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Nino v. United States

United States District Court, S.D. California

March 13, 2014

MAYRA PAREDES NINO, Individually and as Wife of Decedent Jose Alfredo Yanez Reyes; J.A.Y.P; J.R.Y.P., Minors by MAYRA PAREDES NINO, their Guardian ad Litem, Plaintiffs,
v.
UNITED STATES OF AMERICA, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES CUSTOMS AND BORDER PROTECTION, UNITED STATES BORDER PATROL, JANET NAPOLITANO, THOMAS S. WINKOWSKI, DAVID AQUILAR, ALAN BERSIN, KEVIN K. McALLEENAN, MICHAEL J. FISHER, PAUL A. BEESON, RICHARD BARLOW, RODNEY S. SCOTT, CHAD MICHAEL NELSON, and DORIAN DIAZ and DOES 1 through 25, inclusive, Defendants.

ORDER

WILLIAM Q. HAYES, District Judge.

The matter before the Court is the Motion to Dismiss For Failure to State a Claim filed by Defendants United States of America, United States Department of Homeland Security, United States Customs and Border Protection, United States Border Patrol, and individually named Defendants in their official capacity ("United States"). (ECF No. 27).

I. Background

On February 27, 2013, Plaintiffs initiated this action by filing the Complaint. (ECF No. 1). On August 26, 2013, the United States filed a Motion to Dismiss the original Complaint. (ECF No. 9). On September 25, 2013, Plaintiffs filed an opposition. (ECF No. 11). On September 26, 2013, the parties filed a Joint Motion to Amend Plaintiffs' Complaint. (ECF No. 13). On September 27, 2013, the Court granted leave to amend, and denied United States' Motion to Dismiss as moot. (ECF No. 14).

On October 4, 2013, Plaintiffs Mayra Paredes Nino, individually and as wife of Decedent Jose Alfredo Yanez Reyes, and J.A.Y.P., J.R.Y.P., minors by Mayra Paredes Nino, their Guardian ad Litem, filed the First Amended Complaint. (ECF No. 17). The First Amended Complaint alleges eight claims for relief against Defendants the United States of America, United States Department of Homeland Security, United States Customs and Border Protection, United States Border Patrol, Janet Napolitano, Thomas S. Winkowski, David Aquilar, Alan Bersin, Kevin K. McAlleenan, Michael J. Fisher, Paul A. Beeson, Richard Barlow, Rodney S. Scott, Chad Michael Nelson, Dorian Diaz, and Does 1 through 25, inclusive. Id. Plaintiffs' first claim for relief is for a "Violation of the Law of Nations" against the United States, the United States Department of Homeland Security, United States Customs and Border Protection, and United States Border Patrol ("United States and Federal Defendant Agencies"), under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350. Id. ¶¶ 4-7, 24, 91-106. Plaintiffs' second claim for relief alleges a Fifth Amendment Due Process violation against the United States and Federal Defendant Agencies, as well as Defendants Napolitano, Winkowski, Aquilar, Bersin, McAlleenan, Fisher, Beeson, Barlow, and Scott ("Federal Employee Defendants"). Id. ¶¶ 107-115. Plaintiffs' third claim for relief alleges a Fifth Amendment Due Process violation against Defendants Nelson and Diaz. Id. ¶¶ 116-123. Plaintiffs' fourth claim for relief alleges a Fourth Amendment unreasonable seizure against the United States and Federal Defendant Agencies, as well as Federal Employee Defendants. Id. ¶¶ 124-130. Plaintiffs' fifth claim for relief alleges a Fourth Amendment unreasonable seizure against Defendants Nelson and Diaz. Id. ¶¶ 131-138. Plaintiffs' sixth claim for relief alleges a Fifth Amendment Equal Protection violation against the United States and Federal Defendant Agencies, as well as Federal Employee Defendants. Id. ¶¶ 139-145. Plaintiffs' seventh claim for relief alleges a Fifth Amendment Equal Protection violation against Defendants Nelson and Diaz. Id. ¶¶ 146-151. Plaintiffs' second, third, fourth, fifth, sixth, and seventh claims for relief are made pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (" Bivens claims"). (ECF No. 17 ¶ 23). Plaintiffs' eighth claim for relief seeks declaratory and injunctive relief against Federal Employee Defendants and Defendants Nelson and Diaz. Id. ¶¶ 152-158.

On November 15, 2013, the United States filed a Motion to Dismiss for Failure to State a Claim and Lack of Jurisdiction Over Subject Matter pursuant to Rules 12(b)(6) and 12(b)(1) of the Federal Rules of Civil Procedure. (ECF No. 27). The Motion to Dismiss was "brought by the United States, the named federal agencies, and the employees sued in their official capacity only, and has not been filed on behalf of the unserved, individual defendants sued in their individual capacities." (ECF No. 30 at 3). On December 11, 2013, Plaintiffs filed a response in opposition to the Motion to Dismiss, and requested leave to amend the First Amended Complaint. (ECF No. 28). On December 19, 2013, the United States filed a reply. (ECF No. 30).

A. Allegations of the First Amended Complaint

At dusk on June 21, 2011, Jose Alfredo Yanez Reyes ("Yanez"), and Jose Ibarra-Murrieta ("Murrieta"), crossed the border from Mexico to the United States together. (ECF No. 17 ¶ 27). Yanez and Murrieta entered the United States through a hole in the primary border fence abutting Mexico, and "emerged into a dried-out concrete culvert between the primary border fence (the corrugated solid metal fence closest to Mexico) and the secondary border fence (the high-tech chain link fence closest to the United States). The culvert runs north from the primary fence to Stuart's Bridge, which abuts the secondary fence." Id.

Murrieta led the pair and traversed the length of the culvert and climbed out at Stuart's Bridge. Id. ¶ 28. Murrieta encountered Agent Chad Michael Nelson ("Agent Nelson") at Stuart's Bridge. Id. Murrieta descended back into the culvert "attempting to evade" Agent Nelson and Agent Dorian Diaz ("Agent Diaz"). Id. Yanez, who had stayed in the culvert, escaped back into Mexico through the hole in the primary border fence. Id. ¶ 32. Murrieta "evaded Agent Nelson and ran south toward the primary fence where Yanez had just escaped." Id. ¶ 33. Agent Nelson caught Murrieta in the culvert near the primary border fence. Id. Murrieta and Agent Nelson "grappl[ed] for a short time." Id. ¶ 34. Murrieta escaped Agent Nelson's hold and in attempting to evade Agent Nelson, Murrieta tripped and fell to the ground. Id. ¶¶ 34-35. When Murrieta stood up, Agent Nelson "grabbed him by the neck in an attempt to subdue him." Id. ¶ 35. "Murrieta and Agent Nelson began grappling again in the dirt road, and Agent Nelson swept Murrieta's legs and wrestled him to the ground. Agent Nelson then "admittedly began to strike" Murrieta while pinning him to the ground." Id. ¶ 36. Meanwhile, "Yanez climbed into a tree that leaned against the southern side of the primary fence near where Agent Nelson and Murrieta were grappling... Yanez was over United States Territory as he was peering over the fence to observe those events." Id. ¶ 37. "The Agents assert that during Nelson's struggle with Murrieta, Yanez threw two rocks (per Agent Nelson) or one or possibly two rocks (per Agent Diaz) at Agent Nelson." Id. ¶ 38. Agents Nelson and Diaz "assert that while Agent Nelson and Murrieta struggled on the ground, Yanez threw a nail-studded board that struck Agent Nelson in the head, glancing off his hat." Id. ¶ 39. "According to Agent Nelson, at about the time that Yanez allegedly threw the board, Diaz arrived to help subdue Murietta. Agent Diaz allegedly told Yanez to get off the fence, and then began helping Agent Nelson get control of Murietta." Id. ¶ 40.

Agent Nelson acknowledges that then, without any warning and any further alleged throwing of a rock or a board by Yanez, Agent Nelson pulled away from the scuffle with Murrieta. Agent Diaz removed his sidearm from its holster, uttered not a single additional word, and shot Yanez in the head... Yanez fell out of the tree, dead or dying, on the southern side of the primary fence, but at any event... always within United States Territory.

Id. ¶ 41.

Murrieta's account "differs markedly from those of the Agents." Id. ¶ 45.
Murrieta asserts that Yanez never through [sic] anything at Nelson or anyone else. Indeed, the shape and height of the tree, the height of the primary border fence, and the distance of the tree and the fence from Agent Nelson made it impossible for Yanez (or any person) to throw rocks or wood at the agent with lethal force or accuracy.

Id. ¶ 46. Instead, "both Agent Nelson and Agent Diaz had Murrieta down on the ground and were beating him." Id. ¶ 47. In an effort to stop the attack "Yanez yelled that he was going to use his cellphone to take video and pictures of the beating." Id. ¶ 49. "Upon hearing Yanez's threat to record the Agents' attack on Murietta, Agent Diaz stopped ...


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