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]
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.
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.
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
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
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.
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. ...