The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DISMISS DEFENDANT'S MOTION TO [Doc. No. 9]
Presently before the Court is Defendant United States Department of Homeland Security, U.S. Customs and Border Protection ("DHS")'s motion to dismiss Plaintiff Gilberto Limon-Rodriguez ("Plaintiff")'s complaint. [Doc. No. 9.] For the reasons below, the Court GRANTS IN PART and DENIES IN PART DHS's motion.
The following facts are taken from the complaint. Plaintiff, a U.S. citizen, was on his way to visit his family in Mexico when he was detained by DHS employees. [Doc. No. 1, Compl. ¶¶ 1, 15-18.] Plaintiff alleges that when he tried to explain that he was a U.S. citizen, he was told to "shut up" and was called racial epithets and slurs. [Id. ¶¶ 1, 18.] Plaintiff also alleges that he was thrown to the ground and beaten by one of the DHS employees. [Id. ¶¶ 1, 19.] This resulted in injuries, which required surgery to repair. [Id. ¶¶ 1, 22-23.] Plaintiff further alleges that he has been harassed by DHS employees during subsequent border crossings into Mexico. [Id. ¶¶ 1, 24.] Plaintiff believes this harassment is in retaliation for his filing a claim based on the prior incident with the DHS Border Patrol office in Calexico. [Id.]
On February 25, 2011, Plaintiff filed the present action in the District of Nevada against DHS and Does 1 through 25 ("the Doe defendants"), in their individual and official capacity,*fn1 alleging eight causes of action for: (1) violation of the Fourth Amendment; (2) violation of the Fifth Amendment; (3) intentional infliction of emotional distress; (4) negligent infliction of emotional distress; (5) assault, false imprisonment, and kidnapping; (6) battery; (7) negligence; and (8) deprivation of civil rights through 42 U.S.C. §§ 1983, 1985, and 1986. [Compl.] On March 31, 2012, the action was transferred from the District of Nevada to this Court. [Doc. No. 25.] By the present motion, DHS moves to dismiss causes of action 1, 2, 3, 4 and 8 of Plaintiff's complaint. [Doc. No. 9, Def.'s Mot.]
I. Legal Standard on a Motion to Dismiss
Federal courts are courts of limited jurisdiction, and have power to hear only those cases authorized by the Constitution and statutes enacted by Congress. Couch v. Telescope Inc., 611 F.3d 629, 632 (9th Cir. 2010) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). Therefore, federal courts have an obligation to dismiss claims for which they lack subject-matter jurisdiction. Demarest v. United States, 718 F.2d 964, 965 (9th Cir. 1983).
Federal Rule of Civil Procedure 12(b)(1) provides that a defendant may move to dismiss a complaint for lack of subject-matter jurisdiction. "A Rule 12(b)(1) jurisdictional attack may be either facial or factual." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). "In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment." Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004) (internal citations omitted). "The court need not presume the truthfulness of the plaintiff's allegations." Safe Air for Everyone, 373 F.3d at 1039 (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Id. When resolving a facial dispute, the Court assumes a plaintiff's factual allegations to be true and draws all reasonable inferences in his favor. Wolfe, 392 F.3d at 362.
"When subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Tosco Corp. v. Communities for a Better Env't., 236 F.3d 495, 499 (9th Cir. 2001) (per curiam), abrogated on other grounds by Hertz Corp v. Friend, 130 S. Ct. 1181 (2010).
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 do." 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).