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Zaldivar v. U.S. Department of Veterans Affairs

United States District Court, D. Arizona

December 24, 2014

Jose Adalberto Zaldivar, Plaintiff,
United States Department of Veterans Affairs, et al., Defendants.


DAVID G. CAMPBELL, District Judge.

Plaintiff Jose Adalberto Zaldivar, Sr., who is confined in the Arizona State Prison Complex, Eyman, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. §§ 1981, 1982, 1983, 1985, and 1986, as well as Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Freedom of Information Act ("FOIA"), 5 U.S.C. §522, et seq., (Doc. 1). Plaintiff has also filed an Application to Proceed In Forma Pauperis (Doc. 2), a Motion to Appoint Counsel (Doc. 4), and a Motion for Clarification and Status of the Case (Doc. 8). The Court will deny the Motion to Appoint Counsel without prejudice and grant the Motion for Clarification. The Court will require Defendants Veterans Affairs Regional Office-Phoenix, Veterans Affairs Office of General Counsel, and Veterans Affairs Office of the Inspector General to answer Counts One and Two of the Complaint. All other claims and defendants are dismissed without prejudice.

I. Application to Proceed In Forma Pauperis and Filing Fee

Plaintiff's Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will assess an initial partial filing fee of $35.83. The remainder of the fee will be collected monthly in payments of 20% of the previous month's income credited to Plaintiff's trust account each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.

II. Statutory Screening of Prisoner Complaints

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2).

A pleading 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) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 681.

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) ( per curiam )).

If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) ( en banc ). Plaintiff's Complaint will be dismissed for failure to state a claim, but because it may possibly be amended to state a claim, the Court will dismiss it with leave to amend.

III. Complaint

In his three-count Complaint, Plaintiff sues the Veterans Affairs Regional Office-Phoenix ("VARO"), the Department of Veterans Affairs Office of General Counsel ("OGC"), the Department of Veterans Affairs Office of the Inspector General ("OIG"), and Pima County.

In Count One, Plaintiff makes the following allegations: On October 20, 2002, Plaintiff submitted a FOIA request to the VARO, asking for copies of statements and letters filed by Rebecca Zaldivar-Plaintiff's ex-wife-against Plaintiff in his veteran compensation file. On November 16, 2002, the VARO provided Plaintiff "copies of the documents to and from" Rebecca Zaldivar. Plaintiff alleges that personal information had been redacted from some of the documents he received and other documents were missing their corresponding attachments.

On April 13, 2005, Plaintiff submitted a second FOIA request to VARO asking for the missing attachments and for a "copy of a VA letter dated January 6, 2005" that Plaintiff had never received from the Department of Veterans Affairs ("VA"). On April 22, 2005, the VARO "provided four (4) additional copies of [the] documents submitted by Rebecca Zaldivar since November 2002, redacting addresses and personal information." The VARO also "included [a] copy of the letter dated January 6, 2005."

On July 10, 2007, Plaintiff filed a third FOIA request, seeking various documents submitted to the VA by Rebecca Zaldivar and the VA's responses to Rebecca Zaldivar's inquiries or requests concerning Plaintiff's VA file. On September 25, 2007, the VARO provided Plaintiff 17 sets of documents, but noted that personal information contained in the documents had been redacted.

On December 20, 2007, Plaintiff filed a FOIA appeal, alleging that the VARO had denied Plaintiff access to certain documents. The VARO responded that they had given Plaintiff the documents he requested and that the only information redacted from the documents was Rebecca Zaldivar's personal information. The VARO stated that releasing Rebecca Zaldivar's personal identifying information would constitute an "unwarranted invasion of personal privacy[.]"

On February 14, 2008, Plaintiff appealed this decision to the OGC, claiming that the VARO's denial of this information "hampers Plaintiff's right to a fair trial" and that disclosing the redacted information would not invade his ex-wife's privacy because "the information in Plaintiff's files contain documents submitted on Plaintiff's behalf by a former spouse during the marriage[.]" Plaintiff claims that his ex-wife "willingly submitted the documents [that contain her personal information] on [Plaintiff's] claim file and in support of and/or [on Plaintiff's] behalf during [their] marriage." On August 4, 2010, OGC responded to Plaintiff's appeal, noting that Plaintiff seemed to be appealing two separate issues: the redaction of his ex-wife's personal information and Plaintiff's assertion that the VARO has failed to provide him with a claim submitted by his ex-wife on October 1, 2001. The OGC ultimately denied Plaintiff's appeal after determining that releasing his ex-wife's personal information would constitute an invasion of privacy and that the October 1, 2001 document sought by Plaintiff was never received by the VA and was not in Plaintiff's file.

On April 26, 2012, Plaintiff submitted a fourth FOIA request, this time asking for the following documents: application for apportionment to support Plaintiff's dependent spouse; a VA letter dated April 3, 2012, stating that Plaintiff's ex-wife is entitled to benefits; "correspondence in response and reply to the application [for] apportionment"; "complete address of the VA Office of [the] Inspector General"; "notes, telephone calls, and inquir[i]es [related] to the application for apportionment"; [a]ny and all documentation, application, inquiry or requests, made by letter or phone conversation, in connection with Plaintiff's VA compensation claim to include the names, addresses and phone numbers of the requesting party or parties involved, after Feb[ruary] 16, 2001"; a list of names and contact information "of benefits payable claimed by surviving spouses, dependent spouses and children entitled to dependency and i[n]dem[n]ity compensation (DIC)."

After receiving no response to his fourth FOIA request, on June 4, 2012, Plaintiff filed another FOIA appeal with the VARO. On June 21, 2012, Plaintiff received a copy of his entire claim folder except his "service treatment records" which, according to ...

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