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Terry Rivera v. Dennis Smith

March 15, 2011

TERRY RIVERA,
PLAINTIFF,
v.
DENNIS SMITH, ET AL.,
DEFENDANTS.



ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [Doc. #28]

INTRODUCTION

This lawsuit arises from the killing of Correctional Officer Jose Rivera ("Officer Rivera") by two inmates at the United States Penitentiary in Atwater, California ("USP Atwater"). On June 7, 2010, Plaintiff Terry Rivera, mother of Officer Rivera, filed a Complaint against numerous federal employees, alleging claims under the Fifth Amendment of the United States Constitution. Defendants filed a Motion to Dismiss on January 4, 2011, arguing that Plaintiff's Complaint should be dismissed under Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff has not filed an opposition to Defendant's Motion to Dismiss, but instead filed a First Amended Complaint ("FAC") on February 22, 2010. For the reasons that follow, the motion will be granted.

LEGAL STANDARD

Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a motion to dismiss for lack of subject matter jurisdiction. "It is a fundamental precept that federal courts are courts of limited jurisdiction. The limits upon federal jurisdiction, whether imposed by the Constitution or by Congress, must not be disregarded nor evaded." Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). A challenge to jurisdiction "can be either facial, confining the inquiry to allegations in the complaint, or factual, permitting the court to look beyond the complaint." Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cnty., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003).

Under Federal Rule of Civil Procedure 12(b)(6),a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). The Court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). As the Supreme Court has explained:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

To avoid a Rule 12(b)(6) dismissal, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face[.]" Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (citations omitted). "In sum, for a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

If a Rule 12(b)(6) motion to dismiss is granted, "[the] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). In other words, leave to amend need not be granted when amendment would be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002).

ALLEGED FACTS

Plaintiff is the surviving mother of Officer Rivera. Complaint at ¶ 5. Plaintiff sues individually and as the Administrator of the Estate of Officer Rivera. Id.

Officer Rivera was employed by the United States as a correctional officer at USP Atwater. Id. at ¶ 4. On June 20, 2008, Officer Rivera was murdered by two inmates at USP Atwater. Id. at ¶ 19. Officer Rivera was unmarried and without children at the time of his death. Id. at ¶ 5.

The Complaint alleges that Defendants are federal employees and at all relevant times were acting within the course and scope of their employment. Id. at ΒΆ 3. The Complaint alleges that Defendants were responsible for the creation of the dangerous conditions that led to Officer Rivera's death, which ...


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