United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS RE:
DKT. NO. 24
J. Davila United States District Judge
April 2016, Plaintiff was allegedly assaulted at the Robert
F. Peckham Federal Building in San Jose, California.
Defendants argue that, to the extent this allegation is true,
they are improper defendants because the Federal Tort Claims
Act (“FTCA”) bars Plaintiff from pursuing the
asserted causes of action against the United States. The
Court finds this motion suitable for consideration without
oral argument. See N.D. Cal. Civ. L.R. 7-1(b).
Having considered the Parties' papers, the Court
GRANTS Defendants' motion to dismiss.
April 12, 2016, Plaintiff arrived at the Robert F. Peckham
Federal Building (“Federal Building”) around
10:30 a.m. for an appointment at the Social Security
Administration (“SSA”) Office. First Amended
Complaint (“Compl.”) ¶ 25, Dkt. 14. Upon
arrival, Plaintiff went through a security scan without
incident. Id. ¶ 26. After Plaintiff's
appointment, when he was attempting to leave, he accidentally
activated an alarm upon leaving the building through an
emergency exit door. Id. ¶¶ 29-30. A
security guard approached Plaintiff and signaled for him to
wait. Id. ¶ 31. This guard was Paragon employee
Mario Ayala (“Ayala”). Id. Ayala took
Plaintiff to the lobby area and asked for Plaintiff's
identification. Id. ¶ 32. Plaintiff complied
and handed Ayala his California Driver's License.
was seated in the lobby area. Id. ¶ 34. Ayala
gave Plaintiff's license to guard Jose Leuterio
(“Leuterio”). A period of time passed; Plaintiff
was waiting for at least 30 minutes. Id.
¶¶ 38-40. Plaintiff approached Ayala and asked what
the delay was and why he was being held. Id. ¶
40. Ayala told Plaintiff to continue waiting. Id.
Plaintiff asked Ayala if he could speak to Ayala's
supervisor, but Ayala told Plaintiff his supervisor was not
present. Id. ¶ 41. Plaintiff asked for the
supervisor's phone number. Id. Ayala dictated
the number to Plaintiff, who had taken his cell phone out to
type the number. Id. ¶ 42. During this
interaction, another guard, Joseph Vegas
(“Vegas”), approached Plaintiff from behind
yelling, “You can't use your phone in here!”
Id. ¶ 43. Vegas yelled, “Do you want me
to arrest you?” and Plaintiff responded, “Arrest
me for what?” Id. Without warning, Vegas
twisted and pinned Plaintiff's right arm behind his back;
Leuterio rushed to Plaintiff's right side and began
yelling, “Comply” and “He is not
complying.” Id. ¶ 44. Vegas handcuffed
Plaintiff's right wrist. Id. ¶ 47. Vegas
and Leuterio then slammed Plaintiff's left-side body,
face-first, into a nearby wall, causing a laceration and
abrasions to his left-side body. Id. ¶ 46.
Because Plaintiff's right wrist was pinned by Vegas, he
could not use his hands to soften the blow, which caused a
cut on the left side of his head. Id. ¶ 47.
Plaintiff was next slammed to the floor; his right-side body
contacted the floor first, and then the guards turned him
face down. Id. Plaintiff was then handcuffed.
Id. He was bloody, bruised and disoriented.
Id. ¶ 48. Plaintiff alleges that he made no
movements during this time; he neither physically nor
verbally threatened or resisted the officers. Id.
¶¶ 45, 47.
Paragon guards called the San Jose Police Department
(“SJPD”) through the Federal Protective
Service's (“FPS”) Denver Megacenter.
Id. ¶ 52. Vegas then tightened the handcuffs
such that they caused laceration and bruising to
Plaintiff's wrists. Id. ¶ 53.
Relationship Between FPS and Paragon
federal buildings, a Facility Security Committee
(“FSC”), composed of representatives of all
federal tenants of the building, decides what security
countermeasures to implement based on their budgetary
constraints and agency priorities. Declaration of Roger
Scharmen (“Scharmen Decl.”) ¶ 11, Dkt. 26.
To aid in these decisions, the FPS provides an assessment of
local conditions and security needs, but this recommendation
is not binding on the FSC. Id. ¶¶ 11, 16.
Contract security guards are typically one of the security
countermeasures requested by the FSC. Id. ¶ 11.
April 2016, Paragon Systems Inc. (Paragon) provided security
screening at the Federal Building. Id. ¶ 6.
Paragon is a private corporation. Id. Under the
contract between Paragon and FPS, Paragon provided security
services and maintained the day-to-day security at the
facility, i.e. security and screening. Declaration
of Kelly Minturn (“Minturn Decl.”) ¶ 6, Dkt.
25. FPS provided oversight of the security contract but did
not oversee Paragon employee's day-to-day activities or
control the physical performance of the contract.
Id. The security guards, or Protective Security
Officers (“PSOs”),  are Paragon employees-FPS has no
human resources or personnel department to manage PSOs.
Id. ¶ 7. Paragon is responsible for most of the
training of PSOs, including their certification in lethal and
nonlethal weapons, response procedures, and the use of force.
Id. ¶¶ 8-9. Pursuant to the FPS-Paragon
Contract, Paragon provides all management, supervision,
equipment, and certifications for PSOs. Id. ¶
advertises PSO positions and interviews and evaluates
candidates. Scharmen Decl. ¶ 10. FPS performs federal
background checks for candidates and makes a suitability
determination based on information disclosed in that
background investigation. Id. While Paragon does
most of the training, FPS does administer a written
examination of PSOs, which they must pass in order to begin
work. Scharmen Decl. ¶ 17. Paragon, however, has
latitude in working with the contractor to respond to trends
or deficiencies shown by the test data. Id. FPS
officers perform period checks of security posts to ensure
compliance with the contract. Id. ¶ 15. FPS
Directives establish a minimum yearly number of compliance
checks, but FPS Officers have discretion to increase them in
response to local conditions and the FPS regional director
can alter the minimum monitoring standard where circumstances
permit. Id. PSOs are not federal law enforcement
officers, they are not empowered by law to make arrests,
searches, or seizures. Minturn Decl. ¶ 13. They can
perform administrative inspections and detain violent or
disruptive persons, but their authority to detain is based on
their state's citizen's arrest authority.
Id. When PSOs discover a prohibited item or believe
a person may have committed a federal crime, they contact
either FPS or local law enforcement and hold the person until
a law enforcement officer arrives to make a constitutional
search and seizure. Id.
filed his initial complaint on February 20, 2019. Complaint
for Damages against United State of America, Dkt. 1. On May
9, 2019, he filed his first amended complaint. First Amended
Complaint (“FAC”), Dkt. 14. In this amended
complaint, Plaintiff asserts five causes of action: (1)
negligence and premises liability, (2) negligent hiring,
training, and supervision by Defendants, (3) assault and
battery, (4) false imprisonment and false arrest, and (5)
negligent infliction of emotional distress. FAC ¶¶
66-94. Defendants filed a motion to dismiss on July 12,
2019. Motion to Dismiss (“Mot.”),
Dkt. 24. Plaintiff filed an opposition on July 26, 2019.
Opposition re Motion to Dismiss (“Opp.”), Dkt.
30. On August 2, 2019, Defendants filed a reply. Reply re
Motion to Dismiss (“Reply”), Dkt. 32.
Rule 12(b)(1) Motion
question of whether the United States has waived its
sovereign immunity is one of subject matter jurisdiction and
should be considered under a Rule 12(b)(1) standard. See,
e.g., McCarthy v. United States, 850 F.2d 558,
560 (9th Cir. 1988) (holding Rule 12(b)(1) motion is proper
mechanism for motion to dismiss FTCA claim); Nevin v.
United States, 696 F.2d 1229, 1231 (9th Cir. 1983)
(concluding that whether discretionary function exemption
applies under FTCA is a question of subject-matter
Rule of Civil Procedure 12(b)(1) allows a Defendant to attack
a complaint for lack of subject matter jurisdiction. A
defendant may either challenge jurisdiction
“facially” by arguing the complaint “on its
face” lacks jurisdiction or “factually” by
presenting extrinsic evidence (affidavits, etc.)
demonstrating the lack of jurisdiction on the facts of the
case. Wolfe v. Strankman, 392 F.3d 358, 362 (9th
Cir. 2004); Safe Air for Everyone v. Meyer, 373 F.3d
1035, 1039 (9th Cir. 2004). In resolving a factual attack,
the district court may review evidence beyond the complaint
without converting the motion to dismiss into one for summary
judgment. Safe Air, 373 F.3d at 1039; White v.
Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). No presumptive
truthfulness attaches to the plaintiff's allegations and
the existence of disputed material facts will not preclude
the trial court from evaluating the merits of jurisdictional
claims. Gregory Vill. Partners, L.P. v. Chevron U.S.A.,
Inc., 805 F.Supp.2d 888, 895 (N.D. Cal. 2011). Once the
defendant presents extrinsic evidence, the plaintiff, who
bears the burden of proving jurisdiction exists, must
establish jurisdiction with evidence from other sources.
Id.; see also Savage v. Glendale Union High
Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003).
Federal Tort Claims Act (FTCA)
United States is immune from suit unless it consents to be
sued. Edison v. U.S., 822 F.3d 510, 517 (9th Cir.
2016) (citing Feres v. United States, 340 U.S. 135,
139 (1950)). The FTCA “waives the sovereign immunity of
the United States for actions in tort” and “vests
the federal district courts with exclusive jurisdiction over
suits arising from the negligence of Government
employees.” Valadez-Lopez v. Chertoff, 656
F.3d 581, 855 (9th Cir. 2011). This is a limited waiver of
sovereign immunity; the United States is only liable
“to the same extent as a private party for certain
torts of federal employees . . . in accordance with the law
of the place where the act or omission occurred.”
Edison, 822 F.3d at 517 (quotation marks and
citation omitted); see also 28 U.S.C. §
FTCA's Independent Contractor Exception.
limited waiver of sovereign immunity explicitly excludes
“any contractor with the United States” from its
definition of “[e]mployee of the government.” 28
U.S.C. § 2671. This is known as the independent
contractor exception to the FTCA and protects the United
States from vicarious liability for the negligent acts of its
independent contractors. Edison, 822 F.3d at 517-18.
“Since the United States can be sued only to the extent
that it has waived its immunity, due regard must be given to
the exceptions, including the independent contractor
exception, to such waiver.” United States v.
Orleans, 425 U.S. 807, 814 (1976). Whether the United
States has declined to exercise day-to-day control over the
operations of its contractor is not the end of the
analysis-the independent contractor exception has no bearing
on the United States' FTCA liability for its own
acts or omissions. Edison, 822 F.3d at 518. The
United States may be liable if a plaintiff has sufficiently
alleged a nondelegable or undelegated duty, which the United
States is directly liable for breaching. Id.