Arellano, Jr. v. San Diego, County of

• Court: District Court, S.D. California
• Decided: September 14, 2023
• Docket: 3:14-cv-02404
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAUL ARELLANO, JR., Case No.: 3:14-cv-02404-JO-KSC

12 Plaintiff, ORDER GRANTING DEFENDANTS’ 13 v. MOTION TO DISMISS 14 COUNTY OF SAN DIEGO et al., 15 Defendants. 16 17 Plaintiff Raul Arellano, Jr. is a state prisoner incarcerated at Richard J. Donovan 18 Correctional Facility. Proceeding pro se and in forma pauperis (IFP), he filed a second 19 amended civil rights complaint alleging that federal marshals violated his constitutional 20 rights when they arrested him in Mexico. See Dkt. 62 (“SAC”). Defendant United States 21 filed a motion to dismiss the SAC. Dkt. 209. Because Plaintiff is proceeding IFP, the 22 Court also screens his amended complaint pursuant to 28 U.S.C. § 1915 in addition to 23 addressing the United States’ motion to dismiss. For the reasons explained below, the 24 Court grants the motion to dismiss and also dismisses the remaining claims in this case. 25 /// 26 /// 27 /// 28 /// 1 I. BACKGROUND 2 Plaintiff’s suit centers on his allegations that federal marshals used excessive force 3 when they arrested him in Mexico pursuant to a warrant. On January 4, 2010, the San 4 Diego County Superior Court in El Cajon issued a warrant for Plaintiff’s arrest after he 5 failed to appear for a court hearing. Dkt. 62 (“SAC”) at 8. U.S. Marshal P. Beal organized 6 an operation to capture Plaintiff while he was in Mexico. Id. at 13. On November 7, 2010, 7 U.S. Marshal Jesus Guerrero and Mexican state agents from the Policia Estatal Preventiva 8 (“PEP”) located and arrested Plaintiff inside a hotel lobby in Tijuana, Mexico. Dkt. 62 9 (“Arrest Report”) at 1. Plaintiff resisted arrest but was eventually taken into custody. Id. 10 Plaintiff alleges that officials threatened and attacked him both during and after his 11 arrest. Marshal Guerrero kicked a handcuffed Plaintiff in the ribs and told him “[this] is 12 Mexico and [I] can do what [I] want because no policy prevents [me from doing so].” SAC 13 at 8. Guerrero further threatened Plaintiff by informing him that the Mexican agents are 14 “going to make sure you understand why [you are] better off not saying [anything] when 15 you get transferred to San Diego County Jail.” Id. at 8–9. After Plaintiff’s arrest, the 16 Mexican PEP agents escorted Plaintiff into a vehicle where they tortured him for two hours. 17 Id. at 9. When Plaintiff arrived at an immigration facility in Mexicali, PEP agents 18 continued to torture him. Id. at 9–10; Arrest Report at 1. On November 10, 2010, PEP 19 agents deported Plaintiff to the United States where Guerrero transported Plaintiff to the 20 San Diego County Central Jail (“Central Jail”). SAC at 11; Arrest Report at 2. 21 Based on the above facts, Plaintiff filed suit against (1) the County of San Diego; (2) 22 the City of San Diego; (3) the City of El Cajon; (4) Guerrero Bail Bonds; (5) bondsman 23 Henry L. Guerrero; (6) the San Diego Regional Fugitive Task Force; (7) the United States 24 Marshal’s Office; (8) U.S. Marshal Jesus Guerrero; (9) U.S. Marshal P. Beal; and (10) the 25 United States for violating his constitutional rights during his arrest and detention in 26 27 28 1 Mexico. After a series of Court orders, the only defendants currently remaining in this 2 action are U.S. Marshals Guerrero and Beal and the United States. See Dkts. 58, 87, 181. 3 Against Guerrero, Plaintiff alleges claims for violation of 42 U.S.C. §§ 1985(3) and 1986; 4 and a Bivens claim for use of excessive force in violation of the Fourth Amendment. 5 Against Beal, Plaintiff alleges a claim for violation of 42 U.S.C. § 1983. Against the United 6 States, Plaintiff alleges various tort claims of (1) negligence; (2) assault; (3) battery; (4) 7 false imprisonment; and (5) intentional infliction of emotional distress. 8 Defendant United States filed a motion to dismiss for lack of jurisdiction because 9 Plaintiff failed to exhaust his tort claims against the government. It argues Plaintiff did not 10 present these tort claims against the United States to the appropriate federal agency prior 11 to filing this suit. SAC at 3; Dkt. 209-1 (“Kim Decl.”) at ¶¶ 3–6. 12 II. LEGAL STANDARD 13 A party may challenge a complaint under Federal Rule of Civil Procedure 12(b)(1) 14 for lack of subject matter jurisdiction. “Federal courts are courts of limited jurisdiction 15 [and] possess only that power authorized by Constitution and statute.” Kokkonen v. 16 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Pursuant to Rule 12(b)(1), a 17 party may seek dismissal of an action for lack of subject matter jurisdiction by asserting a 18 facial challenge or a factual challenge. Fed. R. Civ. P. 12(b)(1); Warren v. Fox Family 19 Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). In a facial challenge, the court limits 20 its inquiry to the allegations set forth in the complaint and considers the complaint’s 21 allegations to be true and draws all reasonable inferences in the plaintiff’s favor. Safe Air 22 for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004); Doe v. Holy, 557 F.3d 1066, 23 1073 (9th Cir. 2009). Where the moving party asserts a factual challenge, based on the 24 legal sufficiency of the jurisdictional facts, the court may review any evidence necessary, 25 26 27 1 The case was originally filed on October 8, 2014 and assigned to District Court Judge Janis L. Sammartino and transferred to District Court Judge Gonzalo P. Curiel on February 3, 2020 and 28 1 such as affidavits and testimony, in order to determine whether subject matter jurisdiction 2 exists. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). The plaintiff has the 3 burden of showing that the court has subject matter jurisdiction over the action. Ass’n of 4 Am. Med. Colleges v. United States, 217 F.3d 770, 778–79 (9th Cir. 2000). 5 Also, because Plaintiff was granted leave to proceed IFP, his second amended 6 complaint must undergo a sua sponte screening for dismissal. Pursuant to 28 U.S.C. § 7 1915(e)(2)(B), the Court must screen a prisoner’s IFP complaint and sua sponte dismiss it 8 to the extent it is frivolous, malicious, fails to state a claim upon which relief may be 9 granted, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 10 1122, 1126–27 (9th Cir. 2000) (en banc); see also Rhodes v. Robinson, 621 F.3d 1002, 11 1004 (9th Cir. 2010) (same with respect to 28 U.S.C. § 1915A(a) & (b)(1)). “The standard 12 for determining whether a plaintiff has failed to state a claim upon which relief can be 13 granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 14 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th 15 Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (“Failure to 16 state a claim under § 1915A incorporates the familiar standard applied in the context of 17 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 12(b)(6) 18 requires that a complaint “contain sufficient factual matter . . . to state a claim to relief that 19 is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation 20 marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content 21 that allows the court to draw the reasonable inference that the defendant is liable for the 22 misconduct alleged.” Id. While detailed factual allegations are not required, “[t]hreadbare 23 recitals of the elements of a cause of action, supported by mere conclusory statements, do 24 not suffice” to state a claim. Id. at 678. 25 III. DISCUSSION 26 The Court first examines Defendant United States’ motion to dismiss on grounds 27 that Plaintiff failed to exhaust his tort claims against the government. Next, the Court will 28 1 screen Plaintiff’s remaining Bivens, §§ 1983, 1985(3), and 1986 claims against Defendants 2 Beal and Guerreo to determine whether they state a legally valid claim for relief. 3 A. Exhaustion of Tort Claims Against the United States 4 Defendant United States argues that Plaintiff’s tort claims against it are barred 5 because he failed to properly exhaust them prior to filing suit. The Federal Tort Claims 6 Act (“FTCA”) is the exclusive remedy for tortious conduct by the United States and its 7 employees. F.D.I.C. v. Craft, 157 F.3d 697, 706 (9th Cir. 1998); see also Kennedy v. U.S. 8 Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998). The FTCA waives the United States’ 9 traditional sovereign immunity to allow suit for torts committed by its employees. 28 10 U.S.C. §§ 1346(b), 2674. Before a plaintiff can file a claim against the United States under 11 the FTCA in federal court, the plaintiff must first present the claim to the appropriate 12 federal agency and be denied by the agency. 28 U.S.C. § 2675(a). A tort claim against the 13 United States is barred unless it is presented in writing to the appropriate federal agency 14 within two years after the claim accrues. 28 U.S.C. § 2401(b). The FTCA’s exhaustion 15 requirement is “jurisdictional in nature”; thus, a federal district court cannot adjudicate 16 FTCA claims until the final denial of plaintiff’s administrative remedies by the appropriate 17 federal agency. Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006); McNeil 18 v. United States, 508 U.S. 106, 111 (1993). 19 Here, the Court finds that Plaintiff has not met his exhaustion requirements under 20 the FTCA because he failed to present his tort claims to the appropriate agency prior to 21 filing suit. In his second amended complaint, Plaintiff appears to assert that he exhausted 22 his claims with respect to marshals Beal and Guerrero: in response to the question “Have 23 you previously sought and exhausted all forms of available relief from the proper 24 administrative officials?” on the form complaint, he responds, “I don’t need to file; except 25 for the one for U.S. marshals which I have.” SAC at 3. He does not, however, identify the 26 agency to which he submitted his claims. Id. Nor does he inform the Court when he filed 27 these claims with a federal agency and when the agency denied these claims. See also 28 Harris v. United States, 2019 WL 7834813, at *7–8 (C.D. Cal. Nov. 1, 2019), report and 1 recommendation adopted, 2020 WL 402126 (C.D. Cal. Jan. 24, 2020) (explaining that 2 vague and unsubstantiated claims of exhaustion are insufficient). He also fails to provide 3 any documentation showing that he filed an administrative complaint pertaining to his state 4 law claims. Ahlin v. Soc. Sec. Off., 2007 WL 1302427, at *3 (E.D. Cal. May 3, 2007) 5 (dismissing complaint when plaintiff fails to show that she filed an administrative 6 complaint pursuant to the FTCA). Countering Plaintiff’s unsubstantiated claim of 7 exhaustion, Defendant United States submitted a declaration from the U.S. Marshals 8 Service stating that the agency conducted a search of its database and did not find any 9 administrative claims filed by Plaintiff. Kim Decl. at ¶¶ 3–6; see, e.g., Plante v. United 10 States, 2009 WL 2045692, at *2 (S.D. Cal. July 8, 2009) (considering declaration from 11 Department of Health and Human Services on a 12(b)(1) motion to dismiss to determine if 12 plaintiff complied with the FTCA exhaustion requirement); Alvarez v. United States, 2017 13 WL 3723926, at *2 (S.D. Cal. Jan. 17, 2017) (same). Based on the above, the Court finds 14 that Plaintiff has not met his burden of establishing that he has exhausted his tort claims 15 prior to filing suit. Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980). The Court, 16 therefore, GRANTS the United States’ motion to dismiss Plaintiff’s tort claims against it— 17 his claims for negligence, assault, battery, false imprisonment, and intentional infliction of 18 emotional distress—for lack of jurisdiction. 19 The Court dismisses these claims with prejudice because further amendment would 20 be futile. The Court finds that Plaintiff has failed to exhaust his claims to date, and Plaintiff 21 could not now seek to exhaust his claims because the deadline for presenting these claims 22 to the appropriate agency—two years after their occurrence—has passed. See, e.g., Tsu v. 23 Tracy Fed. Bank, 1998 WL 118190, at *1 (N.D. Cal. Feb. 27, 1998), aff'd, 172 F.3d 59 24 (9th Cir. 1999) (dismissing with prejudice FTCA claims when plaintiff failed to file an 25 administrative claim within the two-year limitations period); Greene v. Segal, 2008 WL 26 11336820, at *3 (C.D. Cal. June 12, 2008) (same). 27 B. § 1983 Claim 28 1 The Court now turns to screening the remainder of Plaintiff’s complaint pursuant to 2 28 U.S.C. § 1915, starting with his § 1983 claim against federal officer Beal. To state a 3 claim for relief under § 1983, a plaintiff must plead that the defendant (1) acted under color 4 of state law and (2) deprived him of a right secured by the Constitution. Johnson v. 5 Knowles, 113 F.3d 1114, 1117 (9th Cir. 1997). A person acts under color of state law if 6 the person “exercise[s] power possessed by virtue of state law and made possible only 7 because the wrongdoer is clothed with the authority of state law.” West v. Atkins, 487 U.S. 8 42, 49 (1988) (quotations omitted). Because federal agents act pursuant to federal law, not 9 state law, § 1983 precludes liability for federal agents. Morse v. N. Coast Opportunities, 10 Inc., 118 F.3d 1338, 1343 (9th Cir. 1997). Here, Plaintiff fails to state a § 1983 claim 11 against Beal because the statute does not authorize a cause of action against federal agents. 12 See id. (“[Plaintiff’s] complaint is invalid on its face in its reliance upon § 1983 as a cause 13 of action against alleged federal government actors.”). Accordingly, the Court dismisses 14 Plaintiff’s § 1983 claim with prejudice. Id. Further amendment would be futile because § 15 1983 precludes liability for federal government actors; any such claims against these 16 federal actors are invalid on their face. Id. 17 C. Bivens Claim 18 In screening Plaintiff’s complaint, the Court next turns to examining whether 19 Plaintiff alleged a legally cognizable Bivens claim. A plaintiff may bring constitutional 20 violation claims against federal actors pursuant to Bivens v. Six Unknown Named Agents 21 of the Fed. Bur. of Narcotics, 403 U.S. 388 (1971). Such claims are considered the “federal 22 analogue” to § 1983 claims against state actors. Hartman v. Moore, 547 U.S. 250, 254, 23 255 n.2 (2006). In Bivens, the Supreme Court inferred a cause of action for damages 24 against agents from the Federal Bureau of Narcotics for an unreasonable search and seizure 25 in violation of the Fourth Amendment even though no federal statute authorized such a 26 claim. Bivens, 403 U.S. at 395–97. Since then, the Supreme Court has recognized an 27 implied cause of action under the Constitution (“Bivens claim”) in two other contexts: (1) 28 a Fifth Amendment due process claim by a former congressional staffer for sex 1 discrimination; and (2) an Eighth Amendment claim for cruel and unusual punishment 2 against federal jailers for failing to treat a prisoner's severe asthma. Davis v. Passman, 442 3 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980). These three cases—Bivens, Davis, 4 and Carlson—are the only cases in which the Supreme Court has approved of an implied 5 damages remedy under the Constitution. Ziglar v. Abbasi, 582 U.S. 120, 131 (2017). 6 Outside of these three Supreme Court-approved contexts, courts must go through the 7 following two steps before allowing a plaintiff to proceed with a cause of action under 8 Bivens: (1) determine whether the case presents a “new Bivens context” different from the 9 three cases in which the Supreme Court implied a damages action; and (2) if the case 10 presents a new Bivens context, ask if there are “special factors” indicating that the judiciary 11 may be less equipped than Congress to “weigh the costs and benefits of allowing a damages 12 action to proceed.” Pettibone v. Russell, 59 F.4th 449, 454–55 (9th Cir. 2023) (citing 13 Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022)). If the case presents a new Bivens context 14 and the court finds at least one “special factor,” the court cannot infer a private right of 15 action. Pettibone, 59 F.4th at 455. The Court addresses each step below. 16 1. A New Bivens Context 17 The Court first examines whether Plaintiff’s claims that federal officers used 18 excessive force against him present a “new Bivens context.” A context is “new” when it is 19 meaningfully different from the three cases—Bivens, Davis, and Carlson—in which the 20 Supreme Court has implied a damages action. Egbert, 142 S. Ct. at 1803. The Supreme 21 Court has provided a non-exhaustive list of differences that are “meaningful enough” to 22 make a new Bivens context: 23 The rank of the officers involved; the constitutional right at issue; the generality or 24 specificity of the official action; the extent of judicial guidance as to how an officer 25 should respond to the problem or emergency to be confronted; the statutory or other 26 legal mandate under which the officer was operating; the risk of disruptive intrusion 27 by the Judiciary into the functioning of other branches. 28 1 Ziglar, 582 U.S. at 140. For example, in Hernandez v. Mesa, a border patrol agent shot 2 and killed a 15-year-old Mexican national because the agent believed the youth was 3 attempting an illegal border crossing into the United States. 140 S. Ct. 735, 740 (2020). 4 The parents subsequently sued the border patrol agent alleging excessive use of force in 5 violation of the Fourth Amendment. Id. In this case, the Supreme Court analyzed the 6 differences in the specific constitutional rights at issue, excessive use of force compared to 7 an unreasonable search and seizure in Bivens, and the nature of the misconduct by the 8 federal agents, a shooting compared to a warrantless search in Bivens. Id. at 743–44. 9 Ultimately, the Supreme Court concluded that an excessive-force shooting by a border 10 patrol officer presented a meaningfully different context than the Bivens scenario of a 11 warrantless search into an apartment. Id. 12 Under this reasoning, Plaintiff’s claims presented here also present a “new” Bivens 13 context because, like the Hernandez case, they involve a cross-border use of excessive 14 force by federal officers. Although both cases implicate the Fourth Amendment, the 15 specific constitutional right at issue is excessive use of force, not an unreasonable search 16 and seizure. See id. at 743 (“A claim may arise in a new context even if it is based on the 17 same constitutional provision as a claim in a case in which a damages remedy was 18 previously recognized.”). The nature of the misconduct involves an excessive use of force 19 when agents arrested Plaintiff in Mexico pursuant to a search warrant as opposed to a 20 warrantless search into an apartment in the United States. Bivens, 403 U.S. at 388–89. 21 Accordingly, the Court finds that the case presents a new Bivens context. 22 2. Special Factors 23 Given that Plaintiff’s claims involve a “new” Bivens context, the Court must inquire 24 as to whether there are any “special factors” counseling against extending a Bivens claim. 25 In Egbert v. Boule, the Supreme Court provided specific instructions to limit further 26 expansion of Bivens claims: courts are mandated to examine if there is “any reason to think 27 that Congress might be better equipped to create a damages remedy” than the judiciary. 28 142 S. Ct. at 1803. If the answer is yes, then courts cannot recognize a Bivens cause of 1 action. See id. at 1805 (holding that if there is “any rational reason (even one) to think that 2 Congress is better suited to weigh the costs and benefits of allowing a damages claim,” the 3 court cannot recognize a Bivens claim) (emphasis in original) (internal quotations omitted); 4 see also Mejia v. Miller, 61 F.4th 663, 667 (9th Cir. 2023) (“The question is no longer 5 whether the Judiciary is well suited, but whether Congress is better suited.”). Under 6 Egbert, “rarely if ever is the Judiciary equally suited as Congress to extend Bivens even 7 modestly.” Id. at 669; see Harper v. Nedd, 71 F.4th 1181, 1187 (9th Cir. 2023) (“[After 8 Egbert], future extensions of Bivens are dead on arrival.”). Some of the special factors that 9 weigh against judicial expansion of Bivens claims include the availability of alternate forms 10 of relief, foreign relations, and national security concerns. Hernandez, 140 S. Ct. at 744– 11 46; Egbert, 142 S. Ct. at 1806. 12 Here, the fact that Plaintiff had alternate forms of relief available to him outside a 13 Bivens claim counsels against extending a Bivens cause of action. Egbert, 142 S. Ct. at 14 1804. In Egbert, an inn owner assaulted by a border patrol agent brought suit under Bivens 15 in addition to filing an internal grievance complaint with the border patrol agent’s 16 supervisor and an administrative claim under the FTCA. Id. at 1802. The Supreme Court 17 held that the availability of alternative remedies through the complaint with the agent’s 18 supervisor and the FTCA foreclosed a Bivens cause of action. Id. at 1806; see also Corr. 19 Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (noting that the availability of 20 administrative remedies counsels against affording a Bivens cause of action); Mejia, 61 21 F.4th at 669 (dismissing Bivens action based on use of excessive force by a federal agent 22 when alternative administrative remedies were available); Yassein v. Henderson, 2023 WL 23 2669880, at *5 (S.D. Cal. Mar. 13, 2023) (dismissing Bivens action based on use of 24 excessive force by federal agents when the FTCA provided an alternate administrative 25 remedy). Like in Egbert, Plaintiff could have filed an internal grievance complaint with 26 the U.S. Marshals Service and an FTCA claim. See Challenger v. Bassolino, 2023 WL 27 4287204, at *9–10 (D.N.J. June 30, 2023) (dismissing Bivens claim because plaintiff could 28 have filed internal grievance complaint with the U.S. Marshals Service and FTCA remedies 1 were available); Clutts v. Lester, 2023 WL 3901489, at *6 (N.D. Iowa June 8, 2023) 2 (dismissing Bivens claim because plaintiff could file internal grievance complaint with the 3 U.S. Marshals Service). Accordingly, because Plaintiff’s claims present a new Bivens 4 context and special factors counsel against the extension of a Bivens cause of action, the 5 Court cannot infer a constitutional cause of action and remedy for his claims. The Court 6 therefore dismisses Plaintiff’s Bivens claim with prejudice as further amendment would be 7 futile to address the fact that a Biven claim cannot lie in this scenario. 8 D. §§ 1985(3) and 1986 Claims 9 The Court next considers whether Plaintiff sufficiently states violations of 42 U.S.C. 10 §§ 1985(3) and 1986 against U.S. Marshal Guerrero. 42 U.S.C. § 1985(3) prohibits 11 conspiracies to deprive persons of their civil rights. To bring a cause of action under § 12 1985(3), a plaintiff must allege and prove the following four elements: (1) a conspiracy; 13 (2) for the purpose of depriving, either directly or indirectly, any person or class of persons 14 of the equal protection of the laws, or of equal privileges and immunities under the laws; 15 and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his 16 person or property or deprived of any right or privilege of a citizen of the United States. 17 United Bhd. of Carpenters & Joiners of Am., Loc. 610, AFL-CIO v. Scott, 463 U.S. 825, 18 828–29 (1983). For the second prong, a plaintiff must allege a deprivation of a legally 19 protected right motivated by “some racial, or perhaps otherwise class-based, invidiously 20 discriminatory animus.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). Thus, plaintiff 21 must allege the existence of a conspiracy motivated by racial bias to state a § 1985(3) claim. 22 See Gibson v. United States, 781 F.2d 1334, 1341 (9th Cir. 1986) (“The Supreme Court . . 23 . explicitly restricted the statutory coverage [of § 1985(3)] to conspiracies motivated by 24 racial bias.”). 42 U.S.C. § 1986 similarly imposes liability on persons who knew of an 25 impending § 1985 violation but neglected or refused to prevent the violation. Karim- 26 Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988). A plaintiff can 27 maintain a § 1986 action only if the complaint states a valid § 1985 claim. Trerice v. 28 Pedersen, 769 F.2d 1398, 1403 (9th Cir. 1985). 1 Here, Plaintiff fails to state either a §§ 1985(3) or a 1986 claim because he does not 2 allege that Guerrero conspired to deprive him of his constitutional rights because of his 3 race. See Nemcik v. Stevens, 2017 WL 2834120, at *6 (N.D. Cal. June 30, 2017) 4 (dismissing § 1985(3) claim where plaintiff did not allege the existence of racial animus); 5 Hoxey v. Cnty. of Los Angeles, 2009 WL 10655206, at *2 (C.D. Cal. June 22, 2009) (same). 6 Because Plaintiff fails to state a § 1985(3) claim, he also fails to state a § 1986 claim. See 7 Trerice, 769 F.2d at 1403 (finding no cause of action under § 1986 without a valid § 1985 8 claim). Accordingly, the Court dismisses Plaintiff’s §§ 1985(3) and 1986 claims. 9 Because amendment of these claims would not be futile, the Court grants Plaintiff 10 leave to amend. Courts liberally grant leave to amend, especially in cases prosecuted by 11 pro se litigants, when amendment would not be futile. See Lopez v. Smith, 203 F.3d 1122, 12 1131 (9th Cir. 2000) (noting that the “rule favoring liberality in amendments to pleadings 13 is particularly important for the pro se litigant”). Plaintiff may amend only his §§ 1985(3) 14 and 1986 claims. As Plaintiff is proceeding IFP, the Court will screen his third amended 15 complaint before it orders service through the U.S. marshals. 16 IV. CONCLUSION AND ORDER 17 For the reasons set forth above, the Court grants the United States’ motion to dismiss, 18 Dkt. 209, and dismisses with prejudice Plaintiff’s negligence, assault, battery, false 19 imprisonment, and intentional infliction of emotional distress claims against the United 20 States. After screening Plaintiff’s complaint pursuant to 28 U.S.C. § 1915, the Court also 21 dismisses with prejudice Plaintiff’s Bivens claim against Defendant Guerrero and § 1983 22 claim against Defendant Beal. Plaintiff’s §§ 1985(3) and 1986 claims are dismissed with 23 leave to amend. 24 Plaintiff may file a third amended complaint within thirty days of the date of this 25 order amending only his §§ 1985(3) and 1986 claims against Defendant Guerrero. Failure 26 to timely file a third amended complaint will result in dismissal of the action for failure to 27 prosecute. 28 1 IT IS SO ORDERED. 2 Dated: September 14, 2023 ______________________ Hon. Jinsook Ohta 3 United States District Judge 4

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