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MURILLO-PEREZ v. U.S.

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. ...


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