 14 6. Privacy Act 15 Plaintiff also cites to 5 U.S.C. § 522a, also known as the Privacy Act, as a basis for 16 relief. The Privacy Act provides agencies with “detailed instructions for managing their 17 records and provides for various sorts of civil relief to individuals aggrieved by failures on 18 the Government’s part to comply with the requirements” of the Act. Doe v. Chao, 540 U.S. 19 614, 618 (2004). There are two categories of Privacy Act claims: (1) access and (2) 20 accuracy. Rouse v. U.S. Dep’t of State, 567 F.3d 408, 413–14 (9th Cir. 2009). 21 As for access, agencies must provide an individual “access to his record” “upon 22 request.” See 5 U.S.C. § 552a(d)(1). An access claim under the Privacy Act may be 23 enforced via civil action when an agency “refuses to comply with an individual request” 24 for records. Rouse, 567 F.3d at 414 (citing 5 U.S.C. § 552a(g)(1)(B)). Plaintiff makes no 25 allegation he requested and was improperly denied access to records under the Privacy Act 26 and therefore has not stated a claim based on access. 27 To state a claim under the accuracy provisions of the Privacy Act, an individual must 28 show “1) that the government failed to fulfill its record keeping obligation, 2) which failure 1 proximately caused the adverse determination, 3) that the agency failed intentionally or 2 willfully to maintain the records, and 4) that the plaintiff suffered actual damages.” Rouse, 3 567 F.3d at 417 (citing Rose v. United States, 905 F.2d 1257, 1259 (9th Cir. 1990)). 4 Plaintiff appears to allege inaccurate information about his asylum proceedings was 5 disclosed (ECF No. 1-2 at 7), but he fails to allege facts suggesting DHS willfully failed to 6 maintain his records or that he received an adverse determination as a result. Plaintiff’s 7 allegation is conclusory and speculative, and therefore he fails to state a claim under the 8 Privacy Act. See 28 U.S.C. § 1915(e)(2)(B)(ii); Iqbal, 556 U.S. at 678. 9 7. Code of Federal Regulations 10 Finally, Plaintiff references 8 C.F.R. §§ 208.6 and 1208.6 but fails to elaborate on 11 how either regulation provides the basis for a claim. Both regulations state that 12 “[i]nformation contained in or pertaining to any application for refugee asylum [or] 13 withholding of removal. . . shall not be disclosed without the written consent of the 14 applicant.” 8 C.F.R. §§ 208.6(a), 1208.6(a). However, they do not forbid such records from 15 being disclosed to federal, state, and local courts in legal actions “[a]rising from the 16 proceedings of which the asylum application . . . is a part.” 8 C.F.R. §§ 208.6(c)(2)(ii), 17 1208.6(c)(2(ii). Plaintiff appears to claim that information about his request for asylum has 18 appeared on Russian social media, but he merely speculates that the information was 19 obtained as a result of Defendant’s improper action (or inaction). In short, Plaintiff’s claim 20 is wholly conclusory.4 Therefore, Rule 8 dismissal notwithstanding, to the extent Plaintiff 21 22 23 4 Moreover, while a breach of these regulations may give rise to “a new and independent claim for asylum,” Owino v. Holder, 771 F.3d 527, 535 (9th Cir. 2014), this 24 Court is aware of no authority supporting a private cause of action for such a breach. Cf. 25 Lin v. United States Dept. of Justice, 459 F.3d 255, 267–68 (2nd Cir. 2006) (holding that the violation of 8 C.F.R. § 208.6 may create a new risk of persecution which may, 26 independent of the petitioner’s original claim, render him eligible for asylum and/or 27 withholding of removal); Averianova v. Mukasey, 509 F.3d 890, 898–99 (8th Cir. 2007) (stating that while the “regulation [§208.6] itself provides no remedy,” if a disclosure 28 1 seeks to raise a ground for relief under 8 C.F.R. §§ 208.6 & 1208.6, he has failed to state a 2 claim. See 28 U.S.C. § 1915(e)(2)(B)(ii); Iqbal, 556 U.S. at 678. 3 D. Leave to Amend 4 Given Plaintiff’s pro se status, the GRANTS him leave to amend his complaint. See 5 Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not 6 dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that the 7 deficiencies of the complaint could not be cured by amendment.’”) (quoting Akhtar v. 8 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). 9 III. CONCLUSION 10 Accordingly, the Court: 11 1. GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2). 12 2. DISMISSES the Complaint without prejudice for failure to comply with 13 Federal Rule of Civil Procedure 8 and failure to state a claim pursuant to 28 U.S.C. § 14 1915(e)(2). 15 3. GRANTS Plaintiff sixty (60) days leave from the date of this Order in which 16 to file a First Amended Complaint which cures the deficiencies of pleading noted in this 17 Order. Plaintiff’s Amended Complaint must be complete by itself without reference to his 18 original Complaint. See Civ. L.R 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., 19 Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the 20 original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims 21 dismissed with leave to amend which are not re-alleged in an amended pleading may be 22 “considered waived if not repled.”). 23 If Plaintiff fails to timely file a First Amended Complaint, the Court will enter a final 24 Order dismissing this civil action based both on failure to state a claim upon which relief 25 26 27 “gives rise to a reasonable inference that an applicant has applied for asylum, an applicant may have a new and independent basis for an asylum claim”). 28 1 || can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(1) and § 1915A(b)(1), and failure to 2 || prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 427 3 || F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity 4 ||to fix his complaint, a district court may convert the dismissal of the complaint into 5 || dismissal of the entire action.”). 6 IT IS SO ORDERED. 7 Dated: August 15, 2025 □ 8 Febut ¢ Howe 9 Hon. Robert S. Huie United States District Judge 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11