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Villarruel v. United States

United States District Court, S.D. California

June 26, 2017



          Hon. Cathy Ann Bencivengo United States District Judge.

         On February 13, 2017, Plaintiffs filed their Amended Complaint against the United States of America and two border patrol agents, Scott Garrett and D. Gamboa, and Does 1-25. [Doc. No. 13.] On February 27, 2017, The United States, Garrett and Gamboa (hereinafter “Defendants”) filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim. [Doc. No. 15.] On March 19, 2017, Plaintiffs filed a response. [Doc. No. 16.] On March 24, 2017, Defendants filed a reply. [Doc. No. 17.] For the reasons set forth below, the motion is GRANTED IN PART AND DENIED IN PART.


         The following are allegations as stated in the Amended Complaint:

On September 2, 2015, at about 3:00 p.m., the United States Border Patrol Agency [BPA], operating the Highway 86 checkpoint north of Westmorland, California, inspected a white Nissan pickup truck driven by Jose Villarruel with wife, Maria Villarruel, as passenger. Although the right to be and remain in the United States had been established, the BPA exceeded the permissible administrative purpose of inquiring into the immigration status of persons crossing the checkpoint and were engaged in general criminal investigation without reasonable suspicion or probable cause. [Amended Complaint for Damages, Doc. No. 13, ¶11.]
Border Patrol Agent Gamboa was present at said checkpoint for the express purpose of investigating general criminal activity, including unlawful controlled substance smuggling, thereby knowingly exceeding the permissible limited administrative purpose of checking the immigration status of persons stopped and detained. Id. at ¶12.
Agent Gamboa was responsible for training and handling of his canine. The canine was improperly trained; Agent Gamboa improperly handled and/or was improperly trained in the handling of said canine, resulting in false alerts for lawful substances, namely sugar and candy, being identified as unlawful controlled substances. Agent Gamboa knew, or should have known, that he could not rely on alerts from said canine to form a reasonable basis for detention, or probable cause for a search and seizure of Plaintiffs. Nevertheless, Agent Gamboa wrongfully proceeded to stop, detain, and search these motorists, namely said Plaintiffs, for the impermissible purpose of conducting general criminal investigation without reasonable suspicion or probable cause, and wrongfully used the false alert allegedly given by his canine to justify continued unlawful detention, search and seizure of Plaintiffs and their property, all in violation of clearly established law. As a result of these unlawful acts, Plaintiffs Jose and Maria Villarruel were taken to "secondary" inspection where their vehicle was searched, their lawful candy product was seized, along with Plaintiffs' vehicle and personal belongings, and said Plaintiffs were arrested, taken into custody and criminal charges filed against them. Id. at ¶12.
During the search of Plaintiffs' vehicle, BPA agents[1] found boxes containing packages which were clearly labeled and indicated a tamarind flavored candy brand "Jhonny dulces de tamarindo". "Jhonny dulces de tamarindo" is a brand owned, and sold by Jose Villarruel, Maria Villarruel, and Arturo Villarruel, and was at that time a successful business enterprise both in the United States and in Mexico. Id. at ¶13.
BPA agents allegedly performed a field test on said candy which they alleged resulted in a presumptive positive for methamphetamine. The combined weight was allegedly 930.1 pounds, or 421.9 kilograms. Id. at ¶14.
At the time of performing the field test, BPA agents were aware that test results were inherently unreliable and must be confirmed by laboratory testing as the field test frequently provides false positive results on substances which are neither methamphetamine or illegal. Further, on information and belief, BPA agents failed to take into consideration the color of dye in candy could cause them to misread a negative as a false positive with the field test. Id. at ¶15.
Jose Villarruel and Maria Villarruel were arrested and taken into custody by the BPA. The candy products and vehicle were seized. Id. at ¶16.
The BPA then proceeded, without performing any confirmatory testing, to disseminate information to the public including news media alleging a large scale seizure of methamphetamine, disseminating the names of Jose and Maria Villarruel, and the name of the said candy brand as being methamphetamine disguised as candy. Id. at ¶17.
On September 3, 2015, a criminal complaint, also available to the public was filed against Jose Villarruel Zendejas (this said Jose Villarruel) and Maria Villarruel charging each with violating Title 21, United States Code Section 841(a)(1), possession of a controlled substance with intent to distribute. The "Statement of Facts" attached to the complaint identified the substance that allegedly tested positive for methamphetamine as “Jhonny Dulces Mexican Candy”, the product owned and sold by Jose Villarruel, Maria Villarruel, and Arturo Villarruel. Id. at ¶18.
News media both in the United States and in Mexico published the information provided by Defendants to both the public and media in both the United States and Mexico, naming Plaintiffs Jose Villarruel and Maria Villarruel and stating that “Jhonny Dulces Mexican Candy” was methamphetamine-laced candy. Defendant Scott Garrett was also quoted when referring to said Plaintiffs: “Criminals continue to come up with creative ways to smuggle their narcotics and agents continue to do whatever it takes to stay one step ahead of them.” Id. at ¶19.
Subsequent laboratory testing was performed which confirmed that in truth and fact there was no methamphetamine or other unlawful substance present in Plaintiffs' vehicle or said candy, resulting in the criminal charges against Jose Villarruel, and Maria Villarruel being dismissed on September 4, 2015. Nevertheless, Defendants, and each of them failed and refused to retract their previously disseminated information and said false allegations continue to be randomly re-published. Id. at ¶20.
As a proximate result of the foregoing Plaintiffs Jose Villarruel and Maria Villarruel were deprived of their right to be free from unreasonable stop, detention, search and seizure, and were in fact detained and falsely imprisoned, their property was wrongfully seized and right of possession substantially interfered with. Id. at ¶21-26.

         Based on these allegations, Plaintiffs bring four claims under Bivens v. Six Unknown Federal Narcotics Agents (“Bivens”), 203 U.S. 388 (1971) for: (1) violation of the Fourth Amendment (for the unreasonable search and seizure of both Jose and Maria Villarruel and excessive force in the seizure of Jose Villarruel); (2) violation of the Fifth Amendment (for the deprivation of Jose, Maria and Arturo Villaruel's liberty and property without due process); (3) failure to properly train; and (4) failure to properly supervise and discipline. Plaintiffs also bring four claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §2671, against Defendant United States of America for: (5) intentional tort - violation of rights secured by the federal and state constitution; (6) intentional tort - false imprisonment; (7) invasion of privacy; and (8) negligence.


         A. Legal Standard.

         On a motion to dismiss pursuant to Rule 12(b)(1), the standard to be applied varies according to the nature of the jurisdictional challenge. A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of jurisdiction contained in the complaint as insufficient on their face to demonstrate the existence of jurisdiction (“facial attack”), or may be made as a “speaking motion” attacking the existence of subject matter jurisdiction in fact (“factual attack”). Thornhill Publishing Co. v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir.1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d. Cir.1977). If the motion constitutes a facial attack, the court must consider the factual allegations of the complaint to be true. Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.1981); Mortensen, 549 F.2d at 891. If the motion constitutes a factual attack, however, “no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Thornhill, 594 F.2d at 733 (quoting Mortensen, 549 F.2d at 889).

         In an action where the United States is named as a defendant, a court will have no subject matter jurisdiction unless a specific statute can be relied upon which waives the Government's sovereign immunity. United States v. Alabama, 313 U.S. 274, 61 S.Ct. 1011, 85 L.Ed. 1327 (1941); Soriano v. United States, 352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957). “Limitations and conditions upon which the government consents to be sued must be strictly observed and exceptions are not to be implied.” Soriano, 352 U.S. at 276, 77 S.Ct. at 273. See also United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969).

         Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint “fail[s] to state a claim upon which relief can be granted”- generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a)(2), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual allegations, ' . . . it [does] demand . . . more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the collective facts pled “allow . . . the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. There must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent with' a defendant's liability” fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). The Court need not accept as true “legal conclusions” contained in the complaint, id., or other “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences, ” Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).

         If the court grants a motion to dismiss a complaint, it must then decide whether to grant leave to amend. Under Rule 15(a), when there is no “[u]ndue delay, bad faith[, ] dilatory motive on the part of the movant, ... undue prejudice to the opposing party by virtue of ... the amendment, [or] futility of the amendment, ” leave to amend a complaint is to be “freely given.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Generally, leave to amend is denied only if it is clear that the deficiencies of the complaint cannot be cured by amendment. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir.1980).

         B. Analysis.

         1. Failure to state a claim.

         Defendants argue that the first through fourth causes of action, brought pursuant to Biven ...

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