The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FIRST, SECOND, THIRD, FIFTH, AND SIXTH CAUSES OF ACTION
On December 1, 2010, Plaintiff filed this action against Defendants, the United States of America, Eric Nichols Camarillo, and Does 1 through 10. (Doc. No. 1.) Pending is the United States' Motion to Dismiss Plaintiff's first, second, third, fifth, and sixth causes of action, filed March 25, 2011. (Doc. No. 5.)
In her Complaint, Plaintiff alleges that Camarillo, a law enforcement officer employed by the United States Bureau of Prisons, raped Plaintiff against her will while she was an inmate at the Federal Correctional Complex, Victorville. Plaintiff alleges that she became pregnant and sustained harm as a result of the sexual assault.
Plaintiff brings this case against the USA pursuant to the Federal Tort Claims Act (FTCA) 28 U.S.C. § 1346(b) and against Camarillo pursuant to Bivens v.Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff alleges six causes of action: (1) Negligence against the USA; (2) Negligent Hiring, Training, Retention and Supervision against the USA; (3) Wrongful Conduct against the USA; (4) Violation of Plaintiff's Eighth Amendment Rights against Camarillo; (5) Violation of California Civil Code Section 52.1 against Camarillo and Does 1-10; and (6) Violation of Gender Motivated Violence Act 42 U.S.C. § 13981 et seq. against Camarillo and Does 1- On March 25, Defendant USA filed a motion to dismiss Plaintiff's first, second, third, fifth, and sixth causes of action. Plaintiff's fourth claim alleging a Bivens claim against Camarillo is not addressed in the Defendant's motion.
LEGAL STANDARD FOR RULE 12(b)(6) MOTION TO DISMISS
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must accept all factual allegations pleaded in the complaint as true, and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337--38 (9th Cir.1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, ------ U.S. --------, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).
However, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)) (alteration in original). A court need not accept "legal conclusions" as true. Iqbal, 129 S.Ct. at 1949. In spite of the deference the court is bound to pay to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts that [he or she] has not alleged or that defendants have violated the ... laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.' " Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557).
For a Rule 12(b)(6) motion, a court generally cannot consider material outside the complaint. See Branch v. Tunnell, 14 F.3d 449, 453--54 (9th Cir.1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). A court may, however, consider exhibits submitted with the complaint. Van Winkle v. Allstate Ins. Co., 290 F. Supp.2d 1158, 1162 n. 2 (C.D. Cal. 2003). A court may disregard allegations in the complaint if they are contradicted by facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.
A. Plaintiff's FTCA Claims Should be Dismissed for Lack of Subject Matter Jurisdiction
The United States argues that Plaintiff failed to bring her FTCA claims within the proper time period and, thus, the Court lacks subject matter jurisdiction over her first, second, and third causes of In order to bring a tort claim against the United States under the FTCA, potential plaintiffs must file an administrative claim with the appropriate federal agency pursuant to 28 U.S.C. 2675(a). The administrative claim must be presented to the agency within two years of the claim's accrual. 28 U.S.C. 2401(b). Plaintiff alleges that the rape occurred on January 11, 2008, and she did not file her administrative claim until March 17, 2010. The United States argues that her FTCA claims should be dismissed for her failure to file within the required two year period.
In her response, Plaintiff acknowledges that more than two years passed between the alleged rape and the filing of her FTCA claim. However, Plaintiff argues that the applicable time period is tolled based on the time between the rape and her release from prison on March 17, 2008. California Code of Civil Procedure 325.1 provides that when a person entitled to bring an action "is, at the time the cause of action accrued, imprisoned on a criminal charge or in execution under the sentence of a criminal court for a term less than for life, the time of that disability is not a part of the time limited for the commencement of the action, not to exceed two years."
The FTCA represents a waiver of the sovereign immunity of the United States, and, as such, must be strictly construed. Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 94-95 (1990); United States v. Kubrick, 444 U.S. 111, 117-18 (1979); Soriano v. United States, 352 U.S. 270, 276 (1957). While substantively the FTCA follows state liability law, section 2401(b) unequivocally provides a statute of limitations for FTCA claims in order to "encourage the prompt presentation of claims." Kubrick, 444 U.S. at 117. Accordingly, courts look to state law for the purpose of defining the actionable wrong for which the United States shall be liable ...