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Eloy Olivas and Elvira Olivas v. United States of America

March 21, 2013

ELOY OLIVAS AND ELVIRA OLIVAS,
PLAINTIFFS,
v.
UNITED STATES OF AMERICA, OFFICER CHARLES JONES, AND DOES 2-20, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Motion to Dismiss Plaintiffs' First Amended Complaint, filed by Defendants United States of America and Officer Charles Jones. (ECF No. 27).

I. Background

On November 8, 2011, Plaintiffs initiated this action by filing a Complaint against Defendant United States of America ("United States"). (ECF No. 1).

On September 20, 2012, Plaintiffs filed a First Amended Complaint against the United States and Defendant Officer Charles Jones. (ECF No. 18). The First Amended Complaint alleges:

On or about January 15, 2010, at approximately 6:00 a.m., Plaintiff Eloy Olivas was driving his pickup truck near the Calexico, East, Port of Entry, in Imperial County, California, on his way to Mexico. Mr. Olivas was stopped by [Customs and Border Protection ('CBP')] officers and was ordered to drive to an area where CBP officers were inspecting vehicles that were leaving the United States to enter Mexico.

At the inspection area, Mr. Olivas waited inside his pickup truck while CBP officers inspected his truck and other vehicles nearby. Officer Jones, who was handling a dog, attempted to have the dog jump into the bed of Mr. Olivas' pickup truck, but the dog repeatedly slipped off the truck and, in so doing, scratched the truck. Seeking to stop this damage to his property, Mr. Olivas called out, through the open driver side window of his truck, that the dog was scratching his truck.

Officer Jones responded, 'stay inside your vehicle and keep your mouth shut.' Moments later, Officer Jones opened the driver's door of Mr. Olivas' truck, grabbed Mr. Olivas, and pulled him out of the truck.... Officer Jones then slammed Mr. Olivas into the side of the truck, threw him to the ground face down, and dropped his knee onto the side of Mr. Olivas' face.

Mr. Olivas screamed in pain and asked Officer Jones to stop the attack. Mr. Olivas also stated that he was a retired peace officer and repeatedly said, 'I am not resisting.' Ignoring these statements, Officer Jones nonsensically said, 'do not resist,' and then handcuffed Mr. Olivas.

Other CBP officers then grabbed Mr. Olivas, though he had not been, and was not, resisting in any manner. In addition, the dog viciously growled at Mr. Olivas and had to be pulled away to prevent it from attacking him.

Mr. Olivas was then taken to an isolated area where he was frisked by CBP officers and detained for approximately one-half hour. He was then released with no explanation for the officers' conduct.

As a proximate result of the CBP officers' actions, Plaintiff Eloy Olivas suffered physical injuries, mental and emotional distress, loss of earnings, impairment of his future earning capacity, and a violation of his rights under the Fourth Amendment to the United States Constitution and Article I, section 1, of the California Constitution.

As a proximate result of the CBP officers' actions, Plaintiff Elvira Olivas has suffered from the loss of consortium of her husband, Eloy Olivas.

Id. ¶¶ 12-19. The First Amended Complaint alleges eleven causes of action: (1) false arrest/imprisonment, (2) battery, (3) negligence, (4) intentional infliction of emotional distress, (5) loss of consortium, (6) excessive force in violation of the Fourth Amendment to the United States Constitution, (7)-(9) three separate causes of action for unreasonable search and seizure in violation of the Fourth Amendment to the United States Constitution, (10) violation of California Civil Code §§ 43 and 52.1, and (11) conspiracy to violate Plaintiff Eloy Olivas' federal constitutional rights. The First Amended Complaint demands, as to all Defendants, compensatory damages, loss of earnings, medical expenses, costs of suit, and attorneys' fees. The First Amended Complaint demands, as to Defendants Officer Jones and Does 2-20, attorneys' fees and punitive damages.

On October 9, 2012, Defendants filed a Certification that "Defendant CBP Agent Charles Jones was acting within the scope of his employment as employee of the Customs and Border Protection with regard to the events described in Plaintiffs' Complaint." (ECF No. 21 at 1-2). On October 9, 2012, Defendants filed a Notice of Substitution of the United States for Defendant Jones with respect to the state law claims pled against him, i.e., the First through Fifth and Tenth Causes of Action. (ECF No. 22).

On December 4, 2012, Defendants filed the Motion to Dismiss Plaintiffs' First Amended Complaint and to Dismiss or Strike from Prayer for Relief Demand for Attorneys' Fees ("Motion to Dismiss"). (ECF No. 27). Defendants move the Court for an order (1) dismissing each individual Agent named in Plaintiffs' state law Causes of Action (i.e., Causes of Action One through Five and Ten) because the United States has been substituted pursuant to 28 U.S.C. § 2679(d)(1); (2) dismissing two of the four unreasonable search and seizure Causes of Action (i.e., Causes of Action Eight and Nine)*fn1 on the basis of qualified immunity; (3) dismissing the ...


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