United States District Court, S.D. California
ORDER REGARDING MOTION TO DISMISS AMENDED COMPLAINT
[DOC. NO. 15]
Cathy Ann Bencivengo United States District Judge.
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.
OF AMENDED COMPLAINT
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 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
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.
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.
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).
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).
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
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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.
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
Failure to state a claim.
argue that the first through fourth causes of action, brought
pursuant to Biven ...