Ackers v. Mayorkas

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GREGORY ACKERS, an individual, Case No.: 21-CV-1010 JLS (DEB)

12 Plaintiff, ORDER: (1) GRANTING MOTION 13 v. TO PROCEED IN FORMA PAUPERIS; AND (2) DISMISSING 14 ALEJANDRO MAYORKAS; CENTER COMPLAINT FOR DISEASE CONTROL; and 15 GOVERNOR GAVIN NEWSOM, (ECF No. 2) 16 Defendants. 17 18 Presently before the Court is Plaintiff Gregory Ackers’s Motion to Proceed In Forma 19 Pauperis (“IFP”) (“Mot.,” ECF No. 2). Plaintiff, proceeding pro se, filed a Complaint 20 alleging that the Center for Disease Control and Prevention’s (“CDC”) policy of allowing 21 unaccompanied migrant children into California violates the California Administrative 22 Procedure Act (“APA”). See ECF No. 1 (“Compl.”) at 1. Plaintiff requests that the Court 23 declare the policy to be unlawful and issue an injunction preventing the implementation of 24 the policy. See id. at 6. The Court addresses the Motion and the sufficiency of the 25 Complaint below. 26 I. Motion to Proceed IFP 27 All parties instituting any civil action, suit, or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of 1 $402. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if the party is granted leave to proceed in forma pauperis pursuant 3 to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A 4 federal court may authorize the commencement of an action without the prepayment of 5 fees if the party submits an affidavit, including a statement of assets, showing that the party 6 is unable to pay the required filing fee. 28 U.S.C. § 1915(a). 7 Plaintiff’s motion to proceed IFP indicates that his average monthly income over the 8 past year was $943, and that he has $100 in his bank account. Mot. at 1–2. Plaintiff’s 9 monthly expenses total $943. Id. Based on these facts, the Court concludes that Plaintiff 10 is unable to pay the requisite fees and costs. Accordingly, the Court GRANTS Plaintiff’s 11 Motion to Proceed IFP. 12 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) 13 Notwithstanding IFP status, the Court must screen every civil action brought 14 pursuant to 28 U.S.C. § 1915(a) and dismiss any case it finds “frivolous or malicious,” 15 “fails to state a claim on which relief may be granted,” or “seeks monetary relief against a 16 defendant who is immune from relief.” 28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. 17 Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) 18 are not limited to prisoner.”); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en 19 banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires a district court to 20 dismiss an in forma pauperis complaint that fails to state a claim”). 21 The Court finds that Plaintiff’s Complaint is frivolous. A complaint is frivolous 22 when “the facts alleged rise to the level of the irrational or the wholly incredible, whether 23 or not there are judicially noticeable facts available to contradict them.” Denton v. 24 Hernandez, 504 U.S. 25, 25–26 (1992). “[A] complaint . . . is frivolous where it lacks an 25 arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). To 26 determine whether a complaint is frivolous, the court need not accept the allegations as 27 true, but must “pierce the veil of the complaint’s factual allegations,” id. at 327, to 28 /// 1 determine whether they are “‘fanciful,’ ‘fantastic,’ [or] ‘delusional.’” Denton, 504 U.S. at 2 33 (quoting Neitzke, 490 U.S. at 328). 3 Plaintiff generally claims that Defendants have committed “deadly & anti-scientific 4 misdeeds.” Compl. ¶ 9. Plaintiff alleges that “California[’]s border is flooded with illegal 5 alien children, most of who’ve escaped detention & many of whom carry the Covid-19 6 virus.” Id. ¶ 4. Plaintiff claims that these children are “vying to be detained” and “are 7 being used as human puppets by international narcotics & slavery cartels.” Id. ¶ 7. Plaintiff 8 further alleges that migrant children placed with family members in the United States did 9 not “receive DNA tests conforming [sic] them to any of these putative ‘family members’.” 10 Id. The Court finds that Plaintiff “lacks an arguable basis” for bringing this case. Neitzke, 11 490 U.S. at 325. Plaintiff’s allegations are a whirlwind of conspiracy theories that “rise to 12 the level of the irrational or the wholly incredible.” Denton, 504 U.S. at 33. Based on the 13 entirety of the Complaint, the Court finds Plaintiff’s allegations irrational, delusional, and 14 wholly incredible. 15 Having determined that the Complaint is frivolous, the Court DISMISSES 16 Plaintiff’s action. See Lopez, 203 F.3d at 1127 n.8. 17 III. Conclusion 18 Based on the foregoing, the Court GRANTS Plaintiff’s Motion to Proceed IFP, 19 (ECF No. 2) and DISMISSES WITHOUT PREJUDICE Plaintiffs’ Complaint. Plaintiff 20 MAY FILE an amended complaint that remedies the deficiencies outlined above within 21 thirty (30) days of the date on which this Order is electronically docketed. Any amended 22 filing must be complete in itself, without reference to Plaintiff’s original Complaint. Any 23 claim not re-alleged in Plaintiff’s amended complaint will be considered waived. See S.D. 24 Cal. Civ L.R. 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 25 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); see also Lacey 26 v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with 27 leave to amend which are not re-alleged in an amended pleading may be “considered 28 waived if not repled”). 1 Should Plaintiff fail to file an amended complaint within the time provided, the Court 2 || will enter a final order dismissing this civil action with prejudice. 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: June 8, 2021 tt 8 jen Janis L. Sammartino 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28