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Capous v. Lopez

United States District Court, N.D. California

November 10, 2014

JOSEPHINE LOPEZ, et al., Defendants.


EDWARD M. CHEN, District Judge.

On July 31, 2010, this Court granted Plaintiff's request to proceed in forma pauperis, but dismissed Plaintiff's original complaint under 28 U.S.C. § 1915(e)(2) for failure to state a claim. The Court afforded Plaintiff leave to amend, however, to assert facts demonstrating that equitable tolling applied to prevent his suit from being barred by the statute of limitations. Plaintiff has since filed his amended complaint. For the following reasons, the Court DISMISSES, with prejudice, Plaintiff's action for failure to state a claim.


Like his original complaint, Plaintiff's first amended complaint is ambiguous as to facts underlying his dispute with Defendant. From what the Court can discern from Plaintiffs' amended complaint, sometime before 1990 Plaintiff owed the IRS "unpaid p/r income tax of approximately $18, 000." FAC at 2:14-15. Plaintiff appears to have told the IRS agents that he would pay the unpaid taxes from a "progress payment" he was due to receive for contracting work he did with the Veteran's Administration in Palo Alto, California. Id. at 2:15. However, Plaintiff alleges that the "sneaky [IRS] Officers" went to Defendant - who is alleged to be a "Government Contract Specialist, " and "seized the entire amount of approximately $150, 000.00 without following due process of law." Id. at 2:16-17. Plaintiff contends the IRS was required to notify him by registered or certified mail at least 60 days before levying the funds. Id.

Plaintiff's claims against Defendant revolve around his assertion that she was required to "ask questions the [sic] IRS Agents and receive proper answers and documents before allowing them to trespass on Plaintiff's property and seize the entire progress payment." Id. at 34:27. Attached to Plaintiff's amended complaint is a "Statement of Background Facts" which consists of Plaintiff's account of what happened following the alleged seizure of his progress payment. Plaintiff asserts that he was unable to pay subcontractors, requiring him to go heavily into debt to maintain his contracting business - including taking a mortgage on his home. See Docket No. 14, at 10. Eventually, Plaintiff lost his home in March 1990. Id. Plaintiff then describes the impact these occurrences had on his personal life with his family. Id. Plaintiff eventually moved to Costa Rica, where he stayed until around 1998. Id. at 7.

Plaintiff purports to advance 15 causes of action. Many of these, however, are not causes of action, but rather statements of damages or allegations of continuing impact of the tortious conduct. See, e.g., FAC, at 3 (cause of action 9: "The reckless breach of trust the Defendant committed is continual to this day because Plaintiff is derived from the exclusive right to use and enjoy his property. Until that property is returned to Plaintiff; the civic wrong committed; continues."). All of Plaintiff's causes of action sound in tort, with the possible exception of the first, which asserts "Breach of Contract with the invasion of a legally protected interest in the property of Plaintiff." Id.


Under 28 U.S.C. § 1915(e)(2), a court must dismiss any case in which a litigant seeks leave to proceed in forma pauperis if it determines that the action fails to state a claim on which relief may be granted. Id. § 1915(e)(2)(B)(ii).

Under Federal Rule of Civil Procedure 8, Plaintiff's complaint must include a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). While "a complaint need not contain detailed factual allegations... it must plead enough facts to state a claim to relief that is plausible on its face.'" Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.2009). "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, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "[N]aked assertions devoid of further factual enhancement" are insufficient to state a plausible claim for relief. Blantz v. Cal. Dep't of Corr. & Rehab, 727 F.3d 917, 926-27 (9th Cir. 2013). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than sheer possibility that a defendant acted unlawfully." Iqbal, 129 S.Ct. at 1949.

Plaintiff's amended complaint, like his original complaint, fails to state a claim on which relief can be granted. As described in this Court's prior order, Plaintiff seeks to recover from a government agent for injuries resulting from tortious conduct that occurred almost twenty-five years ago .[1] Under 28 U.S.C. § 2679:

The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages....

Id. § 2679(b)(1). Accordingly, it appears that Plaintiff's exclusive remedy against Ms. Lopez or the Department of Veterans Affairs is a tort claim against the United States pursuant to the provisions of the Federal Tort Claims Act ("FTCA"). See Saleh v. Bush, No. 13-cv-01124-JST, 2014 WL 2110231, at *2 (N.D. Cal. May 19, 2014) ("The Westfall Act confers immunity to federal employees by making an FTCA action against the Government the exclusive remedy for torts committed by Government employees in the scope of their employment.'" (quoting United States v. Smith, 499 U.S. 160, 163 (1991)).

Tort actions against the government under the FTCA, in turn, "shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing... of notice of final denial of the claim." 28 U.S.C. § 2401(b). Further, an FTCA cause of action accrues "when a plaintiff knows or has reason to know of the injury which is the basis of his action.'" Hensley v. United States, 531 F.3d 1052, 1056 (9th Cir. 2008) (quoting Dyniewicz v. United States, 742 F.2d 484, 487 (9th Cir. 1984)). This action was filed well beyond the two-year statute of limitations.

As this Court noted in its prior order, the FTCA's two-year statute of limitations may, in certain circumstances, be equitably tolled, at least until the Supreme Court rules otherwise. See, e.g., Gallardo v. United States, ___ F.3d ___, 2014 WL 2462804, at *5 (9th Cir. June 3, 2014). "[L]ong-settled equitable-tolling principles' instruct that [g]enerally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary ...

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