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Rabieh v. United States

United States District Court, N.D. California, San Jose Division

November 6, 2019

UNITED STATES OF AMERICA, et al., Defendants.


          Edward J. Davila United States District Judge

         In 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.

         I. BACKGROUND

         A. Factual Background

         On 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. Id.

         Plaintiff 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.

         The 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.

         B. Relationship Between FPS and Paragon

         In many 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.

         In 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”), [1] 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. ¶ 8.

         Paragon 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.

         C. Procedural History

         Plaintiff 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.[2] FAC ¶¶ 66-94. Defendants filed a motion to dismiss on July 12, 2019.[3] 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.


         A. Rule 12(b)(1) Motion

         The 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 jurisdiction).

         Federal 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).

         B. Federal Tort Claims Act (FTCA)

         The 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. § 1346(b)(1).

         The FTCA's Independent Contractor Exception.

         The 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.

         Discretionary ...

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