Zocima Barragan v. David Steiner, in his official capacity as Postmaster General

Opinion

1 2 3 4 5 6 7 10 11 ZOCIMA BARRAGAN, Case No.: 3:24-cv-01073-JES-DDL

12 Plaintiff, ORDER: 13 v. (1) GRANTING MOTION TO 14 DAVID STEINER, in his official capacity DISMISS; and as Postmaster General,1 15 Defendant. (2) DENYING MISCELLANEOUS 16 MOTIONS 17 18 [ECF Nos. 46, 55, 56, 58, 63] 19 20 Before the Court is Defendant David Steiner’s (“Defendant”) motion to dismiss 21 Plaintiff Zocima Barragan’s (“Plaintiff”) amended complaint. ECF No. 46 (“Mot.”). 22 Plaintiff filed two oppositions, and Defendant filed three reply briefings. ECF Nos. 50, 52, 23 57, 60, 61. On February 4, 2026, the Court heard oral argument on the matter. ECF No. 62. 24 Plaintiff filed several ancillary motions, a motion for order to request the appearance of 25

26 1 Plaintiff named Louis DeJoy, who was the Postmaster General when Plaintiff filed her Complaint on 27 June 20, 2024, as a Defendant in this action. See ECF No. 1 at 1. Louis DeJoy resigned effective March 25, 2025, and Doug Tulino was appointed as Acting Postmaster General from March 25, 2025, to July 13, 28 1 U.S. Marshal Chief and Chief Judge (ECF No. 55), motions for status update (ECF Nos. 2 56, 58), and emergency motion to avoid irreparable harm (ECF No. 63). For the reasons 3 stated below, the Court GRANTS the motion to dismiss without prejudice and DENIES 4 the ancillary motions. 6 In Plaintiff’s original complaint, she avers that she is a United States Postal Service 7 (“USPS”) employee that works at the USPS MLS Facility in San Diego, CA. ECF No. 1 8 at 2. In the amended complaint, Plaintiff alleges that on June 2, 2023, USPS managers Irene 9 Sherwood (“Sherwood”) and Cherry Ngo (“Ngo”) failed to appear in San Diego Superior 10 Court for a restraining order hearing. ECF No. 44 (“FAC”) at 2. On June 2, 2023, after 11 returning to work, Sherwood placed Plaintiff on a fraudulent USPS disciplinary action 16.7 12 threat to self and others. Id. Plaintiff alleges her First Amendment rights were violated 13 when she initially filed a formal complaint of abuse and discrimination that was committed 14 on USPS federal property by USPS management and that she faced retaliation with 15 disciplinary action and fraudulent documentation by USPS senior management. Id. at 3. 16 Plaintiff alleges Defendants gathered “as many falsified statement as possible from friends 17 and relatives at work to defame the plaintiff on USPS Federal Property.” Id. Additionally 18 Plaintiff alleges she was stalked by a male employee after work, “most likely sent by 19 Sherwood or Ngo.” Id. at 4. Plaintiff also alleges that her First Amendment right to freedom 20 of speech was violated when she was vocal about her vehicle being vandalized on USPS 21 property. Id. 22 Additionally, Plaintiff alleges her Fourth Amendment right was violated when 23 Defendant violated her “invasion of privacy,” by wiretapping her personal cell phone and 24 personal laptop. Id. at 5. Plaintiff alleges that USPS Postal Inspection Services tried to 25 intimidate her instead of apprehending the management representatives who caused her 26 harm. Id. Further, Plaintiff alleges that Defendants made false statements about her 27 knowing the statements were false and would lead to misrepresentation during her EEO 28 investigation. Id. at 6. The defendants “willfully and knowingly sign and date the EEO 1 Affidavit under the Declaration of Perjury line that they were not aware of any of my 2 claims.” Id. Plaintiff alleges that USPS emails clearly showed that defendants were aware 3 and intended to lie and hide their actions and direct harm during the EEO investigation. Id. 4 at 7. Further, Plaintiff alleges that she was granted the right to sue in federal district court 5 by EEO Judge Connie Liem. Id. Plaintiff alleges that she suffered pain and suffering 6 leading to hospitalization due to stress colitis and stress muscular tension, possible nerve 7 damage and permanent psychological trauma as a result of defendants’ harassment and 8 retaliation. Id. Plaintiff brings three causes of action: (1) fraud, (2) negligence, and (3) tort. 10 A. Federal Rule of Civil Procedure 12(b)(1) 11 Federal courts are courts of limited jurisdiction and thus have an obligation to 12 dismiss claims for which they lack subject matter jurisdiction. Demarest v. U.S., 718 F.2d 13 964, 965-66 (9th Cir. 1983). The burden of establishing subject matter jurisdiction is on the 14 party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 15 (1994). 16 A party may challenge a complaint under FRCP 12(b)(1) for lack of subject matter 17 jurisdiction. Pursuant to Rule 12(b)(1), a party may seek dismissal of an action for lack of 18 subject matter jurisdiction by asserting a facial or factual challenge. Fed. R. Civ. P. 19 12(b)(1); Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where the 20 moving party asserts a facial attack, the challenger asserts that the allegations contained in 21 a complaint are insufficient on their face to invoke federal jurisdiction. Id. By contrast, in 22 a factual attack, the challenger disputes the truth of the allegations that, by themselves, 23 would otherwise invoke federal jurisdiction. Id. 24 Where the moving party asserts a facial challenge, the court limits its inquiry to the 25 allegations set forth in the complaint. Meyer, 373 F.3d at 1039. In such a challenge, the 26 court considers the complaint’s allegations to be true and draws all reasonable inferences 27 in the plaintiff’s favor. See Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009). 28 // 1 B. Federal Rule of Civil Procedure 12(b)(6) 2 A motion to dismiss under Federal Rule of Civil Procedure (“FRCP”) 12(b)(6) for 3 failure to state a claim tests the legal sufficiency of a plaintiff’s claim. Navarro v. Block, 4 250 F.3d 729, 732 (9th Cir. 2001). When considering the motion, the court must accept as 5 true all well-pleaded factual allegations in the complaint. Bell Atlantic Corp. v. Twombly, 6 550 U.S. 544, 555 (2007). The court need not accept as true legal conclusions cast as factual 7 allegations. Id.; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[t]hreadbare recitals of the 8 elements of a cause of action, supported by mere conclusory statements” are insufficient). 9 A complaint must “state a claim for relief that is plausible on its face.” Twombly, 10 550 U.S. at 570. To survive a motion to dismiss, a complaint must include non-conclusory 11 factual content. Id. at 555; Iqbal, 556 U.S. at 679. The facts and the reasonable inferences 12 drawn from those facts must show a plausible—not just a possible—claim for relief. 13 Twombly, 550 U.S. at 556; Iqbal, 556 U.S. at 679; Moss v. U.S. Secret Service, 572 F.3d 14 962, 969 (9th Cir. 2009). The focus is on the complaint, as opposed to any new facts alleged 15 in, for example, the opposition to a defendant’s motion to dismiss. See Schneider v. 16 California Dep’t of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), reversed and 17 remanded on other grounds as stated in 345 F.3d 716 (9th Cir. 2003). “Determining 18 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 19 requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 20 556 U.S. at 679. The “mere possibility of misconduct” or “unadorned, the defendant- 21 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; 22 see also Moss, 572 F.3d at 969. 24 Defendant moves to dismiss Plaintiff’s fraud claim on immunity grounds. Mot. at 4. 25 Defendant moves to dismiss the negligence and tort claims for lack of subject matter 26 jurisdiction arguing that Plaintiff has failed to file an administrative claim with the relevant 27 federal agency prior to filing suit. Id. at 4-5. Plaintiff filed two oppositions and does not 28 address either of Defendant’s arguments for dismissal. See generally ECF Nos. 50, 60. 1 A. Sovereign Immunity 2 The Federal Tort Claims Act (“FTCA”) enables private citizens to bring tort claims 3 against the United States for the negligent performance of governmental functions. In 4 general, the United States enjoys sovereign immunity, which means that it cannot be sued 5 “unless it has expressly waived such immunity and consented to be sued.” Dunn & Black, 6 P.S. v. United States, 492 F.3d 1084, 1087-88 (9th Cir. 2007); FDIC v. Meyer, 510 U.S. 7 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government 8 and its agencies from suit.”). 9 The United States has not waived its sovereign immunity with respect to fraud and 10 misrepresentation claims. See Pauly v. U.S. Dep’t of Agric., 348 F.3d 1143, 1151-52 (9th 11 Cir. 2003); see also Turner v. United States Postal Serv., No. 219CV1029KJMKJNPS, 12 2019 WL 3216894, *2 (E.D. Cal. July 17, 2019) (dismissing fraud claim against the Postal 13 Service because “Plaintiff’s claim of wrongful conduct against the USPS falls within the 14 provisions of the Federal Tort Claims Act.”). Therefore, the Court GRANTS the motion 15 to dismiss the fraud claim without leave to amend as amendment would be futile. 16 B. Subject Matter Jurisdiction 17 While the FTCA contains a mechanism by which Plaintiff could potentially sue the 18 United States for negligence or another tort, the FTCA includes a requirement that Plaintiff 19 file an administrative claim with the relevant agency prior to filing suit in district court. 28 20 U.S.C. § 2675(a) (“An action shall not be instituted upon a claim against the United States 21 … unless the claimant shall have first presented the claim to the appropriate Federal agency 22 and his claim shall have been finally denied by the agency in writing and sent by certified 23 or registered mail.”). Failure to comply with this requirement renders any tort claim against 24 the United States legally infirm. See Brady v. U.S., 211 F.3d 499, 502 (9th Cir. 2000). 25 Defendant makes a facial challenge and argues that the court lacks jurisdiction to 26 hear the negligence and tort claim, because Plaintiff has not alleged that she filed an 27 administrative claim with the relevant agency prior to filing suit in district court. See Mot. 28 at 4-5; 28 U.S.C. § 2675(a). The FAC does not plead that Plaintiff filed an administrative 1 claim pursuant to the FTCA prior to filing this action. See generally FAC. Further, at oral 2 argument, Plaintiff admitted that she had not filed an FTCA administrative claim prior to 3 filing this action. Therefore, the Court lacks jurisdiction to hear the negligence and tort 4 claims. See Brady, 211 F.3d at 502. The Court GRANTS the motion to dismiss the 5 negligence and tort claims without leave to amend as amendment would be futile. 6 C. Miscellaneous Motions 7 Plaintiff has filed several motions, a Motion for Order to Request the Appearance of 8 U.S. Marshal Chief and Master Federal Judge (ECF No. 55), Motion for Status Update 9 (ECF No. 56), Motion for Status Update (ECF No. 58), and Emergency motion (ECF No. 10 63). In the motions, Plaintiff alleges a vehicle tampering incident by an “undercover agent” 11 presumably at the employment of the USPS that she reported to the San Diego Police 12 Department and a hit and run collision in which her vehicle was damaged. ECF Nos. 55, 13 56 at 2, 58. She attached photos to the Motions for Status Updates. See generally ECF Nos. 14 56, 58. Those incidents are not alleged as causes of action in this case and the Court has no 15 jurisdiction to address them in this case. In the Emergency Motion, Plaintiff addresses it to 16 the Ninth Circuit after the oral argument on February 4, 2026, in which the Court gave a 17 tentative ruling that it would dismiss the three causes of action alleged. ECF No. 63. The 18 Court interprets these motions as a request for appointed counsel, which the Court has 19 previously denied and continues to deny for the same reasons previously stated in ECF No. 20 10. Further, the Court interprets the Emergency Motion as an attempt to seek appellate 21 review of the Court’s tentative ruling of dismissal discussed at oral argument. Since, the 22 Court had not formally entered an order dismissing the claims alleged in the FAC, the 23 attempt to seek appellate review is premature. Each of the aforementioned miscellaneous 24 motions are DENIED. 26 For the reasons set forth above, the Court GRANTS Defendant’s motion to dismiss 27 the fraud, negligence and tort claims without leave to amend. At oral argument, Plaintiff 28 indicated that she filed an administrative claim with the Equal Opportunity Commission 1 |}and received a right to sue letter and could file a cause of action for employment 2 discrimination. The Court grants Plaintiff one final opportunity to file an amended 3 ||complaint to allege an employment discrimination cause of action. In the event that 4 || Plaintiff elects to file an amended complaint, she must do so within thirty (30) days of this 5 Order. Any amended complaint must be complete in itself, without reference to any prior 6 || complaints. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., 7 ||896 F.2d 1542, 1546 (9 Cir. 1989) (“[A]n amended pleading supersedes the original.”). 8 ||The Court cautions Plaintiff that failure to file an amended complaint will result in 9 || dismissal of this case with prejudice. 11 ||Dated: April 7, 2026 12 Sa— Sin, 13 Honorable James E. Sunmons Jr. 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28