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Nino v. United States

United States District Court, S.D. California

October 6, 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,
UNITED STATES OF AMERICA, and DOES 1 through 25, inclusive, Defendants.


WILLIAM Q. HAYES, District Judge.

The matter before the Court is the Motion to Dismiss For Failure to State a Claim filed by Defendant United States of America. (ECF No. 34).

I. Background

On February 27, 2013, Plaintiffs Mayra Paredes Nino, individually and as wife of Decedent Jose Alfredo Yanez Reyes, and JY and RY, minors by Mayra Paredes Nino, their Guardian ad Litem, initiated this action by filing the Complaint. (ECF No. 1). On August 26, 2013, Defendant United States of America ("United States") filed a motion to dismiss. (ECF No. 9-1). On September 26, 2013, with the motion to dismiss pending, Plaintiffs and the United States filed a joint motion to amend the Complaint. (ECF No. 13). On October 4, 2013, Plaintiffs filed the First Amended Complaint ("FAC"). (ECF No. 17). On November 15, 2013, Defendants United States, Department of Homeland Security ("DHS"), United States Customs and Border Protection ("CPB"), and United States Border Patrol ("Border Patrol") (collectively "Government Defendants") filed a motion to dismiss pursuant to Rules 12(b)(6) and 12(b)(1) of the Federal Rules of Civil Procedure. (ECF No. 27).

On March 13, 2014, the Court granted the Government Defendants' motion to dismiss. (ECF No. 32). The Court dismissed Plaintiffs' second, third, fourth, fifth, sixth, and seventh claims for relief-all brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (" Bivens claims")-to the extent they were brought against the Government Defendants or federal employee Defendants in their official capacities. Id. at 8-9. The Court found that these claims were barred by sovereign immunity because the FAC "fails to show an unequivocal waiver of immunity.'" Id. at 9 (citing Baker v. United States, 817 F.2d 560, 562 (9th Cir. 1987)). The Court also dismissed Plaintiffs' first claim for relief against the Government Defendants for violation of the law of nations on sovereign immunity grounds.

On April 14, 2014, Plaintiffs filed the Second Amended Complaint ("SAC"), which is the operative pleading. (ECF No. 33). The SAC names the United States, Agent Chad Michael Nelson ("Agent Nelson"), and Agent Dorian Diaz ("Agent Diaz") as Defendants and asserts the following claims for relief: (1) violation of the law of nations under the Alien Tort Statute ("ATS"); (2) wrongful death under the Federal Tort Claims Act ("FTCA") and California Code of Civil Procedure section 377.60-62; and (3) emotional distress under the FTCA and California Common Law. On April 28, 2014, the United States filed the Motion to Dismiss. (ECF No. 34). On May 12, 2014, Plaintiffs filed an opposition, along with the Declaration of Attorney Eric M. Welch. (ECF Nos. 35, 35-1). On May 20, 2014, the United States filed a reply. (ECF No. 36).

II. Allegations of the SAC

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. 33 at 4). 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. at 5. Murrieta encountered Agent Nelson at Stuart's Bridge. Id. "Murrieta leapt back into the culvert and began scaling a pole up the side of Stuart's Bridge." Id. Yanez, who had stayed in the culvert, escaped back into Mexico through the hole in the primary border fence. Murrieta "evaded Agent Nelson and ran south toward the primary fence where Yanez had just escaped." Id. Agent Nelson caught Murrieta in the culvert near the primary border fence. Murrieta and Agent Nelson "grappl[ed] for a short time." Id. Murrieta escaped Agent Nelson's hold and in attempting to evade Agent Nelson, Murrieta tripped and fell to the ground. "When Murrieta stood up, Agent Nelson grabbed him by the neck in an attempt to subdue him." Id. "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. "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. at 5-6.

From this point forward, the FAC recounts both the Agents' and Murrieta's versions of the events. "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. at 6. 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. "According to Agent Nelson, at about the time that Yanez allegedly threw the board, Diaz arrived to help subdue Murrieta. Agent Diaz allegedly told Yanez to get off the fence, and then began helping Agent Nelson get control of Murietta." Id.

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.


Murrieta's account "differs markedly from those of the Agents." Id. at 7.

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. "Instead, both Agent Nelson and Agent Diaz had Murrieta down on the ground and were beating him." Id. at 8. "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. at 8. "Upon hearing Yanez's threat to record the Agents' attack on Murietta, Agent Diaz stopped beating Murietta, stood up, and, without warning or provocation, shot Yanez in the head." Id.

The Agents' use of excessive, lethal force against Yanez did not spring from their spontaneous acts. Instead, they were acting pursuant to, and while implementing, a Rocking Policy that has the imprimatur of the highest-ranking DHS officials. Pursuant to this unlawful Rocking Policy, Border Patrol agents along the southern border regularly use excessive, lethal force against persons of perceived Hispanic descent and Mexican nationality.

Id. at 9. The United States knew or reasonably should have known that Border Patrol Agents had implemented the Rocking Policy, tacitly approved the Rocking Policy, defended the Rocking Policy, and failed to adequately train Border Patrol agents "concerning the proper use of force." Id. at 9-10, 19.

III. Contentions of the Parties

The Motion to Dismiss is brought by the United States. The United States moves to dismiss the SAC on the following grounds:

(1) Plaintiffs' First Claim for "Violation of the Law of Nations" has already been dismissed by this Court ...

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