Simmons v. Mischel

• Court: District Court, N.D. California
• Decided: March 3, 2020
• Docket: 5:18-cv-02193
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 JOYCE MARIE SIMMONS, Case No. 18-cv-02193-VKD

9 Plaintiff, ORDER GRANTING IN PART AND 10 v. DENYING IN PART DEFENDANTS’ MOTION TO DISMISS AND FOR 11 T. MISCHEL, et al., SUMMARY JUDGMENT; SCREENING AMENDED COMPLAINT Defendants. 12 Re: Dkt. No. 50 13

14 In this action, pro se plaintiff Joyce Marie Simmons, a federal prisoner confined at the 15 Federal Correctional Institution in Dublin, California (“FCI-Dublin”), filed suit against several 16 prison officials for allegedly violating her constitutional rights.1 Dkt. No. 1. On defendants’ 17 motion for summary judgment, the Court dismissed Ms. Simmons’s constitutional claims against 18 the officials for failure to exhaust administrative remedies. Dkt. No. 47. However, the Court 19 granted Ms. Simmons leave to file an amended complaint to attempt to state a claim under the 20 Federal Torts Claim Act (“FTCA”). Id. 21 On October 28, 2019,2 Ms. Simmons filed an unverified amended complaint with a single 22 claim for damages for personal injury under the FTCA. Dkt. No. 49. In addition to the original 23 defendants, the amended complaint adds the United States as a defendant. Id. Before the Court 24 25

26 1 Although Ms. Simmons filed her complaint as an action under 42 U.S.C. § 1983, the Court construed the complaint as an action arising under Bivens v. Six Unknown Fed. Narcotics Agents, 27 403 U.S. 388 (1971). Dkt. No. 28 at 2. 1 had an opportunity to screen Ms. Simmons’s amended complaint, defendants moved to dismiss it 2 for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil 3 Procedure, or alternatively, for summary judgment pursuant to Rule 56. Dkt. No. 50. Ms. 4 Simmons did not respond to defendants’ motion. 5 For the reasons stated below, the Court grants in part and denies in part defendants’ motion 6 to dismiss and for summary judgment. The Court also conducts an initial screening of the 7 amended complaint with respect to the surviving claim. 8 I. BACKGROUND 9 In her amended complaint, Ms. Simmons alleges that on August 15, 2017, defendant 10 Ashley Phillips kicked open her cell door and struck Ms. Simmons, who was seated on the toilet just 11 inside the door at that time, on her right knee. Dkt. No. 49 at 2. Ms. Simmons says that Ms. Phillips 12 knew she was in her cell and seated on the toilet because Ms. Simmons had placed a piece of paper on 13 the door window indicating that the cell was occupied and the toilet was in use. Id. Ms. Simmons also 14 says that when she called out that her knee had been struck, Ms. Phillips laughed at her and said, “I 15 don’t give a f—k. I have the f—king right to come in whenever I want. Now what about that.” Id. 16 Ms. Simmons reported the cell door incident to a case manager and a second shift officer 17 on August 15, 2017, but she did not seek medical attention that day. Id. at 2–3. According to Ms. 18 Simmons, no medical attention was available to prisoners on the following day, August 16, 2017. 19 Id. at 3. On the morning of August 17, 2017, Ms. Simmons went to the prison’s health services 20 department, complaining of pain and swelling in her right knee. Id. The medical provider 21 conducted a “cursory examination” but did not obtain an x-ray or MRI of Ms. Simmons’s knee. 22 Id. The medical provider discharged Ms. Simmons to her unit and advised her to use over-the- 23 counter pain medication and to do knee exercises. Id. Ms. Simmons alleges that she has a prior 24 minor knee injury and arthritis, and that these conditions were exacerbated by the injury she 25 sustained on August 15, 2017, for which she says she will “likely require future surgery.” Id. Ms. 26 Simmons seeks damages of $50,000 for physical injury and emotional distress. Id. 27 On November 30, 2017, Ms. Simmons submitted an administrative tort claim for injury 1 Regional Office acknowledged by letter dated December 7, 2017. Id., Ex. 1. In her administrative 2 claim, Ms. Simmons recounted the cell door incident that occurred on August 15, 2017. She 3 claimed that her injury was “constant sharp excruciating pain of right knee/leg” and asked for 4 $50,000 in compensation for personal injury. Id. The Bureau of Prisons denied Ms. Simmons’s 5 claim on February 15, 2018. Id., Ex. 2. 6 Ms. Simmons filed an action against the individual defendants on April 12, 2018 asserting 7 claims for (1) use of excessive force and failure to protect her from excessive force, in violation of 8 the Eighth Amendment, (2) placement in administrative detention in retaliation for filing a lawsuit, 9 in violation of the First Amendment, and (3) denial of due process of law in connection with her 10 administrative detention, in violation of the Fifth Amendment.3 Dkt. No. 1. The complaint did 11 not name the United States as a defendant. Id. Pursuant to this Court’s September 14, 2018 order 12 (Dkt. No. 14), the Clerk of the Court notified the individual defendants about this lawsuit on 13 September 18, 2018. Dkt. Nos. 15, 16, 17, 18, 19, 20. The Federal Bureau of Prisons notified the 14 United States Attorney’s Office (“USAO”) about this action on October 2, 2018. Dkt. No. 50-2 ¶ 15 3. 16 On September 27, 2019, the Court dismissed Ms. Simmons’s constitutional claims against 17 the individual defendants because she failed to exhaust her administrative remedies. Dkt. No. 47. 18 However, in view of its obligation to construe pro se pleadings liberally, the Court observed that 19 Ms. Simmons may have intended to state a claim under the FTCA. Id. at 13. The Court gave Ms. 20 Simmons 30 days, to file an amended complaint that stated an FTCA claim. Id. at 14. It appears 21 that the amended complaint was timely filed.4 Dkt. No. 49. Before the Court had an opportunity 22 3 Ms. Simmons relied on the Fourteenth Amendment, which applies only to the states. The Court 23 construed this claim as a claim for violation of the Fifth Amendment, which applies to the federal government. Dkt. No. 47 at 1 n.1. 24

4 The amended complaint was due no later than October 27, 2019. Although the amended 25 complaint was docketed on October 30, 2019 (Dkt. No. 49), the envelope in which it was mailed to the Court bears a stamped file date of October 28, 2019. Dkt. No. 49-2. Ms. Simmons is 26 entitled to the benefit of a relaxed filing rule which allows civil filings by pro se prisoners to be deemed filed on the date the prisoner submits the filing to prison authorities for mailing to the 27 Court, as opposed to the date the Court receives the filing. See Faile v. Upjohn Co., 988 F.2d 985, 1 to screen the amended complaint under 28 U.S.C. § 1915A(a), defendants moved to dismiss the 2 amended complaint. Dkt. No. 50. 3 II. LEGAL STANDARD 4 A. Motion to Dismiss under Rule 12(b)(1) 5 Federal courts have limited jurisdiction to adjudicate only cases involving diversity of 6 citizenship or a federal question, or those to which the United States is a party. Mims v. Arrow 7 Financial Services, LLC, 565 U.S. 368, 376–77 (2012); see also Chen-Cheng Wang ex rel. United 8 States v. FMC Corp., 975 F.2d 1412, 1415 (9th Cir. 1992) (“Federal courts have no power to 9 consider claims for which they lack subject-matter jurisdiction.”), overruled on other grounds by 10 United States ex rel. Hartpence v. Kinetic Concepts, Inc., 792 F.3d 1121 (9th Cir. 2015). A 11 defendant may raise the defense of lack of subject matter jurisdiction by motion pursuant to Rule 12 12(b)(1) of the Federal Rules of Civil Procedure. The plaintiff bears the burden of establishing 13 subject matter jurisdiction. Kokkonen v. Guardian Life Ins., 511 U.S. 375, 377 (1994). 14 A jurisdictional challenge may be facial or factual. Safe Air for Everyone v. Meyer, 373 15 F.3d 1035, 1039 (9th Cir. 2004). Where the attack is facial, the Court determines whether the 16 allegations contained in the complaint are sufficient on their face to invoke federal jurisdiction, 17 accepting all material allegations in the complaint as true and construing them in favor of the party 18 asserting jurisdiction. Id.; see also Warth v. Seldin, 422 U.S. 490, 501 (1975). Where the attack is 19 factual, however, “the court need not presume the truthfulness of the plaintiff’s allegations.” Safe 20 Air for Everyone, 373 F.3d at 1039. In resolving a factual dispute as to the existence of subject 21 matter jurisdiction, a court may review extrinsic evidence beyond the complaint without 22 converting a motion to dismiss into one for summary judgment. Id. Once the moving party has 23 made a factual challenge by offering affidavits or other evidence to dispute the allegations in the 24 complaint, the party opposing the motion must “present affidavits or any other evidence necessary 25 to satisfy its burden of establishing that the court, in fact, possesses subject matter 26 jurisdiction.” St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989); see also Savage v. 27 1 Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1040 n.2 (9th Cir. 2003). 2 “Jurisdictional dismissals in cases premised on federal-question jurisdiction are 3 exceptional, and must satisfy the requirements specified in Bell v. Hood, 327 U.S. 678, 66 S. Ct. 4 773, 90 L. Ed. 939 (1946).” Sun Valley Gas., Inc. v. Ernst Enters., 711 F.2d 138, 140 (9th Cir. 5 1983). The Supreme Court has determined that jurisdictional dismissals are warranted “where the 6 alleged claim under the Constitution or federal statues clearly appears to be immaterial and made 7 solely for the purpose of obtaining federal jurisdiction or where such claim is wholly insubstantial 8 and frivolous.” Bell, 327 U.S. at 682–83. 9 B. Summary Judgment under Rule 56 10 A party may move for summary judgment on a “claim or defense” or “part of . . . a claim 11 or defense.” Fed. R. Civ. P. 56(a). Summary judgment is appropriate when, after adequate 12 discovery, there is no genuine issue as to any material facts and the moving party is entitled to 13 judgment as a matter of law. Id.; see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 14 Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 15 477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there is sufficient 16 evidence for a reasonable jury to return a verdict for the nonmoving party. Id. 17 A party seeking summary judgment bears the initial burden of informing the Court of the 18 basis for its motion, and of identifying those portions of the pleadings and discovery responses 19 that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Where 20 the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no 21 reasonable trier of fact could find other than for the moving party. S. Calif. Gas. Co. v. City of 22 Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003). 23 On an issue where the nonmoving party will bear the burden of proof at trial, the moving 24 party may discharge its burden of production either (1) by “produc[ing] evidence negating an 25 essential element of the nonmoving party’s case” or (2) after suitable discovery, by “show[ing] 26 that the nonmoving party does not have enough evidence of an essential element of its claim or 27 defense to discharge its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., 1 Once the moving party meets its initial burden, the opposing party must then set forth 2 specific facts showing that there is some genuine issue for trial in order to defeat the motion. See 3 Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 250. “A party opposing summary judgment may not 4 simply question the credibility of the movant to foreclose summary judgment.” Anderson, 477 5 U.S. at 254. “Instead, the non-moving party must go beyond the pleadings and by its own 6 evidence set forth specific facts showing that there is a genuine issue for trial.” Far Out Prods., 7 Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001) (citations and quotations omitted). The non- 8 moving party must produce “specific evidence, through affidavits or admissible discovery 9 material, to show that the dispute exists.” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th 10 Cir. 1991). Conclusory or speculative testimony in affidavits and moving papers is insufficient to 11 raise a genuine issue of material fact to defeat summary judgment. Thornhill Publ’g Co., Inc. v. 12 Gen. Tel. & Elecs. Corp., 594 F.2d 730, 738 (9th Cir. 1979). 13 III. DISCUSSION 14 Defendants make two arguments. First, they argue that because the United States is the 15 only proper defendant in an FTCA action, Ms. Simmons may not assert an FTCA claim against 16 the individual defendants. Dkt. No. 50 at 5–6. Second, they argue that Ms. Simmons’s FTCA 17 claim against the United States is barred by the statute of limitations. Id. at 6–9. Defendants rely 18 on evidence outside the amended complaint, making a factual challenge to subject matter 19 jurisdiction under Rule 12(b)(1). Relying on the same evidence, defendants also argue that Ms. 20 Simmons’s FTCA claim is time-barred as a matter of law under Rule 56. 21 The Court addresses each of defendants’ arguments. 22 A. Proper Defendant for the FTCA Claim 23 The FTCA waives the sovereign immunity of the United States and provides a remedy for 24 acts or omissions by federal employees that constitute torts under state law. See 28 U.S.C. § 1346; 25 FDIC v. Meyer, 510 U.S. 471, 475–76 (1994). 26 In her amended complaint, Ms. Simmons names the United States and six individual 27 federal employees as defendants, asserting that they were “acting in their official capacity as 1 that the United States, not individual federal employees, is the only proper defendant for an FTCA 2 claim. See Allen v. Veterans Admin., 749 F.2d 1386, 1388 (9th Cir. 1984) (citing 28 U.S.C. 3 §§ 1346(b), 2679(a)). As the individual federal employees are not proper defendants, the Court 4 grants defendants’ motion to dismiss them from the action. 5 B. Timeliness of the FTCA Claim 6 Before seeking relief under the FTCA, a plaintiff must first file an administrative FTCA 7 claim with the appropriate federal agency. 28 U.S.C. § 2675(a); Alvarado v. Table Mt. Rancheria, 8 509 F.3d 1008, 1018–19 (9th Cir. 2007); Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 9 1992). If that agency denies the administrative FTCA claim, the plaintiff may seek relief in 10 federal court by filing an action no later than six months from the date the agency’s denial was 11 mailed via certified or registered mail. 28 U.S.C. § 2401(b). The six-month limitation period 12 begins running as soon as the agency mails its notice of denial. See Redlin v. United States, 921 13 F.3d 1133, 1139 (9th Cir. 2019). 14 The Western Regional Office of the Bureau of Prisons mailed its denial of Ms. Simmons’s 15 administrative tort claim on February 15, 2018 via certified mail.5 Dkt. No. 49 at 8. Ms. 16 Simmons was required to file suit within six months from that date—i.e., by August 15, 2018. 28 17 U.S.C. § 2401(b). Although Ms. Simmons filed this action on April 12, 2018 within the six- 18 month limitation period, she did not specifically assert an FTCA claim or name the United States 19 as a defendant at that time. She did not do so until she filed an amended complaint on October 28, 20 2019, well after the expiration of the six-month limitation period. Dkt. Nos. 1, 49. 21 Ms. Simmons’s FTCA claim against the United States was not filed within six months of 22 mailing of the notice of denial, a finding that Ms. Simmons does not contest. Accordingly, unless 23 Ms. Simmons’s delay is excused or overcome, the claim must be dismissed. 24 C. Application of Equitable Tolling Doctrine 25 As defendants acknowledge, the six-month limitation period for filing an FTCA claim is 26 5 The United States relies on a notation on the face of the denial letter as evidence that the denial 27 was mailed by certified mail, but provides no other supporting evidence, such as a certified mail 1 not jurisdictional and is subject to equitable tolling. United States v. Wong, 575 U.S. 402, 412, 2 419 (2015). Generally, a litigant seeking equitable tolling bears the burden of establishing two 3 elements: (1) that she has been pursuing her rights diligently, and (2) that some extraordinary 4 circumstances stood in her way. Credit Suisse Secs. (USA) LLC v. Simmonds, 566 U.S. 221, 227 5 (2012). 6 Ms. Simmons has made no such showing here. As defendants point out, the letter denying 7 her administrative FTCA claim specifically advised that her federal district court claim would 8 need to be filed within six months. Dkt. No. 49 at 8. Although Ms. Simmons referred to her 9 administrative FTCA claim in her original complaint in describing her efforts to exhaust 10 administrative remedies, she did not include a claim under the FTCA in that complaint or name 11 the United States as a defendant. Dkt. No. 1 at ECF p.13. She provides no justification for her 12 delay and identifies no extraordinary circumstances that would support application of the equitable 13 tolling doctrine. See Redlin v. United States, 921 F.3d 1133, 1140–41 (9th Cir. 2019) (affirming 14 district court’s denial of equitable tolling). 15 Accordingly, the Court concludes that the time limit for Ms. Simmons’s FTCA claim was 16 not equitably tolled. 17 D. Application of Rule 15(c) Relation Back Doctrine 18 Defendants acknowledge that an amendment that adds an otherwise time-barred claim 19 and/or a claim against a new party may “relate back” to an earlier filed complaint if the amended 20 pleading meets the requirements of Rule 15(c). Dkt. No. 50 at 6. 21 Rule 15(c)(1)(B) provides that an amendment that asserts a new claim relates back to the 22 original pleading if the new claim “arose out of the conduct, transaction, or occurrence set out—or 23 attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B); ASARCO, LLC v. 24 Union Pacific R. Co., 765 F.3d 999, 1004 (9th Cir. 2014). Defendants do not dispute that the 25 FTCA claim in the amended complaint arises out of the same circumstances and events set out in 26 the original complaint—specifically, Ms. Philips’s striking Ms. Simmons’s knee with the cell 27 door. Dkt. No. 1 at 8; Dkt. No. 49 at 2. 1 original pleading if, “within the period provided by Rule 4(m) for serving the summons and 2 complaint, the party to be brought in by amendment: (i) received such notice of the action that it 3 will not be prejudiced in defending on the merits; and (ii) knew or should have known that the 4 action would have been brought against it, but for a mistake concerning the proper party’s 5 identity.” Fed. R. Civ. P. 15(c)(1)(C)(i)–(ii); G.F. Co. v. Pan Ocean Shipping Co., 23 F.3d 1498, 6 1501 (9th Cir. 1994) (Rule 15(c)(1)(C) allows a plaintiff to amend a complaint, “after a statute of 7 limitation period has run, to accurately name a defendant who was not correctly named in the 8 pleading before the limitation period had run”). Defendants contend that the United States did not 9 receive the notice required under Rule 15(c)(1)(C) because it was not aware that Ms. Simmons 10 intended to state a claim for relief under the FTCA or that it was the proper defendant for such a 11 claim. Dkt. No. 50 at 7. Defendants move to dismiss the amended complaint on this basis. 12 Defendants do not acknowledge that an alternative notice provision also applies when an 13 amended pleading adds the United States as a defendant. Rule 15(c)(2) provides that “[w]hen the 14 United States or a United States officer or agency is added as a defendant by amendment, the 15 notice requirements of Rule 15(c)(1)(C)(i) and (ii) are satisfied if, during the stated period [i.e. 16 ‘within the period provided by Rule 4(m) for serving the summons and complaint’], process was 17 delivered or mailed to the United States attorney or the United States attorney’s designee, to the 18 Attorney General of the United States, or to the officer or agency.” Fed. R. Civ. P. 15(c)(2); 19 see Miles v. Dep’t of the Army, 881 F.2d 777, 781 (9th Cir. 1989) (distinguishing between the 20 general notice provision of Rule 15(c)(1)(C) and the government notice provision of 15(c)(2)). 21 To satisfy the notice requirements of Rule 15(c)(2), Ms. Simmons must demonstrate that 22 the United States Attorney or Attorney General of the United States received “process” within the 23 period of service allowed under Rule 4(m). Fed. R. Civ. P. 15(c)(2). Under Rule 4(m), a 24 complaint must be served within 90 days unless the Court extends the period of service. Fed. R. 25 Civ. P. 4(m). In Miles, the Ninth Circuit held that this notice requirement is satisfied if the United 26 States Attorney receives notice of the original pleading and that formal service of process is not 27 required. Miles, 881 F.2d at 782–83 (finding notice requirement met where federal agency mailed 1 In this case, Ms. Simmons filed her original complaint on April 12, 2018, within the six- 2 month limitation period. Because she is a prisoner in federal custody, Ms. Simmons’s original 3 complaint was subject to screening under 28 U.S.C. § 1915A(a). In addition, Ms. Simmons 4 successfully applied to proceed in forma pauperis, which means she was entitled to rely on the 5 United States Marshal to serve the complaint. 28 U.S.C. § 1915(d); see Walker v. Sumner, 14 6 F.3d 1415, 1422 (9th Cir. 1994) (the court must appoint the United States Marshal to effect 7 service, and the Marshal must serve the summons and the complaint upon order of the court), 8 abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). Accordingly, the original 9 complaint was not subject to service until the Court reviewed the complaint and ordered the 10 Marshal to serve it. The Court completed its review of the complaint and ordered it served on 11 September 14, 2018 (Dkt. No. 14), necessarily extending Rule 4(m)’s period for service beyond 12 90 days. See, e.g., Robinson v. Clipse, 602 F.3d 605, 608 (4th Cir. 2010); Richardson v. Johnson, 13 598 F.3d 734, 739 (11th Cir. 2010); cf. Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990) 14 (declining to penalize incarcerated pro se plaintiff proceeding IFP with dismissal for failure to 15 effect service where failure to serve was attributable to the U.S. Marshal or the court clerk’s 16 failure to perform their duties); Walker, 14 F.3d at 1422 (finding Marshal’s failure to effect service 17 is automatically good cause within the meaning of Rule 4(m)). Defendants concede that the 18 United States Attorney received notice of the original complaint on October 2, 2018. Dkt. No. 50- 19 2 ¶ 3. 20 Because the United States Attorney received notice of Ms. Simmons’s original complaint 21 within the period of time allowed by Rule 4(m), as extended by the Court, and because Ms. 22 Simmons filed the original complaint within the six-month limitation period, the amended 23 complaint satisfies the notice requirements of Rule 15(c)(2) and relates back to the original 24 complaint. Defendants’ motion to dismiss is denied on this point. 25 The Court will proceed with a review of the amended complaint as required under 28 26 U.S.C. § 1915A. 27 IV. SCREENING OF AMENDED COMPLAINT UNDER § 1915A 1 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 2 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 3 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 4 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 5 monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro 6 se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 7 699 (9th Cir. 1988). 8 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 9 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 10 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the 11 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 12 defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). 13 Furthermore, a court “is not required to accept legal conclusions cast in the form of factual 14 allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult 15 Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994). 16 B. Legal Claims 17 The FTCA, 28 U.S.C. §§ 2671-2680, provides that district courts have exclusive 18 jurisdiction over civil actions against the United States for which it has waived sovereign 19 immunity and rendered itself liable for tort claims “in the same manner and to the same extent as a 20 private individual under like circumstances.” 28 U.S.C. § 2674. Cognizable claims under the 21 FTCA are ones that are: (1) against the United States; (2) for money damages; (3) for injury or 22 loss of property; (4) caused by the negligent or wrongful act or omission of any employee of the 23 government; (5) while acting within the scope of his or her office or employment; (6) under 24 circumstances in which the United States, if a private person, would be liable to the claimant in 25 accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1). 26 The FTCA expressly bars claims “arising out of” an intentional tort, including assault, battery, 27 false imprisonment, false arrest, and malicious prosecution, among others. 28 U.S.C. § 2680(h). 1 amended complaint, Ms. Simmons alleges that on August 15, 2017, defendant Ashley Phillips 2 kicked open her cell door and struck Ms. Simmons, who was seated on the toilet just inside the 3 door at that time. Dkt. No. 49 at 2. Ms. Simmons says that “Ms. Phillips was fully aware that 4 plaintiff was in her cell and seated on the toilet on account of plaintiff had placed a piece of paper 5 on the door window indicating that the cell was occupied and the toilet was in use.” Id. Ms. 6 Simmons also says that when she called out that her knee had been struck, Ms. Phillips laughed at 7 her and said, “I don’t give a f—k. I have the f—king right to come in whenever I want. Now what 8 about that,” which “led to emotional and physical distress.” Id. Ms. Simmons states that “Ms. 9 Phillips negligently failed to assist plaintiff or ask if plaintiff needed medical attention,” and that 10 she “negligently failed to knock and/or announce herself before forcibly kicking the door into 11 plaintiff[’]s right knee.” Id. Ms. Simmons seeks damages of $50,000 for physical injury and 12 emotional distress. Id. at 3. 13 Although Ms. Simmons refers to her claim as based on “negligence,”6 her factual 14 allegations regarding Ms. Phillips implicate the intentional torts exception bar under 28 U.S.C. § 15 2680(h). In determining whether a claim “arises out of” one of the enumerated torts, the court 16 may look beyond a plaintiff’s classification of the cause of action to examine whether the conduct 17 upon which the claim is based constitutes one of the torts listed in § 2680(h). See Sabow v. United 18 States, 93 F.3d 1445, 1456 (9th Cir. 1996) (citing Mt. Homes, Inc. v. United States, 912 F.2d 352, 19 356 (9th Cir. 1990) (“[W]e look beyond [the complaint’s] characterization [of the cause of action] 20 to the conduct on which the claim is based.”); Thomas–Lazear v. Federal Bureau of Investigation, 21 851 F.2d 1202, 1207 (9th Cir. 1988) (“This circuit looks beyond the labels used to determine 22 whether a proposed claim is barred [by the intentional torts exception]”).) The court must 23 consider whether conduct that constitutes an enumerated tort is “essential” to the plaintiff’s claim. 24 See, e.g., Mt. Homes, Inc., 912 F.2d at 356 (holding that plaintiff’s claim alleged conduct that falls 25 6 To state a claim for negligence in California, a plaintiff must establish the following elements: 26 (1) the defendant had a duty, or an “obligation to conform to a certain standard of conduct for the protection of others against unreasonable risks,” (2) the defendant breached that duty, (3) that 27 breach proximately caused the plaintiff’s injuries, and (4) damages. Bass v. Facebook, Inc., 394 1 within the excepted tort of misrepresentation because “the essential element of Mt. Homes’ claim 2 is that [the government] gave it inaccurate information”). 3 Ms. Simmons’s amended complaint appears to assert a claim for battery. Under California 4 law, battery requires the following elements: (1) the defendant touched the plaintiff or caused the 5 plaintiff to be touched with the intent to harm or offend the plaintiff; (2) the plaintiff did not 6 consent to the touching; (3) the defendant’s conduct harmed or offended the plaintiff; and (4) a 7 reasonable person in plaintiff’s situation would have been offended by the touching. Avina v. 8 United States, 681 F.3d 1127, 1130–31 (9th Cir. 2012). Ms. Simmons specifically alleges that 9 Ms. Phillips was “fully aware” Ms. Simmons was seated on the toilet seat behind the door, that 10 Ms. Phillips “forcibly kick[ed] the door,” and that Ms. Phillips’s actions caused injury to her 11 knee.7 Dkt. No. 49 at 2. According to the amended complaint, Ms. Simmons did not consent to 12 the touching, and a reasonable person in her situation would have found the touching offensive. 13 Accordingly, the Court finds that the conduct Ms. Simmons alleges falls within the excepted tort 14 of battery because the essential element of her claim is that Ms. Phillips intentionally harmed her. 15 See Mt. Homes, Inc., 912 F.2d at 356. To the extent Ms. Simmons’s FTCA claim is premised on 16 Ms. Phillips’s conduct, the claim is barred under § 2680(h). 17 Ms. Simmons also alleges that Unit Manager Kimberly Luke observed a heated interaction 18 between Ms. Simmons and Ms. Phillips that occurred just prior to the alleged battery “but failed to 19 intercede [in that interaction] and denied plaintiff the opportunity to speak with her about this 20 abusive treatment of Ms. Phillips.” Dkt. No. 50 at 2. She also claims that Ms. Luke along with 21 Captain Gordon Castillo and Associate Warden Tamara Mischel, were “aware of the prison 22 conditions that were substantially likely to result in the injury of prisoners . . . [and were] under a 23 duty to take reasonable measures to remedy the circumstances that directly led to plaintiff [sic] 24 physical, mental, and emotional injuries/distress.” Id. at 3. 25 7 The Court also notes that Ms. Simmons’s recent characterization of Ms. Phillips’s actions as 26 negligent is not consistent with the allegations in the original complaint, wherein she claimed that Ms. Phillip “employed excessive force” because she “used the door ‘maliciously and sadistically’ 27 for the very purpose of causing me harm.’” Dkt. No. 1 at 8. However, this inconsistency alone is 1 Ms. Simmons does not identify the prison conditions likely to result in injury to prisoners 2 or the measures she believes Ms. Luke, Mr. Castillo, and Ms. Mischel should have taken to 3 prevent the alleged battery by Ms. Phillips. However, at the screening stage, the allegations of the 4 amended complaint are sufficient to state a claim that the negligence of Ms. Phillips’s direct and 5 indirect supervisors proximately caused the alleged battery by Ms. Phillips. The Ninth Circuit has 6 concluded that § 2680(h) does not bar such a claim. See Morrill v. United States, 821 F.2d 1426, 7 1427 (9th Cir. 1987); Kearney v. United States, 815 F.2d 535, 537 (9th Cir. 1987); Bennett v. 8 United States, 803 F.2d 1502, 1503 (9th Cir. 1986); see also Senger v. United States, 103 F.3d 9 1437, 1442 (9th Cir. 1996) (Morrill still good law with respect to claim of negligent supervision).8 10 Accordingly, Ms. Simmons’s supervisory negligence claim under the FTCA may proceed 11 against the United States. 12 V. CONCLUSION 13 For the foregoing reasons, defendants’ motion to dismiss and for summary judgment is 14 granted in part and denied in part. Dkt. No. 50. Ms. Simmons’s FTCA claim against defendants 15 Tamara Mischel, Kimberly Luke, Ashley Phillips, Gordon Castillo, Timothy Brosnan, and W.Z. 16 Jenkins is dismissed with prejudice for failure to state a claim for relief against those individual 17 defendants. Ms. Simmons’s FTCA claim against the United States for supervisory negligence 18 relating to the alleged battery by Ms. Phillips may proceed, and defendants’ motion is denied as to 19 this claim. 20 In view of Ms. Simmons’s failure to respond to defendants’ motion, the Court questions 21 whether she intends to prosecute the surviving FTCA claim against the United States. Therefore, 22 before the Court proceeds to order further proceedings in this action, it will require Ms. Simmons 23 to file a notice of her intent to prosecute this action. 24 No later than twenty-eight (28) days from the date this order is filed, Ms. Simmons 25 shall file notice of her intent to proceed with a claim for supervisory negligence against the United 26 8 The Supreme Court has recognized but not resolved a conflict among the Circuit Courts of 27 Appeals regarding interpretation of the “arising out of” language of § 2680(h) in the circumstances 1 States under the FTCA. 2 IT IS SO ORDERED. 3 Dated: March 3, 2020 4 5 UnigiuiaZ Win K, Au Mer ele VIRGINIA K. DEMARCH 6 United States Magistrate Judge 7 8 9 10 11 a 12

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