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 REGARDING AMENDED Plaintiff, 13 COMPLAINT v. 14 1) DISMISSING ALL DEFENDANTS
15 EXCEPT THE UNITED STATES UNITED STATES, et al., PURSUANT TO 28 U.S.C. 16 Defendants. § 1915(e)(2)(B) 17 2) DIRECTING U.S. MARSHAL TO 18 EFFECT SERVICE OF COMPLAINT 19 AND SUMMONS ON DEFENDANT UNITED STATES PURSUANT TO § 20 1915(d) & Fed. R. Civ. P. 4(c)(3) 21 22 (ECF No. 29) 23 24 Presently before the Court is pro se Plaintiff A.S. Urmancheev’s Second Amended 25 Complaint (“SAC,” ECF No. 29). As Plaintiff is proceeding in forma pauperis (“IFP”), 26 the SAC is subject to mandatory screening pursuant to 28 U.S.C. § 1915(e)(2). Having 27 carefully considered Plaintiff’s pleading and the law, the Court finds Plaintiff’s SAC 28 alleges plausible Federal Tort Claims Act claims for false imprisonment, negligence, and 1 infliction of emotional distress, but fails to state any other viable claim for relief against 2 Defendant United States of America and fails to state a viable claim for relief as to any 3 other named Defendants. Therefore, for the reasons explained more fully below, the Court 4 DISMISSES all Defendants other than the United States pursuant to 28 U.S.C. 5 § 1915(e)(2)(B), DIRECTS the clerk to issue a summons upon Defendant United States, 6 and ORDERS the U.S. Marshal to effect service of process upon Defendant United States 7 pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3). 8 BACKGROUND 9 On July 15, 2022, Plaintiff—who had been detained at the Otay Mesa Detention 10 Center (“Otay Mesa”) in San Diego, California1—filed a Complaint pursuant to the 11 Administrative Procedures Act (“APA”); the Federal Tort Claims Act (“FTCA”); the 12 Immigration and Naturalization Act (“INA”); the First, Fourth, and Fifth Amendments to 13 the United States Constitution; and unspecified provisions of the California Constitution 14 and California Civil Code. See generally ECF No. 1 (“Compl.”). Plaintiff also filed a 15 motion to proceed IFP on the same day. See ECF No. 2. 16 On October 5, 2022, this Court granted Plaintiff’s IFP Motion and dismissed 17 Plaintiff’s original Complaint without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) for 18 failure to pass muster under Federal Rule of Civil Procedure 8. See generally ECF No. 3 19 (“Complaint Order”). The Court also noted several deficiencies in each of Plaintiff’s 20 causes of action. For example, Plaintiff had failed to state INA, APA, and FTCA claims 21 because he had not adequately alleged exhaustion of his administrative remedies. Id. at 7. 22 Plaintiff’s constitutional claims were also found wanting because the Court doubted 23 whether Plaintiff could invoke Bivens v. Six Unknown Named Agents of the Federal Bureau 24 of Narcotics, 403 U.S. 388 (1971). See id. at 10. The Court, however, granted Plaintiff 25 forty-five (45) days to file an amended complaint. 26
27 1 Though Plaintiff does not clarify his detention status in any of his pleadings, Plaintiff appears to no 28 1 After moving for—and receiving—multiple extensions, see ECF Nos. 8, 13, 16, 18, 2 Plaintiff filed a First Amended Complaint (“FAC,” ECF No. 20) on July 14, 2023. After 3 conducting the same mandatory screening, the Court dismissed the FAC on October 30 of 4 the same year. See ECF No. 22 (“FAC Order”). Though Plaintiff had provided more 5 factual detail in his FAC with respect to some of his claims, he again failed to sufficiently 6 plead the exhaustion of administrative remedies as to his FTCA claims (the FAC did not 7 include the INA and APA causes of action contained in the original Complaint). See id. 8 at 5–6. Meanwhile, the Court found Plaintiff could not bring his Fifth Amendment claim 9 for damages against the United States itself—the only defendant named in the FAC—on 10 sovereign immunity grounds. See id. at 9. Finally, the Court explained that the FAC lacked 11 any theory of liability to support Plaintiff’s state law claims. Id. at 10. The Court again 12 granted Plaintiff leave to amend. 13 Another round of motions to extend ensued before Plaintiff filed the SAC on 14 April 30, 2024. 15 FACTUAL ALLEGATIONS 16 Plaintiff claims he was arrested by Department of Homeland Security (“DHS”) 17 Immigration and Customs Enforcement (“ICE”) officers on April 30, 2019, despite his 18 status as a permanent resident of the U.S., while he was in the custody of the California 19 Department of Corrections and Rehabilitation (“CDCR”). SAC ¶ 8. Specifically, Plaintiff 20 claims Defendants Boyd and Boone, both of ICE’s Fresno field office, “misinformed” 21 Plaintiff that he was “being detained under provisions of the INA.” Id. ¶¶ 6, 9. Boyd then 22 “illegally served” an arrest warrant and a “defective Notice to Appear” on Plaintiff. Id. 23 ¶ 10. Next, Plaintiff’s “property was illegally searched,” and some of it was ultimately 24 seized. Id. ¶ 11. 25 After the arrest, Plaintiff was purportedly “unlawfully imprisoned” in Otay Mesa for 26 thirty-seven months. Id. ¶ 12. During this time, “ICE refrained from answering 27 [P]laintiff’s questions about the propriety of [his] detention.” Id. ¶ 13. His cell was also 28 unlawfully searched on many occasions and “some property [was] seized including legal 1 documents.” Id. ¶ 14. 2 While detained, Plaintiff was held in solitary confinement on five separate occasions 3 (for a total nine months). Id. ¶ 17. During these periods of isolation, Plaintiff claims he 4 lacked access to “adequate and appropriate mental health care” despite his “well 5 documented” “struggle with . . . schizoaffective disorder.” Id. ¶ 17. As a result, Plaintiff 6 experienced “a great deal of mental disturbance and anguish.” Id. ¶ 18. And even though 7 ICE officers visited—and met weekly to review the status of—those in solitary 8 confinement, id. ¶¶ 21–22, no mental health professional ever evaluated Plaintiff’s 9 condition, id. ¶ 27. 10 Plaintiff was placed in solitary confinement without explanation or hearing on at 11 least one occasion, see id. ¶ 26, and on others solitary confinement was the result of false 12 charges being levied against Plaintiff, see id. ¶¶ 28, 32, 34, 48. On one occasion, Plaintiff 13 learned he was put in segregation as retaliation for having complained about “sexual 14 harassment and battery by a jailer.” Id. ¶ 27. Relatedly, ICE negligently handled said 15 complaint by issuing conflicting investigatory findings, deeming Plaintiff’s allegations 16 “substantiated” on August 4, 2020, and “unfounded” on October 7, 2020. Id. ¶ 31. 17 Plaintiff allegedly faced several forms of harassment while in solitary confinement. 18 Plaintiff’s “jailers” (1) subjected him “to a strip search sanctioned by ICE” for trying to 19 bring leftover food to his quarters, id. ¶ 33; (2) took Plaintiff’s “clothes, sheets, blanket,” 20 and “towel” away for two weeks, id. ¶ 49; (3) seized Plaintiff’s legal documents and denied 21 him access to the law library and his attorney’s phone calls, id. ¶¶ 14, 36; (4) “verbally 22 abused” him using “derogatory” and “demeaning terms” related to “sexual references, 23 [P]laintiff’s mental condition, and ethnic background,” id.; and (5) turned Plaintiff’s lights 24 on and off to prevent him from sleeping, id. In response to his appeal via the established 25 grievance process contesting “arbitrary segregation and abuse,” ICE concurred with the 26 jailers. Id. ¶ 51. 27 Plaintiff also alleges “ICE and the jail . . . more than doubled [P]laintiff’s cell block 28 population by transferring detainees” during the COVID-19 pandemic, id. ¶ 43, causing 1 Plaintiff to become infected with the COVID-19 virus in May 2020, and become “gravely 2 ill for about three weeks,” id. ¶ 42. ICE “failed to implement masking for both jailers and 3 detainees, social distancing, appropriate hygiene, testing and medical care and 4 monitoring,” id. ¶ 45, which caused Plaintiff to get very ill with COVID-19 for a second 5 time, id. ¶¶ 47, 64, resulting in long Covid, id. ¶ 66. 6 Plaintiff also indicates he acquired Helicobacter Pylori infection through 7 contaminated food, which caused an acute gastroesophageal reflux disease (“GERD”) that 8 he continues to suffer from. Id. ¶ 75. 9 LEGAL STANDARD 10 A complaint filed by litigant proceeding IFP is subject to sua sponte dismissal if it 11 is “frivolous, [is] malicious, fail[s] to state a claim on which relief may be granted, or 12 seek[s] monetary relief from a defendant immune from such relief.” 28 U.S.C. 13 § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding 14 “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”); Lopez v. Smith, 15 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits but 16 requires a district court to dismiss an [IFP] complaint that fails to state a claim.”). 17 “The standard for determining whether a plaintiff has failed to state a claim upon 18 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 19 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 20 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint to “contain 21 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 22 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. 23 Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff 24 pleads factual content that allows the court to draw the reasonable inference that the 25 defendant is liable for the misconduct alleged.” Id. Plausibility requires pleading facts 26 supporting a claim for relief, as opposed to conclusory allegations or the “formulaic 27 recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. 28 1 Further, courts have a duty to construe a pro se litigant’s pleadings liberally. See 2 Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). A district court 3 should grant leave to amend if it appears “at all possible that the plaintiff can correct the 4 defect.” Lopez, 203 F.3d at 1130 (quoting Balistreri v. Pacifica Police Dep’t, 5 901 F.2d 696, 701 (9th Cir. 1988)). 6 ANALYSIS 7 I. FTCA Claims 8 Plaintiff alleges claims against “ICE agents or employees while acting within the 9 scope of their respective office or employment under circumstances where the United 10 States, if a private person, would be liable to Plaintiff in accordance with the laws of the 11 State of California.” SAC ¶ 5. Accordingly, the Court construes the SAC’s first, second, 12 third, fourth, fifth, and ninth causes of action—false arrest, false imprisonment, violation 13 of the California Civil Rights Act, negligence, intentional infliction of emotional distress, 14 and violation of the California Tort Claims Act respectively—to arise under the FTCA. 15 A. Applicable Law 16 “Under settled principles of sovereign immunity, the United States, as sovereign, is 17 immune from suit, save as it consents to be sued . . . and the terms of its consent to be sued 18 in any court define that court's jurisdiction to entertain the suit.” United States v. Dalm, 19 494 U.S. 596, 608 (1990) (internal quotations omitted). “The FTCA provides a limited 20 waiver of the sovereign immunity of the United States for torts committed by federal 21 employees acting within the scope of their employment.” Nurse v. United States, 226 F.3d 22 996, 1000 (9th Cir. 2000) (citing Valdez v. United States, 56 F.3d 1177, 1179 (9th Cir. 23 1995)). “The FTCA is the exclusive remedy for tortious conduct by the United States, and 24 it only allows claims against the United States. Although such claims can arise from the 25 acts or omissions of United States agencies . . ., an agency itself cannot be sued under the 26 FTCA.” F.D.I.C. v. Craft, 157 F.3d 697, 706 (9th Cir. 1998). Thus, where a federal official 27 was acting within the scope of his office or employment, “the United States shall be 28 substituted as the party defendant.” 28 U.S.C. § 2679(d)(1). Further, the FTCA waives 1 sovereign immunity only for damages claims against the United States; the statute does not 2 subject the United States to claims for injunctive relief. See Westbay Steel, Inc. v. United 3 States, 970 F.2d 648, 651 (9th Cir. 1992). 4 However, Congress also carved out exceptions to waiver under the FTCA for certain 5 torts. Among other things, the FTCA expressly retains the United States’s sovereign 6 immunity for claims “arising out of assault, battery, false imprisonment, false arrest, 7 malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or 8 interference with contract rights.” 28 U.S.C. § 2680(h). The phrase “arising out of” is 9 interpreted broadly to include all injuries that are dependent upon one of the enumerated 10 torts having been committed. United States v. Shearer, 473 U.S. 52, 55 (1985) (“Section 11 2680(h) does not merely bar claims for assault or battery; in sweeping language it excludes 12 any claim arising out of assault or battery.”); see DaVinci Aircraft, Inc. v. United States, 13 926 F.3d 1117, 1123 (9th Cir. 2019) (“[I]f the governmental conduct underlying a claim 14 falls within an exception outlined in section 2680, the claim is barred, no matter how the 15 tort is characterized.”). Congress limited applicability of this carve-out by providing that 16 the intentional-tort exception does not apply (i.e., the United States’s sovereign immunity 17 is waived) to claims arising out of “assault, battery, false imprisonment, false arrest, abuse 18 of process, or malicious prosecution” committed by “investigative or law enforcement 19 officers.” 28 U.S.C. § 2680(h). “For the purpose of this subsection, ‘investigative or law 20 enforcement officer’ means any officer of the United States who is empowered by law to 21 execute searches, to seize evidence, or to make arrests for violations of Federal law.” Id. 22 “The FTCA holds the government liable for its torts to the same extent as a private 23 individual in similar circumstances.” Edison v. United States, 822 F.3d 510, 513–14 (9th 24 Cir. 2016). In an FTCA action, “the law of the state in which the alleged tort occurred” is 25 the applicable law. Conrad v. United States, 447 F.3d 760, 767 (9th Cir. 2006); see also 26 Jachetta v. United States, 653 F.3d 898, 904 (9th Cir. 2011) (“The FTCA authorizes private 27 tort actions against the United States ‘under circumstances where the United States, if a 28 private person, would be liable to the claimant in accordance with the law of the place 1 where the act or omission occurred.’” (citation omitted)). 2 The timely filing of an administrative claim is a jurisdictional prerequisite to the 3 bringing of a suit under the FTCA and must be affirmatively alleged in the complaint. See 4 28 U.S.C. § 2675(a); McNeil v. United States, 508 U.S. 106, 111–13 (1993); Gillespie v. 5 Civiletti, 629 F.2d 637, 640 (9th Cir. 1980). No action may be instituted under the FTCA 6 unless the claimant first presented his claim to the appropriate federal agency and either 7 the claim was finally denied by the agency in writing and sent by certified or registered 8 mail, or the agency failed to make final disposition of the claim within six months of its 9 filing. See 28 U.S.C. § 2675(a). Moreover, because the FTCA's exhaustion requirement 10 is jurisdictional in nature, it “must be strictly adhered to.” Brady v. United States, 211 F.3d 11 499, 502 (9th Cir. 2000) (citation omitted); see also Vacek v. U.S. Postal Serv., 447 F.3d 12 1248, 1250 (9th Cir. 2006). 13 B. Analysis 14 I. Exhaustion of FTCA Claims 15 First, the Court finds Plaintiff has cured the deficiencies identified in the Court’s 16 prior Orders and adequately pled exhaustion for purposes of § 1915(e)(2) screening. The 17 SAC contains more detailed allegations regarding exhaustion than did Plaintiff’s earlier 18 pleadings. Plaintiff states he sent the claims outlined in the SAC to “the ICE headquarters 19 in Washington, D.C.,” by mail on July 12, 2021. SAC ¶ 77. This mailing purportedly 20 included (1) the names of the individual officers listed as defendants in Paragraph Six of 21 the SAC, (2) detailed descriptions of said officers’ allegedly tortious conduct and Plaintiff’s 22 injuries, and (3) requested the specific sum of $8,483,721 in damages. See id. Per Plaintiff, 23 ICE “did not acknowledge the receipt of [his] claim” and “failed to make a final 24 disposition.” Id. The SAC’s allegations, taken as true, establish that Plaintiff sent a 25 reasonably detailed summary of his claims to the appropriate agency, requested a sum 26 certain demand, and waited to file this action until after ICE failed to issue a final decision 27 on his claim. 28 / / / 1 II. FTCA Intentional Tort Exception 2 Next, the Court addresses whether Plaintiff’s FTCA claims are otherwise barred by 3 the intentional tort exception. While the FTCA excludes from its operation any claim 4 arising out of false arrest and false imprisonment, see 28 U.S.C. § 2680(h), the statute 5 permits actions against the United States based on false imprisonment, or false arrest 6 arising from acts or omissions of its investigative or law enforcement officers that arise 7 within the scope of their employment, see Millbrook v. United States, 569 U.S. 50, 57 8 (2013). 9 Here, Plaintiff alleges the acts or omissions giving rise to the false imprisonment and 10 false arrest claims were performed by investigative and law enforcement officers of the 11 United States, specifically “DHS ICE officers.” SAC ¶ 6. Accordingly, Plaintiff has 12 sufficiently pled, for the purposes of § 1915(e)(2) screening, his claims arise from acts or 13 omissions of officers of the United States “who [are] empowered by law to execute 14 searches, to seize evidence, or to make arrests for violations of Federal law.” 28 U.S.C. 15 § 2680(h). 16 III. False Arrest / False Imprisonment 17 Under California law, which governs the United States’s liability for Plaintiff’s 18 claims, the torts of false arrest based on false imprisonment are not separate torts, rather, 19 false arrest is “but one way of committing false imprisonment.” Watts v. County of 20 Sacramento, 256 F.3d 886, 891 (9th Cir. 2001) (quoting Asgari v. City of Los Angeles, 937 21 P.2d 273, 277 n.3 (Cal. 1997)). “A cause of action for false imprisonment based on 22 unlawful arrest will lie where there was an arrest without process followed by 23 imprisonment.” Watts, 256 F.3d at 891 (citations omitted). 24 The elements of a claim for false imprisonment under California law are: “(1) the 25 nonconsensual, intentional confinement of a person, (2) without lawful privilege, and 26 (3) for an appreciable period of time, however brief.” Young v. County of Los Angeles, 27 655 F.3d 1156, 1169 (9th Cir. 2011) (quotation and citation omitted). With respect to 28 element two, “without lawful privilege,” a law enforcement officer is not liable for false 1 imprisonment arising out of an arrest if “[t]he arrest was lawful” or the officer “at the time 2 of the arrest, had reasonable cause to believe the arrest was lawful.” Cal. Pen. Code 3 § 847(b)(1).2 4 The SAC alleges Plaintiff is a permanent U.S. resident, who was in custody of the 5 CDCR, and was unlawfully arrested by DHS ICE Officer Boyd prior to his release date, in 6 contravention of the INA, California Penal Codes, and the California and United States 7 Constitutions. SAC ¶¶ 8–9. Plaintiff alleges DHS ICE Officer Boyd misinformed him 8 about his detention, and illegally served him with a warrant and defective Notice to Appear. 9 Id. ¶¶ 9–10. He indicates he was unlawfully imprisoned in the Otay Mesa Detention 10 Center for 37 months. Id. ¶ 12. Because these allegations, if taken as true, constitute an 11 unlawful detention, construing Plaintiff’s pro se Complaint liberally, he has adequately 12 pled his FTCA false imprisonment claim to satisfy the low threshold for surviving 13 § 1915(e)(2) screening. 14 IV. California Civil Rights Act 15 Plaintiff also raises a claim “under the California Civil Rights Act,” alleging ICE 16 employees or agents interfered or attempted to interfere with various federal and state laws 17 and the California and U.S. Constitutions. SAC ¶¶ 92–97. The Court liberally construes 18 this claim to arise under California Civil Code § 52.1 (the “Bane Act”), which “civilly 19 protects individuals from conduct aimed at interfering with rights that are secured by 20 federal or state law, where the interference is carried out ‘by threats, intimidation or 21 coercion.’” Reese v. County of Sacramento, 888 F.3d 1030, 1040 (9th Cir. 2018) (quotation 22 omitted). However, Plaintiff has not addressed the deficiencies previously identified by 23 the Court with respect to this claim. See FAC Order at 8–10. In particular, Plaintiff’s SAC 24 again does not identify which factual allegations support this claim specifically. Plaintiff’s 25
26 2 California Penal Code Section 847(b)(1) applies to FTCA claims for false arrest and false imprisonment. 27 See Lopez v. United States, No. 23-cv-04292-DMR, 2024 WL 3588013 (N.D. Cal. July 29, 2024) (first citing Cervantes v. United States, 330 F.3d 1186, 1188 (9th Cir. 2003); and then citing Galvin v. Hay, 374 28 1 general and conclusory allegations remain insufficient to state a claim. See Twombly, 2 550 U.S. at 555 & n.3 (2007) (holding that a complaint must allege enough specific facts 3 to provide both “fair notice” of the particular claim being asserted and the grounds upon 4 which [that claim] rests); Brazil v. U.S. Dep’t of Navy, 66 F.3d 193, 199 (9th Cir. 1995) 5 (finding that even pro se pleadings “must meet some minimum threshold in providing a 6 defendant with notice of what it is that it allegedly did wrong”). 7 Accordingly, the Court dismisses Plaintiff’s California Civil Rights Act claim 8 against the United States for failure to state a claim upon which relief may be granted. The 9 Court finds further leave to amend as to this claim would be futile as Plaintiff has not 10 alleged any different or new facts that could amount to a viable claim, despite prior leave 11 to do so. See Rodriguez v. Steck, 795 F.3d 1187, 1188 (9th Cir. 2015) (holding that a 12 district court may deny leave to proceed in forma pauperis where it “first provides a 13 plaintiff leave to amend the complaint or finds that amendment would be futile”) (citation 14 omitted); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (affirming 15 dismissal with prejudice where district court had instructed the pro se plaintiff regarding 16 the deficiencies in a prior order and granted leave to amend). 17 V. Negligence 18 As to Plaintiff’s negligence claims, in California, negligence is the “failure to 19 exercise the care that a reasonable person would under the circumstances.” Esteghlalian 20 v. Dep’t of Navy, No. 19-cv-01808-AJB-MSB, 2020 WL 3250611 (S.D. Cal. June 16, 21 2020) (citing Massey v. Mercy Med. Ctr. Redding, 103 Cal. Rptr. 209, at 213 (Ct. App. 22 2009)). To state a claim of negligence, Plaintiff must allege: (1) the existence of a legal 23 duty of care, (2) breach of that duty, (3) proximate cause, and (4) injury. Castellon v. U.S. 24 Bancorp, 163 Cal. Rptr. 3d 637, 640 (Ct. App. 2013). 25 Construed liberally, the SAC alleges ICE employees violated a duty of care to 26 Plaintiff by inadequately reviewing his solitary confinement orders; see SAC ¶¶ 18–20, 27 failing to provide mental health evaluations; id. ¶¶ 27, 35, 52, 59, failing to adhere to 28 guidance regarding the COVID-19 pandemic by the Center of Disease Control and other 1 California and municipal regulations; see id. ¶¶ 42–47, inadequately responding to 2 Plaintiff’s complaints of “harassment, arbitrary hearings, and deprivations;” see id. 3 ¶¶ 36–40, and failing to control the quality, quantity, and freshness of food, see id. 4 ¶¶ 72–73, and these violations caused his injuries, see id. ¶¶ 18, 47, 67, 74–75, 125. 5 Accordingly, Plaintiff’s negligence claims survive screening. 6 VI. Intentional Infliction of Emotional Distress 7 Under California law, the elements of a prima facie case for the tort of intentional 8 infliction of emotional distress are: 9 (1) extreme and outrageous conduct by the defendant with the 10 intention of causing, or reckless disregard of the probability of 11 causing, emotional distress; (2) the plaintiff's suffering severe or 12 extreme emotional distress; and (3) actual and proximate 13 causation of the emotional distress by [the] defendant's 14 outrageous conduct. 15 Sabow v. United States, 93 F.3d 1445, 1454 (9th Cir. 1996) (citing Christensen v. Superior 16 Ct., 820 P.2d 181, 202 (Cal. 1991)). “Conduct to be outrageous must be so extreme as to 17 exceed all bounds of that usually tolerated in a civilized community.” Miller v. Fortune 18 Com. Corp., 223 Cal. Rptr. 3d 133, 143 (Ct. App. 2017). 19 Here, Plaintiff alleges ICE agents or jailers continuously placed him solitary 20 confinement without explanation or hearing, on frivolous charges, or on one occasion, in 21 response to his complaint of a sexual harassment and battery against him by a jailer, without 22 adequate and appropriate mental health care, despite his struggle with “well-documented 23 mental illness, schizoaffective disorder,” and these actions caused him “mental disturbance 24 and anguish.” See SAC ¶¶ 17–19, 26–28. As such, Plaintiff has adequately pled his 25 intentional infliction of emotional distress claim to survive § 1915(e)(2) screening. 26 VII. California Torts Claims Act 27 Finally, Plaintiff alleges a claim under the California Torts Claims Act, asserting 28 “DHS ICE, and its officers named as defendants are liable to [Plaintiff] for committing 1 torts of false imprisonment and false arrest.” SAC ¶ 13. As discussed above, the Court 2 finds Plaintiff has sufficiently stated a claim for false imprisonment, for the purposes of 3 screening, against the United States. To the extent Plaintiff seeks to assert such a claim 4 against the agency or federal officials within the scope of their office or employment, the 5 FTCA provides the exclusive remedy, and the only proper Defendant is the United States. 6 F.D.I.C., 157 F.3d at 697 (“The FTCA is the exclusive remedy for tortious conduct by the 7 United States, and it only allows claims against the United States. Although such claims 8 can arise from the acts or omissions of United States agencies . . ., an agency itself cannot 9 be sued under the FTCA.”); see also Hall v. Mueller, 84 F. App’x 814 (9th Cir. 2003) 10 (“[The plaintiff’s] FTCA claims against the individual defendants fail because the only 11 proper defendant for an FTCA claim against a federal employee for actions taken within 12 the scope of employment is the United States.”). 13 Accordingly, as indicated above, the Court finds Plaintiff has stated a claim under 14 the FTCA for false imprisonment as to the United States but fails to state a claim against 15 any other Defendant. Because it is clear Plaintiff cannot state an FTCA claim against 16 Defendants other than the United States, and the Court has already found Plaintiff has 17 stated such a claim against the United States, dismissal as to other Defendants is without 18 leave to amend. See U.S. ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 19 (9th Cir. 2001) (“Futility of amendment can, by itself, justify the denial of . . . leave to 20 amend.”). 21 II. Plaintiff’s Constitutional Claims 22 Plaintiff additionally asserts claims for violations of his rights under the U.S. 23 Constitution. As an initial matter, as explained previously in the Court’s Order dismissing 24 Plaintiff’s FAC, the United States has not waived sovereign immunity for constitutional 25 tort claims. See FAC Order at 9; see also F.D.I.C., 510 U.S. at 477–78 (“[T]he United 26 States simply has not rendered itself liable . . . for constitutional tort claims.”); see also 27 Jachetta, 653 F.3d at 904 (“Although these claims may be characterized as constitutional 28 torts, they are not actionable under the FTCA because any liability would arise under 1 federal rather than state law. Accordingly, the FTCA does not provide a waiver of 2 sovereign immunity for these claims.”). As such, to the extent Plaintiff seeks to allege a 3 claim against the United States for constitutional violations, Plaintiff has failed to state a 4 claim, and such claim is dismissed without leave to amend, as amendment would be futile. 5 However, a claim that individual federal custodial officers violated a detainee’s 6 Constitutional rights may be brought under Bivens v. Six Unknown Agents of the Federal 7 Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the Court “recognized for the first 8 time an implied right of action for damages against federal officers alleged to have violated 9 a citizen’s constitutional rights.” Vega v. United States, 881 F.3d 1146, 1152 (9th Cir. 10 2018) (quoting Hernandez v. Mesa, 582 U.S. 548, 553 (2017) (citation omitted)). The 11 Supreme Court has cautioned against expanding a Bivens implied right of action into new 12 contexts beyond those already recognized. See Ziglar v. Abbasi, 582 U.S. 120, 135 (2017). 13 Since Bivens was decided, the Supreme Court has expressly recognized an implied 14 cause of action in only three types of cases: (1) Bivens itself, which recognized a cause of 15 action for violation of the Fourth Amendment’s right against unreasonable searches and 16 seizures; (2) Davis v. Passman, 442 U.S. 228 (1979), which recognized a claim for gender 17 discrimination in the employment context under the Fifth Amendment’s Due Process 18 Clause; and (3) Carlson v. Green, 446 U.S. 14 (1980), which recognized a claim against 19 prison officials for inadequate medical care in the prison context under the Eighth 20 Amendment. 21 Attempting to “expand[ ] the Bivens remedy” beyond the above contexts “is now a 22 ‘disfavored’ judicial activity” requiring caution. Abbasi, 582 U.S. at 135 (citing Iqbal, 556 23 U.S. at 675); see also Egbert v. Boule, 596 U.S. 482, 483 (2022). A context is new— 24 requiring a special factors analysis—if it is “different in a meaningful way from previous 25 Bivens cases decided by [the Supreme] Court.” Abbasi, 582 U.S. at 139. The Court in 26 Abbasi did not provide an exhaustive list of differences that are meaningful enough to make 27 a given context new, but noted the following examples: 28 1 the rank of the officers involved; the constitutional right at issue; 2 the generality or specificity of the official action; the extent of 3 judicial guidance as to how an officer should respond to the 4 problem or emergency to be confronted; the statutory or other 5 legal mandate under which the officer was operating; the risk of 6 disruptive intrusion by the Judiciary into the functioning of other 7 branches; or the presence of potential special factors that 8 previous Bivens cases did not consider. 9 Id. at 139–40. Even if a case has “significant parallels” to one of the three previously 10 recognized Bivens claims, and would only be a “modest extension,” it would still arise in 11 a new context. Thomas v. Matevousian, No. 117CV01592AWIGSAPC, 2019 WL 266323, 12 at *1 (E.D. Cal. Jan. 18, 2019) (citing Abbasi, 582 U.S. at 147). If the claim falls within a 13 previously established context, however, the Bivens remedy is available. Abbasi, 582 U.S. 14 at 139; see also Lanuza v. Love, 899 F.3d 1019, 1023 (9th Cir. 2018). 15 If a claim presents a new Bivens context, the court must then consider whether there 16 are special factors counseling against extension of Bivens in that context. Abbasi, 17 582 U.S. at 136. The Supreme Court’s Bivens jurisprudence “now make[s] clear that a 18 Bivens remedy will not be available if there are ‘special factors counselling hesitation in 19 the absence of affirmative action by Congress.’” Id. (quoting Carlson, 446 U.S. at 18). 20 Thus, “the inquiry must concentrate on whether the Judiciary is well suited, absent 21 congressional action or instruction, to consider and weigh the costs and benefits of allowing 22 a damages action to proceed.” Id. at 136. This requires the court to assess the impact on 23 governmental operations system-wide, including the burdens on government employees 24 who are sued personally, as well as the projected costs and consequences to the government 25 itself. Id. Also, “if there is an alternative remedial structure present in a certain case, that 26 alone may limit the power of the Judiciary to infer a new Bivens cause of action.” 27 Id. at 137. 28 / / / 1 A. Fifth Amendment Due Process and Fourth Amendment Claims 2 1. New Context 3 Turning to Plaintiff’s Fourth Amendment claim against Defendants Boyd and Boone 4 and Fifth Amendment claim against Defendants Mayorkas, Boyd, and Boone, the Court 5 finds such claims arise in new contexts because they are substantially and meaningfully 6 different from the three types of cases in which the Supreme Court has recognized a Bivens 7 remedy. 8 As to Plaintiff’s Fifth Amendment claim, Plaintiff’s allegations Defendants 9 Mayorkas, Boone, and Boyd violated his due process rights by making “an unlawful and 10 frivolous arrest,” see SAC ¶ 111, bear little resemblance to the Fifth Amendment due 11 process claim recognized in Davis, where the plaintiff, an administrative assistant to a U.S. 12 congressman, was terminated based on her sex, 442 U.S. at 244. 13 With respect to Plaintiff’s Fourth Amendment claim, while a claim under the Fourth 14 Amendment was recognized in Bivens, the context involved a warrantless entry into the 15 plaintiff’s home at night based on suspected drug offenses. 403 U.S. at 389. Here, 16 Plaintiff’s claim involves an arrest by ICE officials while in custody of the CDCR, 17 implicating meaningful differences as to the individual’s expectation of privacy. See Mejia 18 v. Miller, 61 F.4th 663, 668 (9th Cir. 2023) (concluding a meaningful difference existed 19 where the events did not occur in or near Plaintiff’s home, and instead on public lands 20 where Plaintiff had no reasonable expectation of privacy). Further, Plaintiff’s Fourth 21 Amendment claim involves a new category of defendants operating under a different legal 22 mandate as compared to Bivens—both meaningful differences under Abbassi. See Sheikh 23 v. U.S. Dep’t of Homeland Sec., 106 F.4th 918, 925 (9th Cir. 2024); Nunez v. Jones, 24 No. 2:18-CV00375-HL, 2023 WL 6297362, at *5 (D. Or. May 3, 2023) (“[T]here is no 25 evidence in the record that would suggest that ICE ‘has the same mandate as agencies 26 enforcing federal anti-narcotics law.’” (citations omitted)); Escamilla v. United States, 27 No. 217CV07748ODWMRWX, 2018 WL 1684307, at *10 (C.D. Cal. Apr. 4, 2018) 28 (“[E]mployees of DHS and ICE . . . are a new class of defendants who have never been 1 subjected to a Bivens suit.”). 2 Accordingly, Plaintiff’s Fourth and Fifth Amendment claims arise in new Bivens 3 contexts. 4 2. Factors Counsel Hesitation Against Extending Bivens 5 Special factors counsel hesitation in extending Bivens to Plaintiff’s claims, such as 6 an existing administrative remedy: DHS’s requirement under 8 C.F.R. § 287.10 to 7 investigate alleged violations of the standard for enforcement activities. See Egbert, 8 596 U.S. at 493 (“[O]ur cases hold that a court may not fashion a Bivens remedy if 9 Congress already has provided, or has authorized the executive to provide, ‘an alternative 10 remedial structure.’” (citation omitted)). Under 8 C.F.R. § 287.10(a), “[a]lleged violations 11 of the standards for enforcement activities established in accordance with the provisions of 12 § 287.8 shall be investigated expeditiously consistent with the policies and procedures of 13 [DHS].” Any person wishing to lodge a complaint that an officer has violated the 14 enforcement standards set out in Section 287.8 may contact the DHS Office of the Inspector 15 General. 8 C.F.R. § 287.10(b). Section 287.8 applies to “every immigration officer 16 involved in enforcement activities,” and provides in pertinent part, that “[a]n arrest shall 17 be made only when the designated immigration officer has reason to believe that the person 18 to be arrested has committed an offense against the United States or is an alien illegally in 19 the United States,” id. § 287.8(c)(2)(i). Further, the standards for enforcement activities 20 incorporate “all applicable guidelines and policies of . . . [DHS].” Id. § 287.8(g). The 21 existence of this remedy, accordingly, weighs against extending Bivens here. See Egbert 22 596 U.S. at 497–98; see also Sheikh, 106 F.4th at 928 n.9 (noting Egbert cited Section 23 287.10 as an alternative available remedy foreclosing an extension of Bivens). 24 The Court need not go further. “If there is even a single ‘reason to pause before 25 applying Bivens in a new context,’ a court may not recognize a Bivens remedy.” Egbert, 26 596 U.S. at 492 (quoting Hernandez, 589 U.S. at 102). However, here hesitation is 27 additionally warranted as Plaintiff brings his claims against DHS ICE agents responsible 28 for immigration investigation. In Egbert, the Court determined that “national security 1 [was] at issue” where a defendant federal official was “carrying out Border Patrol’s 2 mandate” of investigating unlawful cross-border activity when the alleged altercation 3 occurred. 596 U.S. at 494. The Court reaffirmed that “[m]atters intimately related to 4 foreign policy and national security are rarely proper subjects for judicial intervention.” 5 Id. (alteration in original). Further, “[i]mmigration investigations in this country . . . impact 6 the national security of the United States.” Id. (emphasis in original). Such concerns 7 provide a reason to think Congress might be better equipped to create a damages remedy. 8 See Nunez, 2023 WL 6297362, at *6 (“[N]ational security concerns provide a reason to 9 believe that Congress is at least arguably better equipped to create a damages remedy 10 against ICE officers.”). 11 The Court finds there is a “rational reason . . . to think that Congress is better suited 12 to ‘weigh the costs and benefits of allowing a damages action to proceed,’” Egbert, 596 13 U.S. at 496, in light of the existing remedial structure and that the claims are leveled against 14 DHS agents who investigate immigration. Accordingly, Plaintiff has failed to state Bivens 15 claims under the Fourth or Fifth Amendment against Defendants Boyd, Boone, and 16 Mayorkas. 17 The Court finds amendment would be futile as to these claims under Bivens, 18 considering the facts alleged and Plaintiff’s prior opportunities to amend, and accordingly 19 dismisses such claims without leave to amend. See U.S. ex rel. Lee, 245 F.3d at 1052 20 (“Futility of amendment can, by itself, justify the denial of . . . leave to amend.”). 21 As to Plaintiff’s Fourth Amendment claims that “Defendants, except for Boyd, 22 Boone, and Mayorkas, continued to execute and authorize innumerable searches of 23 plaintiff, and searches and seizures of plaintiff’s property during thirty-seven months of 24 unauthorized detention,” SAC ¶ 117, and “Defendant Cordero authorized an illegal strip 25 and cavity search of Plaintiff’s person,” id. ¶ 118, the Court does not reach whether such 26 claims could properly be brought under Bivens, as Plaintiff fails to comply with Rule 8 of 27 the Federal Rules of Civil Procedure. As to Plaintiff’s claim of “innumerable searches,” 28 he does not identify what factual allegations are tied to which specific Defendant. With 1 respect to his claim against Defendant Cordero, Plaintiff has not provided any factual 2 allegations from which the Court could draw a reasonable inference Defendant Cordero is 3 liable for the alleged misconduct. Such wholly conclusory allegations fail to state a claim. 4 See Iqbal, 556 U.S. at 678 (holding that the “mere possibility of misconduct” or 5 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting the 6 plausibility standard). 7 The Court finds leave to amend as to Plaintiff’s Fourth Amendment claims against 8 “Defendants except for Boyd, Boone, and Mayorkas” is not warranted as Plaintiff has not 9 pled new or different facts that could amount to a viable claim, despite prior leave to do so. 10 Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc, 637 F.3d 1047, 1058 (9th Cir. 2011) 11 (holding that district court has “particularly broad” discretion to dismiss action without 12 leave to amend when plaintiff has previously amended complaint) (citations omitted); see 13 also Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) (finding it “reasonable to 14 conclude that [ ] litigant simply cannot state a claim” when the litigant “knowingly and 15 repeatedly refuses to [comply with the pleading requirements of Rule 8]” despite being 16 granted leave to amend to correct deficiencies in complaint) (citation omitted; emphasis in 17 original). 18 Accordingly, Plaintiff’s Fourth and Fifth Amendment claims are dismissed without 19 leave to amend. 20 B. Fifth and Eighth Amendment Claims 21 Finally, Plaintiff alleges Defendants “ICE officers assigned to the San Diego ICE 22 Field Office,” violated Plaintiff’s Fifth and Eighth Amendment rights by authorizing his 23 placement and treatment in solitary confinement, failing to comply with regulations related 24 to COVID-19, and their approval of “functions of the jail’s kitchen,” where Plaintiff 25 contracted H-Pylori. SAC ¶¶ 121–26. The Court does not reach whether such claims arise 26 in new contexts under Bivens, and if so, whether a Bivens should be extended, as the Court 27 finds Plaintiff fails to address the deficiencies identified in the Court’s prior orders. 28 In particular, Plaintiff fails to allege how each claim is connected to any specific 1 Defendant, and accordingly has not shown any individual federal officer violated his 2 Constitutional rights. Plaintiff lists “Albence, Archimbault, Ortiz, Paramo, Gracio, 3 Dobson, Beckhelm, Kitchens, Jobe, Redcay, Ramirez, Wilcox, Kendall, Cordero, Nguen, 4 Ramirez, Brunette, Estudio, [and] Saxton,” as “DHS ICE officers of the San Diego ICE 5 ERO Office,” SAC ¶ 6, but fails to attribute factual allegations to any of these defendants.3 6 Accordingly, Plaintiff has not met the “minimum threshold in providing a defendant with 7 notice of what it is that it allegedly did wrong.” Brazil, 66 F.3d at 199. 8 Given Plaintiff’s continued failure to cure the pleading deficiencies as to these 9 claims, and the lack of any identifiable claim of relief against any of these specific 10 Defendants in the SAC, the Court finds leave to amend these claims would be futile. See 11 Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (noting that a district 12 court may deny plaintiff leave to amend if “the plaintiff had several opportunities to amend 13 [his] complaint and repeatedly failed to cure deficiencies,” Forman v. Davis, 371 U.S. 178, 14 182 (1962)). 15 As such, the Court dismisses Plaintiff’s Fifth and Eighth Amendment claims for 16 failure to state a claim, and such dismissal is without leave to amend. 17 CONCLUSION 18 For the reasons discussed, the Court: 19 1. DISMISSES all claims in Plaintiff’s Second Amended Complaint (ECF 20 No. 29) against Defendants DHS ICE Officers Boone, Boyd, Albence, Archimbault, Ortiz, 21 Paramo, Gracio, Dobson, Beckhelm, Kitchens, Jobe, Redcay, Ramirez, Wilcox, Kendall, 22 Cordero, Nguen, Ramirez, Brunette, Estudio, and Saxton without leave to amend pursuant 23 to 28 U.S.C. § 1915(e)(2). 24
25 26 3 The Court notes the SAC mentions Defendant Cordero once, however, this allegation does not appear to relate to Plaintiff’s Fifth and Eighth Amendment claims. In any event, as addressed above, the allegation 27 is conclusory and devoid of factual content required to state a claim. See Twombly, 550 U.S. at 555 (holding that plausibility requires pleading facts supporting a claim for relief, as opposed to conclusory 28 1 2. DISMISSES without leave to amend all claims against Defendant United 2 States, with the exception of the FTCA claims for false imprisonment, negligence, and 3 intentional infliction of emotional distress. 4 3. DIRECTS the Clerk of the Court to issue a summons as to Plaintiff’s Second 5 Amended Complaint (ECF No. 29) upon Defendant United States of America and forward 6 it to Plaintiff. Because Plaintiff is suing the United States, he must serve Defendant in 7 accordance with Rule 4(i). See Fed. R. Civ. P. 4(i)(1). The Clerk is hereby directed to 8 include in Plaintiff’s IFP package two separate copies of this Order, Plaintiff’s Second 9 Amended Complaint, the summons, and two blank USM Form 285s for Plaintiff’s use in 10 serving the United States via the United States Attorney for the Southern District of 11 California and the Attorney General of the United States in Washington, D.C. See Fed. R. 12 Civ. P. 4(i)(1)(A)–(B). Upon receipt of this “IFP Package,” Plaintiff must complete the 13 Form 285s as completely and accurately as possible, include addresses where the 14 Defendant may be served, see S.D. Cal. CivLR 4.1.c, and return them to the United States 15 Marshal according to the instructions the Clerk provides in the letter accompanying his IFP 16 package. 17 4. ORDERS the U.S. Marshal to serve a copy of the Second Amended 18 Complaint and summons upon Defendant United States of America as directed by Plaintiff 19 on the USM Form 285. Costs of service will be advanced by the United States. See 28 20 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 21 5. ORDERS Defendant, once served, to reply to Plaintiff’s Second Amended 22 Complaint and any subsequent pleading Plaintiff files in this matter in which Defendant is 23 named as a party within the time provided by the applicable provisions of Federal Rules of 24 Civil Procedure 12(a) and 15(a)(3). 25 6. ORDERS Plaintiff, after service has been made by the U.S. Marshal, to serve 26 upon Defendant, or if appearance has been entered by counsel, upon Defendant’s counsel, 27 a copy of every further pleading, motion, or other document submitted for the Court’s 28 consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every original 1 ||document sought to be filed with the Clerk, a certificate stating the manner in which a true 2 || and correct copy of that document has been served on Defendant or their counsel, and the 3 || date of that service. See S.D. Cal. CivLR 5.2. Any document received by the Court which 4 ||has not been properly filed with the Clerk or which fails to include a Certificate of Service 5 ||upon a Defendant, or their counsel, may be disregarded. 6 IT IS SO ORDERED. 7 ||Dated: January 10, 2025 . tt 8 jen Janis L. Sammartino 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22