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MURILLO-PEREZ v. U.S.

United States District Court, S.D. California


October 3, 2005.

MURILLO-PEREZ, Plaintiff,
v.
UNITED STATES ET AL., Defendants.

The opinion of the court was delivered by: RUDI BREWSTER, Senior District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS [4-1] AND MOTION TO STRIKE [4-2]
I. INTRODUCTION
Before the Court is Defendants United States, et al.'s Motion to Dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction (SMJ) and under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted under. Also before the Court is Defendants' Motion to Strike under Rule 12(f) of the Federal Rules of Civil Procedure. As discussed below, the Court GRANTS IN PART AND DENIES IN PART Defendants' Motion to Dismiss and Motion to Strike.

II. FACTUAL BACKGROUND

  Plaintiff Maria Murillo-Perez (Perez) brings this damage action to recover for injuries sustained when she was shot by Senior Border Patrol Agent ("SBPA") Rodney Nelson near the San Ysidro Port of Entry. The Defendants are the United States, SBPA Nelson, and unnamed American law enforcement personnel.

  At approximately 9:00 p.m. on October 4, 2003, Plaintiff Perez, a legal resident alien residing in San Diego County, was sitting in the driver's seat of her car alongside Interstate 805 near the San Ysidro Port of Entry. Two illegal aliens, Hector Gonzalez-Solano and Omar Osuna-Sital, jumped into Perez's car, forcing her to the passenger side. Solano then drove the vehicle toward SBPA Nelson who fired at the vehicle and struck Solano*fn1 and Perez. Perez was shot in the hip. Solano drove the car across the US border into Mexico where all three were detained by the Mexican authorities.

  Three hours after the shooting, American law enforcement personnel interviewed Perez without advising Perez of her rights and without offering her medical treatment. Perez remained in Mexican custody for one week. Upon her return to the United States, Perez was arrested and charged with illegally transporting Sital in violation of 8 U.S.C. § 1326. The government later dismissed its charges against Perez.

  III. PROCEDURAL HISTORY

  On December 22, 2004, Perez filed the present lawsuit in district court suing (1) the United States government under the Federal Tort Claims Act ("FTCA"); (2) law enforcement personnel based on a conspiracy theory, and (3) SBPA Nelson under Bivens. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (recognizing an individual's right of action against government agents on Constitutional grounds). Perez's complaint consists of the following eight claims: Claim I: Negligence (against Defendant United States)

 

Claim II: Negligent hiring, training, retention and supervision (against Defendant United States)
Claim III: Wrongful Conduct (against Defendant United States)
Claim IV: Fourth Amendment violations (against Defendants Nelson and Does 1-100)
Claim V: Fifth Amendment violations (against Defendants Nelson and Does 1-100)
Claim VI: Cal. Civ. Code § 52.1 violations (against Defendant United States)
Claim VII: Conspiracy (against Defendant United States)
  Claim VIII: Sixth Amendment violations (against Defendants Nelson and Does 1-100) The Court issued an order on May 12, 2005, permitting the United States to substitute for SBPA Nelson as the sole defendant under FTCA Claims VI (for Cal. Civ. Code § 52.1 violations) and VII (for Conspiracy). See Doc. Nos. 7 and 8; see also the Westfall Act, codified at 28 U.S.C. § 2679 (2005). On May 9, 2005, Defendants filed a motion to dismiss Claim III (for wrongful conduct); Claim V (for Fifth Amendment Bivens claim); Claim VI (for Cal. Civ. Code § 52.1 violations); Claim VII (for conspiracy); and Claim VIII (for Sixth Amendment Bivens claim). Defendants also filed a motion to strike damages, attorneys' fees, and prejudgment interests from the prayer for relief. The Court heard oral arguments for these motions on Monday, September 12, 2005.

  IV. DISCUSSION

  A. Motion to Dismiss under Rule 12(b)(1) for lack of SMJ

  Under Rule 12(b)(1), a defendant may seek to dismiss a complaint for "lack of jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(1) (2005). When considering a 12(b)(1) motion to dismiss, the district court is "free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). The primary sources of federal subject matter jurisdiction are federal question jurisdiction (28 U.S.C. § 1331), diversity jurisdiction (28 U.S.C § 1332), and supplemental jurisdiction (28 U.S.C. § 1367). Diversity and supplemental jurisdiction are not at issue in this case. Here, Plaintiff raises a plethora of Bivens claims against federal agents and FTCA claims against the United States. Because Plaintiff's claims involve federal questions, the Court has SMJ, as discussed below.

  1. Bivens Actions

  A Bivens Action is a judicially created damages remedy designed to vindicate violations of constitutional rights by federal actors. See Bivens, 403 U.S. at 395-7. A Bivens remedy is available if "(1) Congress has not already provided an exclusive statutory remedy; (2) there are no `special factors counseling hesitation in the absence of affirmative action by Congress'; and (3) there is no explicit congressional declaration." Hall v. Clinton, 235 F.3d 202, 204 (4th Cir. 2000) (citing Bivens, 403 U.S. at 396-7); see also Schweiker v. Chilicky, 487 U.S. 412, 423 (1988). Unlike the FTCA, a Bivens claim is recoverable against the individual federal actors. Correctional Serv. Corp. v. Malesko, 534 U.S. 61, 69 (2001) (internal citations omitted). Because Bivens actions involve federal questions, the Court has SMJ over the Bivens claims in this lawsuit.

  2. Federal Tort Claims Act

  The FTCA provides the district court jurisdiction over actions against the United States for injury "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1) (2005). Hence, the United States waives sovereign immunity for claims under the FTCA. See Blackburn v. United States, 100 F.3d 1426, 1429 (9th Cir. 1996). District Courts have original jurisdiction over FTCA claims. See 28 U.S.C. § 1346 (a) (2005).

  However, the FTCA limits the statutory waiver of sovereign immunity by enumerating a number of exceptions, including the discretionary function exception to the FTCA. See 28 U.S.C. § 2680 (2005). District Courts lack subject matter jurisdiction over the government if one of the FTCA exceptions applies to the case. Here, the instant case as alleged does not involve any exceptions. Therefore, the Court finds that it has subject matter jurisdiction over the FTCA claims in dispute

  Additionally, the FTCA provides that the exclusive remedy for torts by federal employees acting within the scope of their employment is against the United States, not against the federal employee or the federal agency. See U.S.C. § 2679(b)(1)(2005). The FTCA, however, does not bar suit against federal employees for violations of the United States Constitution (i.e. Bivens claims) or for violations of federal statutes that mandate suit against federal employees. See 28 U.S.C. § 2679(b)(2) (2005). Thus, Plaintiff Perez can pursue FTCA claims against the United States and Bivens claims against federal employees in the same lawsuit. Because the Court has subject matter jurisdiction over the FTCA claims and Bivens claims in dispute, the Court DENIES Defendants' Motion to Dismiss Claims for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure.

  B. Motion to Dismiss under Rule 12(b)(6) for failure to state a claim

  A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims in the complaint. The court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to plaintiff. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Furthermore, a court should not grant a Rule 12(b)(6) motion without leave to amend unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id.; see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Gilligan v. Jamco Development Corp., 108 F.3d 246, 248 (9th Cir. 1997). FTCA Claim I (for negligence), FTCA Claim II (for negligent hiring, training, retention and supervision), and Bivens Claim IV (for violation of the Fourth Amendment) are not the subject of the instant motion to dismiss. Defendants move to dismiss Bivens Claims V (for violation of the Fifth Amendment) and VIII (for violation of the Sixth Amendment) and FTCA Claims III (for wrongful conduct), VI (for a violation of Cal. Civ. Code § 52.1), and VII (for conspiracy).

  1. Bivens Claim V

  Claim V is a Bivens Claim against Defendant Nelson and unnamed Defendants for Violation of the Fifth Amendment. Defendants move to dismiss Claim V on the grounds that excessive force claims should be analyzed under the "reasonableness" standard of the Fourth Amendment, rather than under the "due process" approach of the Fifth Amendment. Plaintiff does not oppose the motion to dismiss Claim V. Therefore, the Court GRANTS, as unopposed, Defendants' motion to dismiss Claim V for failure to state a claim upon which relief can be granted.

  2. Bivens Claim VIII

  Claim VIII is a Bivens Claim against Defendant Nelson and unnamed Defendants for Violation of the Sixth Amendment based on Defendants' alleged failure to advise Plaintiff of her right to counsel during her interrogation in Mexico. Defendants argue that Claim VIII should be dismissed because (1) Plaintiff does not allege that Agent Nelson participated in the questioning at issue, (2) because the questioning occurred pre-indictment, and (3) because the questioning occurred in Mexico. Plaintiff did not address the dismissal of Claim VIII in her brief. During oral argument, Plaintiff agreed to the dismissal of this claim. Therefore, the Court GRANTS, as unopposed, Defendants' motion to dismiss Claim VIII for failure to state a claim upon which relief can be granted.

  3. FTCA Claim III

  Claim III is a FTCA claim against the United States as a sole defendant based on the wrongful conduct of SBPA Nelson. Defendants argue that this claim should be dismissed because California law does not allow recovery for excessive force by police officers based on a wrongful conduct theory but does allow for recovery based on police battery. Plaintiff does not oppose the dismissal of Claim III based on wrongful conduct and seeks to amend her complaint to add a cause of action for battery in lieu of wrongful conduct. Therefore, the Court GRANTS, as unopposed, Defendants' motion to dismiss Claim III for failure to state a claim upon which relief can be granted and GRANTS Plaintiff 20 days leave to amend the complaint.

  4. FTCA Claim VI

  The United States is immune from suit except to the extent that it consents to be sued. United States v. Mitchell, 445 U.S. 535, 538 (1980) (internal citations omitted). The government asserts that the United States has not waived its sovereign immunity to be sued under California Civil Code § 52.1 (hereafter Section 52.1) and has only consented to be sued under the FTCA, which provides for an exclusive remedy. Plaintiff Perez maintains that the FTCA does allow suit under Section 52.1 for claims brought against the federal government.

  The FTCA provides a cause of action against the United States government for "the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1) (2005). Thus, the FTCA applies only if state law would impose liability on private persons or on state entities under similar or analogous circumstances. See Woodbridge Plaza v. Bank of Irvine, 815 F.2d 538, 543 (9th Cir. 1987); Concrete Tie v. Liberty Construction, Inc., 107 F.3d 1368, 1371 (9th Cir. 1997).

  Here, Plaintiff brings a FTCA claim against the government based on alleged violations of Section 52.1 as the "negligent or wrongful act or omission" requirement of the FTCA. Section 52.1 provides a cause of action against people, "whether or not acting under color of law," who interfere or attempt to interfere with "rights secured by the Constitution or laws of the United States" or "rights secured by the Constitution or laws of this state" by threats, intimidation, or coercion. Cal. Civ. Code § 52.1 (2005). Section 52.1 is broad in that it covers violations of both federal and state constitutions and laws. However, FTCA does not cover violations of federal law. Therefore, to the extent that a plaintiff's claim under Section 52.1 is based on alleged violations of the United States Constitution, the claims would be barred by the FTCA. See FDIC v. Meyer, 510 U.S. 471,477-78, (1994). To the extent that a plaintiff's Section 52.1 claim is based on violations of California's Constitution and laws, the claims would not be barred. See id. Here, Plaintiff bases her Section 52.1 claim on inter alia Article I, Section 1 of the California Constitution. As such, Plaintiff's Section 52.1-based FTCA claim is not barred.

  Additionally, the FTCA requires that a suit against the United States must be for circumstances "where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Here, if the United States were a private person, such as a private security guard, it would be liable for violations of Section 52.1 because Section 52.1 provides a cause of action regardless of whether the person acted under color of law. Therefore, based on a plain reading of the FTCA and Section 52.1, the Court finds that Plaintiff's Section 52.1-based FTCA claim is not barred.

  Defendants cite to Munyua v. United States (unpublished) for the proposition that there is no precedent for a claim against the United States under the California Constitution or Section 52.1 of the California Civil Code. 2005 U.S. Dist. LEXIS 11499, *36 (N.D. Cal. Jan 10, 2005) (granting Defendant's motion for summary judgment under Article I, Section 1 of the California Constitution and Section 52.1). Notwithstanding the fact that Munyua is not precedent, the Munyua Court did not dismiss plaintiff's claims because they were not viable against the United States government. Id. Instead, the Court dismissed the Article I, Section 1 claim because Plaintiff did not show that the federal government's interference with her liberty to raise her child was a violation of the state constitution. The Court similarly dismissed Plaintiff's Section 52.1 claim because it was a derivative of the Article I, Section 1 claim. Id.

  During oral arguments, Defendants cited to Delta Savings Bank v. United States of America, for the proposition that a violation of Section 52.1 cannot serve as the basis of a FTCA claim. 265 F.3d 1017 (9th Cir. 2001). In Delta Savings Bank, a plaintiff sought to bring a FTCA claim against the government based on a violation of 42 U.S.C. § 1986. 265 F.3d at 1024. Because the FTCA claim could not be based on violations of federal statutes, plaintiff brought the Section 1986 claim as a Section 52.1 claim, arguing that Section 52.1 incorporated the federal civil rights act, and then alleged that the Section 52.1 claim was a violation of the FTCA. Id. Thus, plaintiff tried to bootstrap the federal civil rights act onto Cal Civ Code 52.1 and then bootstrap Section 52.1 onto the FTCA. The Delta Savings Bank Court held that the FTCA claim was improper because Section 52.1 could not be used to incorporate the federal civil rights act to provide a cause of action under the FTCA. Id. However, the Court did not state that Section 52.1 could not serve as the basis of a FTCA claim.

  Defendants are correct in asserting that plaintiff cannot bring a pure Section 52.1 claim against the United States. However, contrary to Defendants' arguments, plaintiff can bring a FTCA claim against the United States based on violations of Section 52.1 that are based on violations of the California Constitution or California state laws. Because Claim VI is a FTCA claim, the FTCA provides the exclusive remedy for this cause of action, not Section 52.1. See U.S.C. § 2679(b)(1)(2005). Therefore, the Court DENIES Defendants' Motion to Dismiss Claim VI for failure to state a claim upon which relief can be granted. Because Plaintiff has multiple FTCA Claims, the Court ORDERS Plaintiff to bring all FTCA claims in one section of the complaint. The Court GRANTS Plaintiff 20 days leave to amend the complaint. 4. FTCA Claim VII

  Defendants move to dismiss Claim VII on the grounds that California law does not recognize conspiracy as an independent tort. Defendants further suggest that instead of raising conspiracy as an independent claim, Plaintiff should allege conspiracy in the sections of the complaint that contain claims for underlying torts. Plaintiff does not oppose Defendants' motion to dismiss Claim VII and agrees to include conspiracy allegations in her relevant separate causes of action. Therefore, the Court GRANTS, as unopposed, Defendants' motion to dismiss Claim VII for failure to state a claim upon which relief can be granted and GRANTS Plaintiff 20 days leave to amend the complaint accordingly. Thus, the claims that remain in the present case are FTCA Claim I (for negligence), FTCA Claim II (for negligent hiring, training, retention and supervision), Bivens Claim IV (for violation of the Fourth Amendment), and FTCA Claim VI (for violations of Cal. Civ. Code Section 52.1).

  C. Motion to Strike under Rule 12(f)

  Under Rule 12(f) of the Federal Rules of Civil Procedure, "the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded." 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1382, at 706-07 (1990). "Impertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question." Id. at 711.

  1. FTCA Damages

  Defendants move to strike Plaintiff's prayer for relief because the amount of damages she seeks impermissibly exceeds the statutory cap for her FTCA claim. In particular, Plaintiff's administrative claim for $103,000 serves as the statutory cap on her request for damages. Plaintiff agrees to limit the damages for the FTCA claims to $103,000 (i.e. the amount of her administrative claim). Therefore, the Court GRANTS, as unopposed, Defendants' motion to strike Plaintiffs request for FTCA damages that exceed $103,000.

  2. Prejudgment Interest

  Defendants also move to strike Plaintiff's prayer for relief on the grounds that it impermissibly seeks prejudgment interest against all Defendants. Under the FTCA, the United States is not liable for prejudgment interest. See 28 U.S.C. § 2674 (2005). Plaintiff agrees to amend the complaint by striking her request for prejudgment interest for the FTCA claims. Therefore, the Court GRANTS, as unopposed, Defendants' motion to strike Plaintiff's request for prejudgment interest for the FTCA claims and GRANTS Plaintiff 20 days leave to amend her complaint.

  In addition to the FTCA claims, Plaintiff raises Bivens claims against the federal agents. There is no bar on prejudgment interests in Bivens claims. Therefore, the Court DENIES Defendant's motion to strike Plaintiff's request for prejudgment interest for the Bivens claims.

  3. Attorneys' Fees

  Defendant also move to strike the prayer for relief on the grounds that it impermissibly seeks attorneys' fees against SBPA Nelson. In particular, Defendants argue that FTCA bars recovery of attorneys' fees in excess of 25% of the FTCA recovery. See 28 U.S.C. § 2678 (2005). Plaintiff does not address this motion to strike in her brief. The Court GRANTS, as unopposed, Defendants' motion to strike any request for attorneys' fees that exceed the statutory maximum for FTCA claims.

  IV. Conclusion

  For the reasons stated above, the Court DENIES Defendants' Motion to Dismiss claims under Rule 12(b)(1) of the Federal Rules of Civil Procedure; GRANTS, as unopposed, Defendants' Motion to Dismiss Claims III, V, VII, and VIII under Rule 12(b)(6) of the Federal Rules of Civil Procedure; and DENIES Defendants' Motion to Dismiss Claim VI under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Court GRANTS Plaintiff 20 days leave to amend the complaint. Therefore, the claims that remain in the lawsuit are FTCA Claim I (for negligence), FTCA Claim II (for negligent hiring, training, retention and supervision), Bivens Claim IV (for violation of the Fourth Amendment), and FTCA Claim VI (for violations of Cal. Civ. Code Section 52.1).

  The Court GRANTS, as unopposed, Defendants' motion to strike Plaintiff's request for FTCA damages that exceed $103,000; GRANTS, as unopposed, Defendants' motion to strike Plaintiff's request for prejudgment interest for the FTCA claims; DENIES Defendants' motion to strike Plaintiff's request for prejudgment interest for the Bivens claim; and GRANTS, as unopposed, Defendants' motion to strike any request for attorneys' fees for FTCA claims that exceed the statutory maximum of 25% of the FTCA recovery.

  IT IS SO ORDERED.

20051003

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