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CHAVEZ v. INS

September 30, 1998

MARCOS CHAVEZ; MARISELA FRANCO; GLORIA YANEZ DE LOPEZ; DULCE AURORA LOPEZ, a minor, by and through her Guardian Ad Litem, GLORIA YANEZ DE LOPEZ; LUCERO YETZEMANIT LOPEZ, a minor by and through her Guardian Ad Litem, GLORIA YANEZ DE LOPEZ; SOCORRO MONTANO DE SILVA; ADRIANA JAZMIN SILVA, a minor by and through her Guardian Ad Litem, SOCORRO MONTANO DE SILVA, and GLADYS ALONDRA SILVA, a minor, by and through her Guardian Ad Litem, SOCORRO MONTANO DE SILVA, Plaintiffs,
v.
IMMIGRATION AND NATURALIZATION SERVICE, an agency of the United States; U.S BORDER PATROL, an agency of the United States, AGENT J. WAINER, an individual; AGENT BROWN, an individual; AGENT C. SEARS, an individual; AGENT S. ROJAS; an individual; AGENT R. RIFLE, an individual; AGENT J. PAISLEY, an individual; AGENT R. ROBERTS, an individual; UNITED STATES OF AMERICA; DOES 1 through 100, Defendants.



The opinion of the court was delivered by: BREWSTER

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' SEVENTH CAUSE OF ACTION WITH LEAVE TO AMEND RE. INDIVIDUAL DEFENDANTS; GRANTING STIPULATED DISMISSAL RE. ALL LISTED DEFENDANTS OTHER THAN THE UNITED STATES OF AMERICA FOR CAUSES OF ACTION ONE THROUGH SIX; AND GRANTING PLAINTIFFS' REQUEST TO DISMISS ALL DOE DEFENDANTS

 I. Introduction

 This case involves several Federal Tort Claims Act (FTCA) claims and a Bivens claim resulting from an automobile accident allegedly caused because of the U.S. Border Patrol's pursuit of a fleeing vehicle. The accident resulted in death and serious injuries. Plaintiffs Marcos Chavez, et al., bring this action against the United States, the Immigration and Naturalization Service (INS) and the U.S. Border Patrol, agencies of the U.S. Government, and seven individual employees of these agencies. The instant matter is the Defendants' Motion to Dismiss the complaint and all but one causes of action therein pursuant to Fed. R. Civ. P. 12(b)(6).

 Plaintiffs' Complaint alleges seven causes of action against Defendants. *fn1" Claims one through six are FTCA claims for negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, wrongful death, negligence (personal injury/survival), and loss of consortium. Plaintiffs' seventh cause of action is a Bivens claim alleging various constitutional violations. All Parties concur that Plaintiffs' FTCA causes of action do not properly lie against the individual Defendants and that the only proper Defendant under the FTCA is the United States. Therefore, causes of action one through six should be dismissed as to all Defendants but the United States. While not raised by Parties in their respective briefs, the Court notes that the FTCA claims against the United States may be time barred under 28 U.S.C. ยง 2401(b) ("Time for commencing action against United States"). However, since this issue is left unaddressed by both Parties, Plaintiffs' FTCA actions are not dismissed as to the United States. Plaintiffs have leave to amend their Complaint.

 All Parties also agree that Bivens claims do not lie against the United States or its agencies. Thus, only the individual defendants can be the subject of the Plaintiffs' Bivens claims. Finally, all Parties agree that all DOE defendants should be dismissed. Plaintiffs voluntarily request the Court's dismissal of the above defendants; leave to dismiss will be granted as to these matters.

 The question left before this court is whether the Plaintiffs' seventh claim -- the Bivens claim -- should be dismissed against the individual defendants. *fn2" Defendants assert that Plaintiffs' Bivens claim is time-barred; Plaintiffs contend otherwise. Both Parties cite to Ninth Circuit Court of Appeals case law to support their claim. In light of the apparent split in Ninth Circuit case law, the answer to whether this matter is time-barred must turn on an analysis of the apparently contradictory positions of different Ninth Circuit panels.

 II. Factual Background

 On or about April 29, 1995, near Jamul, California, a west-bound van carrying Marcos Chavez, Roberto Lopez, and Antonio Silva Frias was struck by an east-bound pickup truck. The resulting accident killed Mr. Lopez and Mr. Frias; Plaintiff Chavez allegedly suffered personal injuries. Besides Plaintiff Chavez, other plaintiffs in this case include Roberto Lopez's spouse and daughters, Antonio Silva Frias' spouse and daughters, and Marcos Chavez's spouse. Plaintiffs allege that the accident proximately resulted from a high-speed chase of the eastbound pickup truck, a chase allegedly initiated and maintained by agents of the U.S. Border Patrol. Plaintiffs allege that this chase was contrary to both the internal policies of the Border Patrol and the laws of the State of California. Plaintiffs filed their Complaint on March 4, 1998.

 III. Analysis

 A. Standard of Law

 A motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of the claims in the complaint. The Court must accept as true the complaint's material allegations and any reasonable inferences that may be drawn from them. See Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The Court will dismiss a claim if the complaint, when construed in the light most favorable to plaintiff, fails to plead sufficiently all required elements of a cause of action. See Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). A case can only be dismissed without leave to amend on the grounds that the statute of limitations has run if it is clear from the complaint that it would not be possible for plaintiff to prove that the statute was tolled. Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1995).

 B. The Plaintiffs' Bivens Cause of Action is Time- Barred3

 Plaintiffs and Defendants cite to apparently contradictory Ninth Circuit case law in support of their respective statute of limitations positions. Plaintiffs rely upon Gerritsen v. Consulado General de Mexico, 989 F.2d 340 (9th Cir. March 30, 1993), for the assertion that a Bivens claim for a personal injury claim in the State of California is subject to a four-year statute of limitations. See Plaintiffs' Opposition to Motion to Dismiss, p. 2, ln. 5-13 ("The statute of limitations for a Biven's action in California is governed by Section 343 of the California Code of Civil Procedure, and therefore carries with it a four year statute of limitations."). Conversely, Defendants cite to Matthews v. Macanas, 990 F.2d 467 (9th Cir. March 31, 1993), decided one day after Gerritsen, for the proposition that the ...


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