Urmancheev v. United States

• Court: District Court, S.D. California
• Decided: October 30, 2023
• Docket: 3:22-cv-01039
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 A.S. URMANCHEEV, Case No.: 22-CV-1039 JLS (MMP) #A075117610, 12 ORDER DISMISSING FIRST Plaintiff, 13 AMENDED COMPLAINT WITH v. LEAVE TO AMEND PURSUANT TO 14 28 U.S.C. § 1915(e)(2)(B)

15 UNITED STATES, et al., 16 Defendants. (ECF No. 20) 17

18 Presently before the Court is Plaintiff A.S. Urmancheev’s First Amended Complaint 19 (“FAC,” ECF No. 20). Plaintiff, proceeding pro se, raises claims under the Federal Tort 20 Claims Act (“FTCA”) and California state law against Defendant the United States. For 21 the reasons provided below, the Court DISMISSES Plaintiff’s FAC WITHOUT 22 PREJUDICE. 23 BACKGROUND 24 On July 15, 2022, Plaintiff—who had been detained at the Otay Mesa Detention 25 Center (“Otay Mesa”) in San Diego, California—filed a Complaint pursuant to the 26 Administrative Procedures Act (“APA”); the FTCA; the Immigration and Naturalization 27 Act (“INA”); the First, Fourth, and Fifth Amendments to the United States Constitution; 28 and unspecified provisions of the California Constitution and California Civil Code. See 1 generally ECF No. 1 (“Compl.”). The Complaint named several defendants, including 2 the United States, the U.S. Department of Homeland Security (“DHS”), officers of the U.S. 3 Immigration and Customs Enforcement (“ICE”), Merrick Garland, and Alejandro 4 Mayorkas. Id. at 2. Plaintiff also filed a motion to proceed in forma pauperis (“IFP”) on 5 the same day he submitted his Complaint. See ECF No. 2. 6 On October 5, 2022, this Court granted Plaintiff’s IFP Motion and dismissed 7 Plaintiff’s original Complaint without prejudice. See generally ECF No. 3 (the “Order”). 8 The Court explained that a complaint filed by any civil litigant proceeding IFP was subject 9 to sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B) if it failed to pass muster 10 under Federal Rules of Civil Procedure 8 and 12(b)(6). See id. at 4–6. The Court found 11 that the Complaint failed to comply with either rule, as it contained neither the “short and 12 plain statement” required by Rule 8 nor factual allegations sufficient to state a claim for 13 which relief could be granted under Rule 12(b)(6). See id. at 5–6. 14 The Court also noted several deficiencies in each of Plaintiff’s causes of action. For 15 example, Plaintiff had failed to state INA, APA, and FTCA claims because, among other 16 issues, he had not adequately alleged exhaustion of his administrative remedies. Id. at 7. 17 Plaintiff’s constitutional claims were also lacking because the Court doubted whether 18 Plaintiff could invoke Bivens v. Six Unknown Named Agents of the Federal Bureau of 19 Narcotics, 403 U.S. 388 (1971). See id. at 10. Bivens aside, the Court found that Plaintiff 20 had failed to tie any of his constitutional claims to specific factual allegations or named 21 defendants. Id. Finally, the Court held that Plaintiff failed to state any claims under 22 California law because the Complaint was devoid of allegations to support such claims. 23 Id. at 11. 24 The Court granted Plaintiff forty-five (45) days to file an amended complaint. After 25 asking the Court to extend that deadline on multiple occasions, see ECF Nos. 8, 13, 16, 18, 26

27 1 Though Plaintiff does not clarify his detention status in his original Complaint or FAC, Plaintiff appears 28 1 Plaintiff filed his FAC. As Plaintiff continues to proceed IFP, the Court must now screen 2 the FAC pursuant to § 1915(e)(2)(B). 3 SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) 4 I. Standard of Review 5 Irrespective of whether Plaintiff is a prisoner or a civil detainee, a complaint filed by 6 litigant proceeding IFP is subject to sua sponte dismissal if it is “frivolous, [is] malicious, 7 fail[s] to state a claim upon which relief may be granted, or seek[s] monetary relief from a 8 defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 9 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the provisions of 10 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”); Lopez v. Smith, 203 F.3d 1122, 11 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits but requires a district 12 court to dismiss an [IFP] complaint that fails to state a claim.”). 13 “The standard for determining whether a plaintiff has failed to state a claim upon 14 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 15 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 16 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint to “contain 17 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 18 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. 19 Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff 20 pleads factual content that allows the court to draw the reasonable inference that the 21 defendant is liable for the misconduct alleged.” Id. Plausibility requires pleading facts 22 supporting a claim for relief, as opposed to conclusory allegations or the “formulaic 23 recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. 24 II. Plaintiff’s Allegations 25 Plaintiff claims he was arrested by ICE on April 30, 2019, despite his status as a 26 permanent resident of the United States. FAC ¶ 6. After that, Plaintiff alleges he was 27 “unlawfully held” in Otay Mesa for thirty-seven (37) months. Id. ¶ 7. 28 / / / 1 While detained, Plaintiff alleges that he was held in “solitary confinement for nine 2 months on five separation occasions.” Id. ¶ 11. Plaintiff claims these placements occurred, 3 at times, “without explanation,” “notice of charges,” or a “disciplinary hearing.” Id. ¶ 20. 4 While in solitary confinement, Plaintiff alleges he could not access mental health care— 5 despite his “well-documented mental illness”—which caused him “a great deal of mental 6 disturbance and anguish.” Id. ¶¶ 11–12. Plaintiff also alleges that ICE employees placed 7 him in solitary confinement as retaliation for having previously filed a complaint for 8 “sexual harassment and battery by a jailer.” Id. ¶ 22. Plaintiff asserts that ICE “issued 9 conflicting results of its investigations” into his sexual harassment claim, finding them 10 “substantiated” on August 4, 2020, and “unfounded” on October 7, 2020. Id. ¶ 25. 11 The FAC also details several instances of harassment Plaintiff claims to have 12 experienced while in solitary confinement. Plaintiff alleges that he was subjected to a strip 13 search after he attempted to bring his leftover food back to his quarters, id. ¶ 27; received 14 additional time in confinement based on false charges, id. ¶ 28; had his property taken, 15 including his clothes, sheets, blanket, and towel, id. ¶¶ 30, 43; was denied access to the law 16 library and his attorney, id. ¶ 30; and had his lights switched on and off at night, id. 17 Plaintiff next alleges that ICE failed to act properly after he became “gravely ill” 18 with COVID-19 in May of 2020 and December of 2021. See id. ¶¶ 35–41, 58–59. Plaintiff 19 claims ICE failed to follow guidance from the Center for Disease Control and other 20 government entities, id. ¶¶ 36–41, which caused the virus to spread rapidly, id. ¶ 59. 21 Plaintiff separately alleges that the conditions at Otay Mesa were unsanitary, as illustrated 22 by the frequent absence of hot water, id. ¶ 64; the presence of mold in the carpets and the 23 air, id. ¶ 65; and the serving of “rancid and contaminated” food (through which Plaintiff 24 contracted a bacterial infection), see id. ¶¶ 66–69. 25 Plaintiff further alleges that he informed a review committee of ICE’s “egregious 26 violations.” Id. ¶ 31. When ICE declined to address Plaintiff’s complaints, he filed appeals 27 to no avail. See id. ¶¶ 32–34. Plaintiff claims that, on August 2, 2021, ICE accused him 28 of “abuse of the grievance system” and began rejecting his complaints out of hand. 1 Id. ¶ 70. After Plaintiff presented the claims “outlined” in the FAC to the “appropriate 2 federal agency via [the] U.S. Postal Service,” said agency failed to acknowledge receipt of 3 his complaint. Id. ¶ 71. 4 Plaintiff’s FAC lists five causes of action, all against a single Defendant—the United 5 States. See generally id. Four of his claims—those for false arrest, false imprisonment, 6 negligence, and intentional infliction of emotional distress (“IIED”)—are brought pursuant 7 to the FTCA and are premised on the actions of “ICE employees or agents.” See id. ¶¶ 73– 8 84, 91–102. Plaintiff’s remaining cause of action is titled “California Civil Rights Act,” 9 though he also mentions 8 C.F.R. § 241.13 and the Fifth Amendment of the United States 10 Constitution in connection with said state law claim. See id. ¶¶ 85–90. Plaintiff seeks 11 compensatory damages in the amount of $8,483,721; legal costs; and post-judgment 12 interest. Id. ¶¶ 104–06. 13 III. Analysis 14 The Court notes that Plaintiff includes much more in the way of factual allegations 15 in the FAC as compared to his original Complaint. Nevertheless, the Court finds that the 16 FAC fails to state a claim for which relief may be granted. 17 A. Plaintiff’s FTCA Claims 18 1. Exhaustion of Administrative Remedies 19 When a party sues the federal government, subject matter jurisdiction exists only 20 when the law on which such action is based contains an explicit waiver of sovereign 21 immunity. This is because “[i]t is axiomatic that the United States may not be sued without 22 its consent and that the existence of consent is a prerequisite for jurisdiction.” United States 23 v. Mitchell, 463 U.S. 206, 212 (1983) (footnote omitted). 24 The FTCA provides such a waiver, but it is limited. The statute allows plaintiffs to 25 seek damages against the United States for certain torts committed by federal employees. 26 28 U.S.C. §§ 1346(b), 2674. But the FTCA authorizes claims only when six elements are 27 met. Brownback v. King, 141 S. Ct. 740, 746 (2021). These elements are that the claim 28 be: 1 [1] against the United States, [2] for money damages, . . . [3] for injury or loss of property, or personal injury or death [4] caused 2 by the negligent or wrongful act or omission of any employee of 3 the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if 4 a private person, would be liable to the claimant in accordance 5 with the law of the place where the act or omission occurred. 6 Id. (alterations and omissions in original) (quoting FDIC v. Meyer, 510 U.S. 471, 477 7 (1994)). Plaintiff must thus “plausibly allege all six FTCA elements not only to state a 8 claim upon which relief can be granted but also for a court to have subject-matter 9 jurisdiction over the claim.” Id. at 749. 10 The FTCA also contains an administrative claim exhaustion requirement. A plaintiff 11 cannot bring an FTCA claim in district court unless they “have first presented the claim to 12 the appropriate Federal agency.” 28 U.S.C. § 2675(a). The Ninth Circuit has interpreted 13 § 2675(a) to require a plaintiff “to file (1) a written statement sufficiently describing the 14 injury to enable the agency to begin its own investigation, and (2) a sum certain damages 15 claim.” Blair v. I.R.S., 304 F.3d 861, 868 (9th Cir. 2002) (quoting Warren v. U.S. Dep’t of 16 Interior Bureau of Land Mgmt., 724 F.2d 776, 780 (9th Cir. 1984)). Like the FTCA’s other 17 elements, 2675(a)’s requirements are jurisdictional. See id. at 865. 18 Here, the FAC fails to sufficiently allege compliance with the FTCA’s exhaustion 19 requirement. Plaintiff’s assertion that he “presented the claim outlined [in the FAC] to the 20 appropriate federal agency” is too vague. FAC ¶ 71. This is in part because Plaintiff fails 21 to identify the agency to which he sent his administrative complaint. See, e.g., Arellano v. 22 Cnty. of San Diego, No. 3:14-CV-02404-JO-KSC, 2023 WL 5986134, at *3 (S.D. Cal. 23 Sept. 14, 2023). The FAC also fails to provide enough detail about the contents of 24 Plaintiff’s administrative complaint to allow the Court to reasonably infer that he gave 25 information sufficient to allow “the agency to begin its own investigation.” Blair, 26 304 F.3d at 868. And as the FAC does not describe whether his administrative complaint 27 included a demand for a specific amount of money, the Court is unable to infer that Plaintiff 28 provided the agency with a “sum certain damages claim.” See id. 1 2. FTCA’s Intentional Tort Exception 2 Beyond the statute’s exhaustion requirement, exceptions listed in 28 U.S.C. § 2680 3 further narrow the FTCA’s waiver of sovereign immunity. Nurse v. United States, 4 226 F.3d 996, 1000 (9th Cir. 2000). If a plaintiff’s claim “fall[s] within one . . . of [those] 5 exceptions, then the federal courts lack subject matter jurisdiction to hear [their] claims.” 6 Id. 7 Plaintiff’s false arrest and imprisonment claims are barred by § 2680(h), which is 8 sometimes called the “intentional tort exception.” Levin v. United States, 568 U.S. 503, 9 507 (2013). That provision excepts “[a]ny claim arising out of assault, battery, false 10 imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, 11 misrepresentation, or interference with contract rights” from the FTCA’s waiver of 12 immunity. 28 U.S.C. § 2680(h) (emphasis added). As the United States has not waived 13 sovereign immunity for either type of claim, the FAC’s first two causes of action “seek 14 monetary relief from a defendant immune from such relief” and must be dismissed pursuant 15 to 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii). 16 Though not explicitly barred, Plaintiff’s negligence and IIED claims—as pleaded in 17 the FAC—also run afoul of § 2680(h). When evaluating the applicability of the intentional 18 tort exception, courts “look[] beyond the labels used to determine whether a proposed claim 19 is barred.” Snow-Erlin v. United States, 470 F.3d 804, 808 (9th Cir. 2006) (quoting 20 Thomas-Lazear v. FBI, 851 F.2d 1202, 1207 (9th Cir. 1988)). A claim is barred “[i]f the 21 gravamen of [a plaintiff’s] complaint is a claim for an excluded tort under § 2680(h).” Id. 22 (citation omitted). In this context, the gravamen of a complaint is defined by “the conduct 23 on which the claim is based.” Id. (quoting Mt. Homes, Inc. v. United States, 912 F.2d 352, 24 356 (9th Cir. 1990)). 25 Even an adequately stated claim for a permissible cause of action can fail under 26 § 2680(h). “[I]n sweeping language [§ 2680(h)] excludes any claim arising out of” specific 27 torts. United States v. Shearer, 473 U.S. 52, 55 (1985). The provision thus covers claims 28 that “sound” in negligence, for example, but “stem” from an excluded tort. See id. As a 1 result, a claim is barred if all of the conduct underlying it equally constitutes an excluded 2 tort and a non-excluded tort. See Sheehan, 896 F.2d at 1171. If, however, a claim is based 3 on at least some conduct that does not also support an excluded tort, it survives. See id. 4 Plaintiff does not specify which aspects of the conduct alleged in the FAC support 5 each of his specific claims. For example, Plaintiff uses the term “negligent” throughout 6 the FAC to describe conduct that would seem to support Plaintiff’s false arrest and 7 imprisonment claims. See, e.g., FAC ¶¶ 23–24, 57. Due to this ambiguity, the Court 8 cannot determine which of ICE’s specific actions were allegedly negligent, represented the 9 intentional infliction of emotional distress, or constituted false imprisonment or arrest. 10 Plaintiff thus appears to rely on the entirety of conduct alleged in the FAC to state each of 11 his FTCA claims, suggesting that his negligence and IIED claims “arise out of” his false 12 imprisonment and false arrest causes of action within the meaning of § 2680(h). Plaintiff’s 13 FTCA claims must therefore be dismissed. 14 B. Plaintiff’s Civil Rights Claims 15 Plaintiff also asserts a claim “under the California Civil Rights Act.” Id. ¶ 90. He 16 does not, however, identify the particular California statutory provision or provisions he 17 seeks to invoke. Instead, Plaintiff claims only that his rights under 8 C.F.R. § 241.13, the 18 Fifth Amendment’s Due Process Clause, and the “California Civil Act” were violated. 19 Id. ¶ 86. It is thus unclear to the Court whether Plaintiff’s third cause of action is premised 20 on federal or state law. Creating further ambiguity, Plaintiff fails to identify which 21 allegations support the FAC’s third cause of action specifically. This vagueness alone is 22 arguably sufficient to dismiss Plaintiff’s third claim under Federal Rule of Civil Procedure 23 8’s “short and plain statement requirement.” See, e.g., McHenry v. Renne, 84 F.3d 1172, 24 1178–79 (9th Cir. 1996) (affirming dismissal where “one cannot determine from the 25 complaint who is being sued, for what relief, and on what theory, with enough detail to 26 guide discovery” (emphasis added)). Nevertheless, as it has a duty to construe the FAC 27 liberally, the Court will evaluate Plaintiff’s potential federal and state regulatory, 28 constitutional, and statutory claims. 1 1. Potential Federal Law Claims 2 Presuming Plaintiff seeks to state a federal claim in his third cause of action, he fails 3 to do so. The FAC mentions 8 C.F.R. § 241.13, which “establishes special review 4 procedures for those aliens who are subject to a final order of removal and are 5 detained . . . after the expiration of the removal period.” 8 C.F.R. § 241.13(a). But the 6 FAC does not connect its allegations to Plaintiff’s immigration proceedings. See generally 7 FAC. Indeed, the reference to § 241.13 appears to be a holdover from the original 8 Complaint, which included an INA cause of action. See Compl. ¶ 10–11. The original 9 Complaint failed to state an INA claim for several reasons, Order at 7, none of which are 10 cured here, see generally FAC. Further, and as the Court noted in its prior order, a habeas 11 corpus petition under 28 U.S.C. § 2241, rather than a civil complaint, is the proper vehicle 12 for an individual in federal custody to challenge the fact of his detention. Hernandez v. 13 Campbell, 204 F.3d 861, 864 (9th Cir. 2000). 14 Plaintiff’s reference to the Fifth Amendment does not aid him. The only Defendant 15 named in the FAC is the United States. See generally FAC. And while a claim that 16 individual federal custodial officers violated a detainee’s Constitutional rights may be 17 brought under Bivens, “no Bivens-type claim lies against the United States itself.” Cato v. 18 United States, 70 F.3d 1103, 1110 (9th Cir. 1995) (emphasis added). Nor can Plaintiff rely 19 on the FTCA here, as “the United States simply has not rendered itself liable under [the 20 FTCA] for constitutional tort claims.” F.D.I.C. v. Meyer, 510 U.S. 471, 477–78 (1994); 21 see also Jachetta v. United States, 653 F.3d 898, 904 (9th Cir. 2011) (“Although these 22 claims may be characterized as constitutional torts, they are not actionable under the FTCA 23 because any liability would arise under federal rather than state law. Accordingly, the 24 FTCA does not provide a waiver of sovereign immunity for these claims.”). The FAC thus 25 does not state a Fifth Amendment claim for relief.2 26

27 2 The Court notes that Plaintiff would likely have had difficulty stating a Fifth Amendment Bivens claim 28 1 2. Potential State Law Claims 2 Finally, Plaintiff fails to state claims under California law. The FAC presents no 3 theory tying Plaintiff’s allegations to any particular provision of the California Constitution 4 or Civil Code. Even were that not the case, the Court may “decline to exercise 5 supplemental jurisdiction” over any supplemental state law claim if it “has dismissed all 6 claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c); Sanford v. Member 7 Works, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (“[I]n the usual case in which all federal- 8 law claims are eliminated before trial, the balance of factors to be considered under the 9 pendent jurisdiction doctrine . . . will point toward declining to exercise jurisdiction over 10 the remaining state-law claims.”). Because the Court has dismissed all federal claims in 11 the FAC, the Court declines to exercise supplemental jurisdiction over any state law claims 12 at this time. 13 CONCLUSION 14 For the foregoing reasons, the Court sua sponte DISMISSES Plaintiff’s First 15 Amended Complaint (ECF No. 20) for its failure to state a claim upon which relief may be 16 granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). However, because Plaintiff is 17 proceeding pro se, the Court GRANTS him leave to amend. See Rosati v. Igbinoso, 791 18 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint 19 without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely 20 clear that the deficiencies of the complaint could not be cured by amendment.’” (quoting 21 Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012))). 22 Plaintiff thus has forty-five (45) days’ leave from the date of this Order in which to 23 file a second amended complaint curing the pleading deficiencies noted above. Should he 24

25 26 explains, Bivens claims arise only in the context of specific constitutional violations. See Order at 9–11 (summarizing relevant case law). The Court expresses no opinion here on whether the allegations in the 27 FAC could support one of the established Bivens claims, such as a claim against prison officials for inadequate medical care in the prison context under the Eighth Amendment as recognized in Carlson v. 28 1 || file one, Plaintiff's second amended complaint must be complete in and of itself without 2 ||reference to his original Complaint or FAC; any claims not realleged in any second 3 |}amended complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach 4 || Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n 5 ||amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 6 || (9th Cir. 2012) (noting that claims dismissed with leave to amend that are not realleged in 7 amended pleading may be “considered waived’). If Plaintiff fails to amend within the 8 provided, the Court will enter a final Order dismissing this civil action. See Lira v. 9 || Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 10 opportunity to fix his complaint, a district court may convert the dismissal of the 11 |}complaint into dismissal of the entire action.’’). 12 IT IS SO ORDERED. 13 ||Dated: October 30, 2023 . tt 14 pee Janis L. Sammartino 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 Il