1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 Isaias Mosqueda-Cisneros, et al., No. 2:20-cv-00729-KJM-DB 12 Plaintiffs, 13 v. ORDER 14 United States of America, et al., 15 Defendants. 16 17 This case arises from a physical altercation between plaintiff Isaias Mosqueda-Cisneros 18 and Immigration and Customs Enforcement (ICE) employees, and Mr. Mosqueda’s subsequent 19 detention at the Yuba County Jail. Plaintiffs Mr. Mosqueda and his wife, Erica Tenerio, filed this 20 case to pursue claims against the United States and ICE for negligence and loss of consortium 21 under the Federal Tort Claims Act. Plaintiffs are also pursuing claims against Yuba County and 22 several unnamed employees, agents, and policymakers for excessive force and other 23 constitutional claims. Defendant United States moves for summary judgment on the two claims 24 brought against it. Because both claims are time-barred, the motion is granted. 25 I. BACKGROUND 26 The following facts are undisputed except as noted. On April 3, 2018, ICE agents arrested 27 Mr. Mosqueda for immigration-related charges. See Statement of Undisputed Facts (SUF) ¶ 1, 28 ///// 1 ECF No. 28–2. When ICE employees attempted to fingerprint him at ICE’s Sacramento office, a 2 physical altercation broke out. See id. ¶ 2. 3 Mr. Mosqueda alleges ICE employees “struck, punched, kicked, strangled, and eye- 4 gouged” him, and this caused him to lose consciousness for hours. See Second Amended 5 Complaint (SAC) ¶¶ 31–36, ECF No. 24. He also alleges he “remained insensible for at least 24 6 hours” afterwards. See id. ¶ 22. He offers no evidence in support of these allegations. The only 7 relevant evidence before the court is Mr. Mosqueda’s medical records from Yuba County Jail. 8 See Frueh Decl. Exs. 9–13, ECF No. 28-15–19. On a medical intake form dated April 3, 2018 at 9 10:13 p.m., staff noted that Mr. Mosqueda has experienced “no loss of consciousness” within the 10 past 24 to 48 hours. See Intake Form at 4,1 Frueh Decl. Ex. 9, ECF No. 28-15. Medical records 11 dated three days later indicate that Mr. Mosqueda reported losing consciousness for five minutes 12 in connection with the altercation at the ICE facility. See Progress Notes at 2, Frueh Decl. Ex. 10, 13 ECF No. 28-16. The medical records do not contain other references to loss of consciousness. 14 See generally Frueh Decl. Exs. 9–13. Taken in the light most favorable to Mr. Mosqueda, see 15 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), this evidence shows 16 that he was unconscious for five minutes. 17 After the physical altercation, an injured Mr. Mosqueda was transported from the ICE 18 facility to Rideout Memorial Hospital, and from there to Yuba County Jail. See generally Frueh 19 Decl. Ex. 9. Within weeks, Mr. Mosqueda had retained the attorney who represents him in this 20 action, and he was released from Yuba County Jail soon thereafter. See Bond Redetermination 21 Brief at 7, Frueh Decl. Ex. 6, ECF No. 28-12 (signed April 23, 2018); Custody Actions Docket at 22 2, Bailey Decl. Ex. 4, ECF No. 28-9 (released on bond May 3, 2018). 23 Almost two years after Mr. Mosqueda’s initial arrest, plaintiffs’ counsel sent pre-suit 24 administrative tort claims to ICE on behalf of Mr. Mosqueda and his co-plaintiff and wife Erica 25 Tenerio. See Frueh Decl. Ex. 7 at 2, 4, ECF No. 28-13. The claims were deposited with FedEx 26 on April 2, 2020, see Frueh Decl. Ex. 8 at 2, ECF No. 28-14, and received by ICE on April 7, 27 1 To avoid confusion, pages cited here are those printed on the top right page of the 28 document by the CM/ECF system. 1 2020, see Head Decl. ¶ 3, ECF No. 28-5; see also Head Decl. Ex. 2 at 2, ECF No. 28-6.2 Later 2 that year, Mr. Mosqueda was removed to Mexico. See Bailey Decl. Ex. 5 at 2, ECF No. 28-10. 3 As noted above, Mr. Mosqueda and Ms. Tenerio have brought claims against the United 4 States, ICE, Yuba County, and several unnamed employees. See generally SAC. The United 5 States has moved for summary judgment on both claims against it. See generally Mot., ECF No. 6 28; Reply, ECF No. 33. Plaintiffs filed an untimely response without engaging the government’s 7 substantive arguments. See generally Opp’n, ECF No. 31. Rather, plaintiffs argue the United 8 States’ pre-answer motion for summary judgment was premature and that its early filing 9 establishes all allegations in the operative complaint. See id. at 3–5. The court disagrees. “[A] 10 motion for summary judgment may be brought prior to filing an answer.” Hale v. Beneficial Fin., 11 225 F.3d 662 (9th Cir. 2000) (citing Gifford v. Travelers Protective Ass'n of America, 153 F.2d 12 209, 210 (9th Cir. 1943)); see also Fed. R. Civ. P. 56(b) (“Unless a different time is set by local 13 rule or the court orders otherwise, a party may file a motion for summary judgment at any time 14 until 30 days after the close of all discovery.”). Nevertheless, even when summary judgment is 15 effectively unopposed, the court maintains “an obligation to evaluate independently the 16 sufficiency of the moving papers.” Cristobal v. Siegel, 26 F.3d 1488, 1496 (9th Cir. 1994). The 17 court conducts the required independent evaluation below. 18 II. LEGAL STANDARD 19 A court may grant summary judgment “if . . . there is no genuine dispute as to any 20 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 21 The “threshold inquiry” is whether “there are any genuine factual issues that properly can be 22 ///// 23 2 On April 6, 2020, plaintiffs’ claims were received by the Consolidated Remote Delivery 24 Site (CRDS), a contractor-operated facility that screens incoming mail for the Department of Homeland Security. See SUF ¶¶ 16–17; see also McCleary Decl. ¶ 4, ECF No. 28-3; McCleary 25 Decl. Ex. 1 at 2, ECF No. 28-4. Because a claim is “presented” for purposes of the Federal Tort 26 Claims Act when a federal agency receives it, see 28 C.F.R. § 14.2, and because the statutory definition of “federal agency” excludes “any contractor with the United States,” 28 U.S.C. 27 § 2671; see also 28 C.F.R. § 14.1, the date on which CRDS received the claims is not relevant here. Even if it were, the April 3, 2020 deadline for presentation of plaintiffs’ claims had already 28 passed when CRDS received the claims. 1 resolved only by a finder of fact because they may reasonably be resolved in favor of either 2 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 3 The moving party bears the initial burden of showing the district court “there is an 4 absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 5 317, 325 (1986). The burden then shifts to the nonmoving party, which “must establish that there 6 is a genuine issue of material fact . . . .” Matsushita, 475 U.S. at 585. In carrying their burdens, 7 both parties must cite “particular parts of materials in the record,” show “the materials cited do 8 not establish the absence or presence of a genuine dispute,” or show “an adverse party cannot 9 produce admissible evidence to support the fact.” Fed. R. Civ. P.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 Isaias Mosqueda-Cisneros, et al., No. 2:20-cv-00729-KJM-DB 12 Plaintiffs, 13 v. ORDER 14 United States of America, et al., 15 Defendants. 16 17 This case arises from a physical altercation between plaintiff Isaias Mosqueda-Cisneros 18 and Immigration and Customs Enforcement (ICE) employees, and Mr. Mosqueda’s subsequent 19 detention at the Yuba County Jail. Plaintiffs Mr. Mosqueda and his wife, Erica Tenerio, filed this 20 case to pursue claims against the United States and ICE for negligence and loss of consortium 21 under the Federal Tort Claims Act. Plaintiffs are also pursuing claims against Yuba County and 22 several unnamed employees, agents, and policymakers for excessive force and other 23 constitutional claims. Defendant United States moves for summary judgment on the two claims 24 brought against it. Because both claims are time-barred, the motion is granted. 25 I. BACKGROUND 26 The following facts are undisputed except as noted. On April 3, 2018, ICE agents arrested 27 Mr. Mosqueda for immigration-related charges. See Statement of Undisputed Facts (SUF) ¶ 1, 28 ///// 1 ECF No. 28–2. When ICE employees attempted to fingerprint him at ICE’s Sacramento office, a 2 physical altercation broke out. See id. ¶ 2. 3 Mr. Mosqueda alleges ICE employees “struck, punched, kicked, strangled, and eye- 4 gouged” him, and this caused him to lose consciousness for hours. See Second Amended 5 Complaint (SAC) ¶¶ 31–36, ECF No. 24. He also alleges he “remained insensible for at least 24 6 hours” afterwards. See id. ¶ 22. He offers no evidence in support of these allegations. The only 7 relevant evidence before the court is Mr. Mosqueda’s medical records from Yuba County Jail. 8 See Frueh Decl. Exs. 9–13, ECF No. 28-15–19. On a medical intake form dated April 3, 2018 at 9 10:13 p.m., staff noted that Mr. Mosqueda has experienced “no loss of consciousness” within the 10 past 24 to 48 hours. See Intake Form at 4,1 Frueh Decl. Ex. 9, ECF No. 28-15. Medical records 11 dated three days later indicate that Mr. Mosqueda reported losing consciousness for five minutes 12 in connection with the altercation at the ICE facility. See Progress Notes at 2, Frueh Decl. Ex. 10, 13 ECF No. 28-16. The medical records do not contain other references to loss of consciousness. 14 See generally Frueh Decl. Exs. 9–13. Taken in the light most favorable to Mr. Mosqueda, see 15 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), this evidence shows 16 that he was unconscious for five minutes. 17 After the physical altercation, an injured Mr. Mosqueda was transported from the ICE 18 facility to Rideout Memorial Hospital, and from there to Yuba County Jail. See generally Frueh 19 Decl. Ex. 9. Within weeks, Mr. Mosqueda had retained the attorney who represents him in this 20 action, and he was released from Yuba County Jail soon thereafter. See Bond Redetermination 21 Brief at 7, Frueh Decl. Ex. 6, ECF No. 28-12 (signed April 23, 2018); Custody Actions Docket at 22 2, Bailey Decl. Ex. 4, ECF No. 28-9 (released on bond May 3, 2018). 23 Almost two years after Mr. Mosqueda’s initial arrest, plaintiffs’ counsel sent pre-suit 24 administrative tort claims to ICE on behalf of Mr. Mosqueda and his co-plaintiff and wife Erica 25 Tenerio. See Frueh Decl. Ex. 7 at 2, 4, ECF No. 28-13. The claims were deposited with FedEx 26 on April 2, 2020, see Frueh Decl. Ex. 8 at 2, ECF No. 28-14, and received by ICE on April 7, 27 1 To avoid confusion, pages cited here are those printed on the top right page of the 28 document by the CM/ECF system. 1 2020, see Head Decl. ¶ 3, ECF No. 28-5; see also Head Decl. Ex. 2 at 2, ECF No. 28-6.2 Later 2 that year, Mr. Mosqueda was removed to Mexico. See Bailey Decl. Ex. 5 at 2, ECF No. 28-10. 3 As noted above, Mr. Mosqueda and Ms. Tenerio have brought claims against the United 4 States, ICE, Yuba County, and several unnamed employees. See generally SAC. The United 5 States has moved for summary judgment on both claims against it. See generally Mot., ECF No. 6 28; Reply, ECF No. 33. Plaintiffs filed an untimely response without engaging the government’s 7 substantive arguments. See generally Opp’n, ECF No. 31. Rather, plaintiffs argue the United 8 States’ pre-answer motion for summary judgment was premature and that its early filing 9 establishes all allegations in the operative complaint. See id. at 3–5. The court disagrees. “[A] 10 motion for summary judgment may be brought prior to filing an answer.” Hale v. Beneficial Fin., 11 225 F.3d 662 (9th Cir. 2000) (citing Gifford v. Travelers Protective Ass'n of America, 153 F.2d 12 209, 210 (9th Cir. 1943)); see also Fed. R. Civ. P. 56(b) (“Unless a different time is set by local 13 rule or the court orders otherwise, a party may file a motion for summary judgment at any time 14 until 30 days after the close of all discovery.”). Nevertheless, even when summary judgment is 15 effectively unopposed, the court maintains “an obligation to evaluate independently the 16 sufficiency of the moving papers.” Cristobal v. Siegel, 26 F.3d 1488, 1496 (9th Cir. 1994). The 17 court conducts the required independent evaluation below. 18 II. LEGAL STANDARD 19 A court may grant summary judgment “if . . . there is no genuine dispute as to any 20 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 21 The “threshold inquiry” is whether “there are any genuine factual issues that properly can be 22 ///// 23 2 On April 6, 2020, plaintiffs’ claims were received by the Consolidated Remote Delivery 24 Site (CRDS), a contractor-operated facility that screens incoming mail for the Department of Homeland Security. See SUF ¶¶ 16–17; see also McCleary Decl. ¶ 4, ECF No. 28-3; McCleary 25 Decl. Ex. 1 at 2, ECF No. 28-4. Because a claim is “presented” for purposes of the Federal Tort 26 Claims Act when a federal agency receives it, see 28 C.F.R. § 14.2, and because the statutory definition of “federal agency” excludes “any contractor with the United States,” 28 U.S.C. 27 § 2671; see also 28 C.F.R. § 14.1, the date on which CRDS received the claims is not relevant here. Even if it were, the April 3, 2020 deadline for presentation of plaintiffs’ claims had already 28 passed when CRDS received the claims. 1 resolved only by a finder of fact because they may reasonably be resolved in favor of either 2 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 3 The moving party bears the initial burden of showing the district court “there is an 4 absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 5 317, 325 (1986). The burden then shifts to the nonmoving party, which “must establish that there 6 is a genuine issue of material fact . . . .” Matsushita, 475 U.S. at 585. In carrying their burdens, 7 both parties must cite “particular parts of materials in the record,” show “the materials cited do 8 not establish the absence or presence of a genuine dispute,” or show “an adverse party cannot 9 produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). Even if the 10 nonmovant does not present evidence or dispute movant’s analysis of the evidence, “the moving 11 party retains its burden to demonstrate the absence of any issue of material fact.” Cristobal v. 12 Siegel, 26 F.3d 1488, 1494–95 (9th Cir. 1994). 13 In deciding a motion for summary judgment, the court draws all inferences and views all 14 evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587–88. 15 “Where the record taken as a whole could not lead a rational trier of fact to find for the non- 16 moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank of Ariz. v. 17 Cities Serv. Co., 391 U.S. 253, 289 (1968)). 18 III. ANALYSIS 19 A. Claims against the United States 20 Mr. Mosqueda’s negligence claim is time-barred. Before suing the United States in tort, a 21 plaintiff must first present a claim to the appropriate federal agency, and must do so within two 22 years of the claim’s accrual. See 28 U.S.C. § 2401(b); Gallardo v. United States, 755 F.3d 860, 23 863–64 (9th Cir. 2014). A claim is presented when the agency receives it. See 28 C.F.R. § 14.2; 24 see also Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1251–52 (9th Cir. 2006) (mailbox rule does 25 not supersede 28 C.F.R. § 14.2). The claim that Mr. Mosqueda submitted to ICE describes the 26 April 3, 2018 physical incident when he says ICE employees struck, punched, kicked, and eye- 27 gouged him. See Frueh Decl. Ex. 7 at 2. It does not describe anything that took place after 28 April 3, 2018. Id. Thus, for this claim to have been timely, ICE would have had to receive it on 1 or before April 3, 2020. See 28 U.S.C. § 2401(b). Because undisputed facts establish that ICE 2 did not receive the claim until April 7, 2020, see Head Decl. ¶ 3; see also Head Decl. Ex. 2 at 2, 3 Mr. Mosqueda’s claim against the United States is time-barred unless equitable tolling applies. 4 “Long-settled equitable-tolling principles instruct that generally, a litigant seeking 5 equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his 6 rights diligently, and (2) that some extraordinary circumstances stood in his way.” Kwai Fun 7 Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013), aff'd and remanded sub nom., United States 8 v. Wong, 575 U.S. 402 (2015) (internal quotation marks and alterations omitted). Equitable 9 tolling “does not apply when a late filing is due to claimant's failure to exercise due diligence in 10 preserving his legal rights.” Redlin v. United States, 921 F.3d 1133, 1140 (9th Cir. 2019). 11 Mr. Mosqueda falls short at both steps. As to the first, nothing in the record indicates he 12 has been diligent in pursuing his rights. Mr. Mosqueda retained counsel before April 23, 2018, 13 when he had more than 23 months to submit his claim to ICE. See Frueh Decl. Ex. 6 at 7 14 (counsel in present action signed brief on his behalf on April 23, 2018). Mr. Mosequeda provides 15 no explanation for his inability to timely submit his claim. Nor does the record indicate any 16 extraordinary circumstances standing in Mr. Mosqueda’s way. To the contrary, it appears the late 17 filing was due to Mr. Mosqueda’s “failure to exercise due diligence in preserving his legal 18 rights.” Redlin, 921 F.3d at 1140. His negligence claim against the United States is time-barred. 19 Ms. Tenerio’s claim against the United States for loss of consortium is also time-barred. 20 Like her husband’s, Ms. Tenerio’s administrative complaint references only the events of April 3, 21 2018. See Frueh Decl. Ex. 7 at 4. And like her husband’s, Ms. Tenerio’s administrative 22 complaint was received by ICE on April 7, 2020. See Head Decl. ¶ 3; Head Decl. Ex. 2 at 2. 23 Ms. Tenerio can establish neither the diligence nor the extraordinary circumstances required to 24 benefit from equitable tolling. See Wong, 732 F.3d at 1052. 25 Summary judgment is granted in favor of the United States on plaintiffs’ negligence and 26 loss of consortium claims. 27 ///// 28 ///// ] B. Claims against ICE 2 The United States reports that “[a]s a result of the parties’ meet-and-confer efforts, 3 | Plaintiffs’ Second Amended Complaint substituted the United States in lieu of [ICE] as a 4 || defendant.” Reply at 4. But plaintiffs’ Second Amended Complaint continues to allege ICE 1s 5 || liable. See, e.g, SAC JF 11 (identifying ICE as defendant), 44 (“This Cause of Action is alleged 6 || against... ICE”), 51 (same). But the court agrees with the United States that the Federal Tort 7 || Claims Act only authorizes claims against the United States, not individual federal agencies. See 8 | 28 U.S.C. § 1346(b)(1); F.D.LC. v. Craft, 157 F.3d 697, 706 (9th Cir. 1998) (“The FTCA is the 9 || exclusive remedy for tortious conduct by the United States, and it only allows claims against the 10 || United States.”); West v. City of Mesa, 708 F. App'x 288, 290-91 (9th Cir. 2017). The court 11 || dismisses any claims remaining against ICE. 12 | IV. CONCLUSION 13 For the foregoing reasons, the United States’ motion for summary judgment is granted in 14 | full. The clerk is directed to terminate ICE and the United States as defendants. 15 This order resolves ECF No. 28. 16 IT IS SO ORDERED. 17 | DATED: March 22, 2022. 18
50 CHIEF ED STATES DISTRICT JUDGE
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