Trinidad v. United States of America

• Court: District Court, S.D. California
• Decided: October 3, 2022
• Docket: 3:22-cv-00229
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LISANDRO TRINIDAD, an individual, Case No.: 22-CV-229 TWR (BLM)

12 Plaintiff, ORDER (1) VACATING HEARING, 13 v. AND (2) GRANTING DEFENDANT’S MOTION TO DISMISS 14 UNITED STATES OF AMERICA, a

sovereign nation; UNITED STATES 15 (ECF No. 6) CUSTOMS AND BORDER PATROL, a 16 federal government agency; the UNITED STATES DEPARTMENT OF 17 HOMELAND SECURITY, a federal 18 government agency; U.S. IMMIGRATION AND CUSTOMS 19 ENFORCEMENT, a federal government 20 agency, 21 Defendants. 22

23 Presently before the Court is the Motion to Dismiss Complaint (“Mot.,” ECF No. 6) 24 filed by Defendant the United States Customs and Border Patrol (“CBP”). Because 25 Plaintiff Lisandro Trinidad failed to oppose the Motion, the Court VACATES the hearing 26 and takes the Motion under submission without oral argument pursuant to Civil Local Rule 27 7.1(d)(1). Plaintiff’s “failure timely to file an opposition . . . may be construed as consent 28 to the granting of the motion pursuant to Civil Local Rule 7.1(f)(3)(c)” and Section III.A.2 1 of the undersigned’s Standing Order for Civil Cases. Even reviewing the Motion and 2 Plaintiff’s Complaint (“Compl.,” ECF No. 1) on the merits, however, the Court GRANTS 3 Defendant’s Motion and DISMISSES WITH PREJUDICE Plaintiff’s first and second 4 causes of action as to the CBP and Plaintiff’s request for prejudgment interest. 5 BACKGROUND1 6 On February 21, 2020, Plaintiff jumped over the Mexicali-Calexico border fence 7 near “Las Garitas.” (See Compl. ¶ 19.) Upon landing on U.S. soil, Plaintiff noticed a 8 Border Patrol vehicle make a U-turn and drive toward him at a high rate of speed. (See id.) 9 Plaintiff put his hands in the air and lied down on the ground. (See id.) The Border Patrol 10 vehicle hit Plaintiff and ran him over. (See id.; see also id. at ¶ 6.) The vehicle was on 11 Plaintiff for several seconds before the driver reversed and drove off him. (See id. ¶ 8.) As 12 a result, Plaintiff suffered many injuries, including fractured ribs and lumbar vertebrae, 13 which have required extensive medical treatment, including surgery. (See id. ¶ 9; see also 14 id. ¶¶ 15–16, 22–23.) 15 Plaintiff filed the instant action against the United States, the CBP, the United States 16 Department of Homeland Security (“DHS”), and U.S. Immigration and Customs 17 Enforcement (“ICE”) on February 18, 2022. (See generally id.) Plaintiff alleges two 18 causes of action under the Federal Tort Claims Act, (see id. ¶¶ 10–17), and for violation of 19 his Eighth and Fourteenth Amendment rights. (See id. ¶¶ 18–25.) 20 On June 1, 2022, the Court ordered Plaintiff to show cause “why the Complaint 21 should not be dismissed for failure timely to effect service pursuant to [Federal] Rule [of 22 Civil Procedure] 4(m) and Civil Local Rule 4.1(b).” (See ECF No. 3 (“OSC”) at 2.) On 23 June 8, 2022, in response to the Court’s June 1, 2022 Order to Show Cause, Plaintiff filed 24 proof of service on the CBP. (See generally ECF No. 4.) The Court therefore discharged 25 its June 1, 2022 Order to Show Cause as to the CBP and dismissed without prejudice the 26

27 1 Because Defendant makes a facial attack to the Court’s subject-matter jurisdiction, the Court “accepts 28 the truth of the plaintiff’s allegations” for purposes of this Motion. See Leite v. Crane Co., 749 F.3d 1117, 1 remaining Defendants. (See generally ECF No. 5.) The CBP filed the instant Motion on 2 July 14, 2022. (See generally ECF No. 6.) 3 LEGAL STANDARDS 4 I. Lack of Subject-Matter Jurisdiction Pursuant to Federal Rule of Civil Procedure 12(b)(1) 5

6 A party may challenge the court’s subject-matter jurisdiction through a motion filed 7 pursuant to Federal Rule of Civil Procedure 12(b)(1). See Fed. R. Civ. P. 12(b)(1); see 8 also White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Because “[f]ederal courts are 9 courts of limited jurisdiction,” “[i]t is to be presumed that a cause lies outside this limited 10 jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 11 Consequently, “the burden of establishing the contrary rests upon the party asserting 12 jurisdiction.” Id. 13 “Rule 12(b)(1) jurisdictional attacks can be either facial or factual.” White, 227 F.2d 14 at 1242. “A ‘facial’ attack accepts the truth of the plaintiff’s allegations but asserts that 15 they ‘are insufficient on their face to invoke federal jurisdiction.’” Leite, 749 F.3d at 1121 16 (quoting Safe Air for Everyone, 373 F.3d at 1039). “The district court resolves a facial 17 attack as it would a motion to dismiss under Rule 12(b)(6): Accepting the plaintiff’s 18 allegations as true and drawing all reasonable inferences in the plaintiff’s favor, the court 19 determines whether the allegations are sufficient as a legal matter to invoke the court’s 20 jurisdiction.” Id. (citing Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013)). 21 “A ‘factual’ attack, by contrast, contests the truth of the plaintiff’s factual 22 allegations, usually by introducing evidence outside the pleadings.” Id. (citing Safe Air for 23 Everyone, 373 F.3d at 1039; Thornhill Publ’g Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 24 730, 733 (9th Cir. 1979)). “When the defendant raises a factual attack, the plaintiff must 25 support her jurisdictional allegations with ‘competent proof[]’” and “prov[e] by a 26 preponderance of the evidence that each of the requirements for subject-matter jurisdiction 27 has been met.” Id. (citing Hertz Corp. v. Friend, 559 U.S. 77, 96–97 (2010); Harris v. 28 Rand, 682 F.3d 846, 851 (9th Cir. 2012)). “With one caveat, if the existence of jurisdiction 1 turns on disputed factual issues, the district court may resolve those factual disputes itself.” 2 Id. at 1121–22 (citing Safe Air for Everyone, 373 F.3d at 1039–40; Augustine v. United 3 States, 704 F.2d 1074, 1077 (9th Cir. 1983); Thornhill Publ’g, 594 F.2d at 733). “The 4 caveat is that a court must leave the resolution of material factual disputes to the trier of 5 fact when the issue of subject-matter jurisdiction is intertwined with an element of the 6 merits of the plaintiff’s claim.” Id. at 1122 n.3 (citing Safe Air for Everyone, 373 F.3d at 7 1039–40; Augustine, 704 F.2d at 1077). 8 II. Failure to State a Claim Pursuant to Federal Rule of Civil Procedure 12(b)(6) 9

10 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to 11 state a claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” 12 Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro 13 v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). “A district court’s dismissal for failure to 14 state a claim under Federal Rule of Civil Procedure 12(b)(6) is proper if there is a ‘lack of 15 a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal 16 theory.’” Id. at 1242 (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 17 Cir. 1988)). 18 “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and 19 plain statement of the claim showing that the pleader is entitled to relief.’” Ashcroft v. 20 Iqbal, 556 U.S. 662, 677–78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). “[T]he pleading 21 standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands 22 more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678 23 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “[a] 24 pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a 25 cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). 26 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 27 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 28 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads 1 factual content that allows the court to draw the reasonable inference that the defendant is 2 liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[W]here the 3 well-pleaded facts do not permit the court to infer more than the mere possibility of 4 misconduct, the complaint has alleged—but it has not ‘show[n]’—'that the pleader is 5 entitled to relief.’” Id. at 679 (second alteration in original) (quoting Fed. R. Civ. P. 6 8(a)(2)). 7 “If a complaint is dismissed for failure to state a claim, leave to amend should be 8 granted ‘unless the court determines that the allegation of other facts consistent with the 9 challenged pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight 10 Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well 11 Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). “A district court does not err in 12 denying leave to amend where the amendment would be futile.” Id. (citing Reddy v. Litton 13 Indus., 912 F.2d 291, 296 (9th Cir. 1990), cert. denied, 502 U.S. 921 (1991)). 14 ANALYSIS 15 Defendant requests dismissal with prejudice of the instant action for lack of subject- 16 matter jurisdiction pursuant to Rule 12(b)(1) and for failure to state a claim under Rule 17 12(b)(6) on three grounds: (1) Plaintiff’s FTCA cause of action must be dismissed as to the 18 CBP because the United States is the only proper defendant, (see Mot. at 2–3 (first citing 19 Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995); then citing Kennedy v. U.S. 20 Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998))); (2) Plaintiff’s second cause of action 21 must be dismissed because the United States has not waived sovereign immunity for 22 constitutional tort claims, (see id. at 3 (citing FDIC v. Meyer, 510 U.S. 471, 478 (1994); 23 Roundtree v. United States, 40 F.3d 1036, 1038 (9th Cir. 1994))); and (3) Plaintiff’s 24 demand for prejudgment interest must be dismissed because “the FTCA’s waiver of 25 sovereign immunity specifically excludes the recovery of prejudgment interest against the 26 United States.” (See Mot. at 4 (first citing 28 U.S.C. § 2674; then citing McAsey v. U.S. 27 Dep’t of Navy, 201 F. Supp. 2d 1081, 1102 (N.D. Cal. 2002); finally citing Sepulveda v. 28 United States, No. 12-cv-3008-W, 2014 WL 145233, at *3 (S.D. Cal. Jan. 10, 2014)).) 1 As for Defendant’s first argument, the Court dismissed without prejudice the United 2 States—the only proper defendant to his FTCA claim, see Kennedy, 145 F.3d at 1078; 3 Lance, 70 F.3d at 1095—because Plaintiff failed timely to serve them. (See generally ECF 4 No. 5.) Because the CBP is not a proper defendant, see, e.g., Hartman v. U.S. Customs & 5 Border Prot., No. CV142090TUCDCBCRP, 2015 WL 5731618, at *4 (D. Ariz. June 30), 6 report and recommendation adopted, 2015 WL 5718654 (D. Ariz. Sept. 30, 2015); see also 7 Allen v. Veterans Admin., 749 F.2d 1386, 1388 (9th Cir. 1984) (“Individual agencies of the 8 United States may not be sued [under the FTCA].” (citing Evans v. U.S. Veterans Admin. 9 Hospital, 391 F.2d 261, 262 (2d Cir. 1968) (per curiam), cert. denied, 393 U.S. 1040 10 (1969); United States v. Dooley, 231 F.2d 423, 424 (9th Cir. 1955))), the Court 11 DISMISSES WITH PREJUDICE Plaintiff’s FTCA cause of action as to the CBP. See, 12 e.g., Chavez v. United States, No. 3:16-CV-02099-H-KSC, 2017 WL 10592137, at *1 (S.D. 13 Cal. Jan. 6, 2017) (dismissing with prejudice FTCA claims against the Naval Commissary 14 and the Department of the Navy (citing Kennedy, 145 F.3d at 1078)). 15 Turning to Defendant’s second argument, a plaintiff may allege a constitutional 16 violation under either 42 U.S.C. § 1983 or Bivens v. Six Unknown Narcotics Agents, 403 17 U.S. 388 (1971). See Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987). 18 Plaintiff’s Complaint does not specify under what authority he brings his second cause of 19 action for violation of his Eighth and Fourteenth Amendment rights, (see generally 20 Compl.), although he does identify Section 1983 in his civil cover sheet. (See ECF No. 1- 21 1.) As Defendant correctly notes, (see Mot. at 3 n.1), “[t]here is no valid basis for a claim 22 under section 1983, in that [Plaintiff]’s allegations are against federal officials acting under 23 color of federal law [because] Section 1983 provides a remedy only for deprivation of 24 constitutional rights by a person acting under color of law of any state or territory or the 25 District of Columbia.” See Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987) 26 (citing Broadway v. Block, 694 F.2d 979, 981 (5th Cir. 1982)). To the extent Plaintiff 27 intended to assert a cause of action under Bivens, “absent a waiver of sovereign immunity, 28 an individual may not maintain a Bivens action for monetary damages against the United 1 || States” or its agencies. See id. at 356 (citing Arnsberg v. United States, 757 F.2d 971, 980 2 ||(9th Cir. 1985), cert. denied, 475 U.S. 1010 (1986)). The Court therefore DISMISSES 3 || WITH PREJUDICE Plaintiff's second cause of action for violation of his Eighth and 4 || Fourteenth Amendment rights as to the CBP. See id. at 355-56 (dismissing § 1983 and 5 || Bivens action against Veterans Affairs and its employees). 6 Finally, Defendant requests dismissal with prejudice of Plaintiff's request for 7 || prejudgment interest against the United States. (See Mot. at 4.) As Defendant notes, (see 8 the FTCA’s waiver of sovereign immunity explicitly excludes “interest prior to 9 ||judgment.” See 28 U.S.C. § 2674. The Court therefore DISMISSES WITH 10 || PREJUDICE Plaintiff's request for prejudgment interest. See, e.g., Chavez, 2017 WL 11 |} 10592137, at *2 (dismissing with prejudice prayer for pre-judgment interest against the 12 || United States). 13 CONCLUSION 14 In light of the foregoing, the Court VACATES the hearing on Defendant’s Motion; 15 || GRANTS Defendant’s Motion to Dismiss (ECF No. 6) in its entirety, both as unopposed 16 on the merits; and DISMISSES WITH PREJUDICE Plaintiff's first and second 17 || causes of action as to the CBP and Plaintiff's request for preyudgment interest. 18 IT IS SO ORDERED. 19 Dated: October 3, 2022 [5 14 bre Honorable Todd W. Robinson United States District Judge 22 23 24 25 26 27 28