CATHY ANN BENCIVENGO, District Judge.
On February 13, 2017, Plaintiffs filed their Amended Complaint against the United States of America and two border patrol agents, Scott Garrett and D. Gamboa, and Does 1-25. [Doc. No. 13.] On February 27, 2017, The United States, Garrett and Gamboa (hereinafter "Defendants") filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim. [Doc. No. 15.] On June 26, 2017, this Court issued an order granting in part and denying in part the motion to dismiss. [Doc. No. 18.]
On July 17, 2017, Plaintiff filed a Second Amended Complaint ("SAC"). [Doc. No. 19.] On July 31, 2017, Defendants filed a motion to dismiss the SAC. [Doc. No. 20.] On August 9, 2017, Plaintiffs filed an opposition to the motion. [Doc. No. 21.] On August 30, 2017, Defendants filed a reply to the opposition. [Doc. No. 22.] For the reasons set forth below, the motion to dismiss is
The pertinent allegations in the Amended Complaint were as follows:
Based on these allegations, Plaintiffs brought four claims under Bivens v. Six Unknown Federal Narcotics Agents ("Bivens"), 203 U.S. 388 (1971) for: (1) violation of the Fourth Amendment (for the unreasonable search and seizure of both Jose and Maria Villarruel and excessive force in the seizure of Jose Villarruel); (2) violation of the Fifth Amendment (for the deprivation of Jose, Maria and Arturo Villaruel's liberty and property without due process); (3) failure to properly train; and (4) failure to properly supervise and discipline. Plaintiffs also brought four claims under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §2671, against Defendant United States of America for: (5) intentional tort — violation of rights secured by the federal and state constitution; (6) intentional tort — false imprisonment; (7) invasion of privacy; and (8) negligence.
On June 26, 2017, this Court issued an order granting in part and denying in part the motion to dismiss the amended complaint as follows:
[Doc. No. 18 at 18.]
On July 17, 2017, Plaintiff filed a Second Amended Complaint which omitted the claims for Bivens/Fifth Amendment violation and the FTCA claim based upon Cal. Civil Code §52.1. [Doc. No. 19.] The SAC also added the following pertinent allegations:
[Doc. No. 19 at 3-5.]
On a motion to dismiss pursuant to Rule 12(b)(1), the standard to be applied varies according to the nature of the jurisdictional challenge. A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of jurisdiction contained in the complaint as insufficient on their face to demonstrate the existence of jurisdiction ("facial attack"), or may be made as a "speaking motion" attacking the existence of subject matter jurisdiction in fact ("factual attack"). Thornhill Publishing Co. v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir.1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d. Cir.1977). If the motion constitutes a facial attack, the court must consider the factual allegations of the complaint to be true. Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.1981); Mortensen, 549 F.2d at 891. If the motion constitutes a factual attack, however, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill, 594 F.2d at 733 (quoting Mortensen, 549 F.2d at 889).
In an action where the United States is named as a defendant, a court will have no subject matter jurisdiction unless a specific statute can be relied upon which waives the Government's sovereign immunity. United States v. Alabama, 313 U.S. 274, 61 S.Ct. 1011, 85 S.Ct. 1327 (1941); Soriano v. United States, 352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957). "Limitations and conditions upon which the government consents to be sued must be strictly observed and exceptions are not to be implied." Soriano, 352 U.S. at 276, 77 S.Ct. at 273. See also United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969).
Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted"— generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a)(2), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require `detailed factual allegations,' . . . it [does] demand . . . more than an unadorned, the defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the collective facts pled "allow . . . the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. There must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "`merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). The Court need not accept as true "legal conclusions" contained in the complaint, id., or other "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences," Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).
If the court grants a motion to dismiss a complaint, it must then decide whether to grant leave to amend. Under Rule 15(a), when there is no "[u]ndue delay, bad faith[,] dilatory motive on the part of the movant, ... undue prejudice to the opposing party by virtue of ... the amendment, [or] futility of the amendment," leave to amend a complaint is to be "freely given." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Generally, leave to amend is denied only if it is clear that the deficiencies of the complaint cannot be cured by amendment. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir.1980).
Defendants argue that the first cause of action should be dismissed because border patrol checkpoints are constitutionally permissible. [Doc. No. 20-1 at 7-10.] First, this is an attempt by Defendants to re-argue a matter that has already been decided by this Court, as the original motion to dismiss this cause of action was denied. [See Doc. No. 18 at 6-9.] Moreover, the cases cited by Defendants do not change the analysis, as there is no question that border patrol checkpoints that are not located at the border can be constitutional, assuming they are operated within the bounds of their narrowly circumscribed authority. United States v. Martinez-Fuerte, 428 U.S. 543, 556-567 (1976). However, Plaintiffs allege that, in this instance, the BPA had exceeded the permissible administrative purpose of inquiring into the immigration status of persons crossing the checkpoint and were engaged in general criminal investigation without reasonable suspicion or probable cause. [Doc. No. 19 at ¶11.] Such a scenario, if proven, could be unconstitutional. Id.; United States v. Soto-Zuniga, 837 F.3d 992, 1002 (9th Cir. 2016). The constitutionality of the initial stop would then affect the constitutionality of any subsequent searches, whether by canine alert or otherwise. Therefore, the motion to dismiss the first cause of action of the SAC is
Defendants argue that Plaintiffs have not provided sufficient allegations to show that Garrett acted deliberately indifferent when training and supervising Border Patrol agents, and this deliberate indifference resulted in a violation of Plaintiff's rights. [Doc. No. 20-1 at 10-11.] According to Defendants, the SAC merely concludes that Garrett knew or should have known that agents were violating people's constitutional rights, but provides no factual support as to how Garrett should have known about these violations. Id.
However, the SAC does now contain additional allegations with regard to prior knowledge. Specifically, the SAC alleges that "Garrett and Does 10 through 25 were aware of a history of false alerts by canine to lawful substances, as well as the fact that the field tests being utilized were resulting in widespread, false positive field test results when, in fact, only lawful substances, such as sugar and candy products, were involved. Said Defendants were aware that as a result thereof, a widespread pattern of citizen's constitutional rights, including the right to be free from unreasonable searches and seizure, were being violated on a widespread basis." [Doc. No. 19 at ¶51.] Finally, the SAC also alleges that "[f]aced with such information, Defendant Scott Garrett and Does 10 through 25 failed and refused to investigate the [sic] take corrective measures, provide supervision or training to stop the widespread violations of motorists constitutional rights, and took no remedial steps or action to prevent such violations of constitutional rights from continuing by employees under their supervision and control." [Doc. No. 19 at ¶54.] These allegations state a claim for deliberate indifference in failure to train and supervise. Ting v. U.S., 927 F.2d 1504, 1512 (9th Cir. 1991). Therefore, the motion to dismiss the second and third causes of action as to Garrett is
Similarly, the SAC also adds allegations that Gamboa knew his canine gave false alerts but failed to take corrective action to have the canine properly trained and used the positive alerts as a pretext to justify general criminal investigation. [Doc. No. 19 at ¶13.] Specifically, the SAC alleges Gamboa "knew that he could not rely on alerts from said canine and multiple false alerts had been provided, and therefore such alerts could not be used to form a reasonable basis for detention, or probable cause for a search and seizure of Plaintiffs." [Doc. No. 19 at ¶14.] Given that unreliable dog alerts cannot support a finding of probable cause, Florida v. Harris, 133 S.Ct. 1050, 1055 (2013), an allegation that Gamboa knowingly used an unreliable canine does support a claim for deliberate indifference in failure to train. Therefore, the motion to dismiss the second cause of action as to defendant Gamboa is
Defendant argues that Plaintiff has failed to state a claim for invasion of privacy because the searches were constitutional and, even if they were not constitutional, privacy expectations are diminished at the border. [Doc. No. 20-1 at 12-13.] First, this Court has already denied a motion to dismiss this cause of action. Moreover, the cases cited by Defendants are not on point, because this stop happened at a border patrol checkpoint away from the border, and therefore does face certain constitutional constraints. Martinez-Fuerte, 428 U.S. at 556-567. In addition, there are constitutional constraints to using unreliable canine alerts. Florida v. Harris, 133 S.Ct. at 1055. Therefore, any subsequent search of person, vehicle or property could state a claim for invasion of privacy. Hill v. National Collegiate Athletic Ass'n, 7 Cal.4th 1, 35 (1994). Accordingly, the motion to dismiss the fifth cause of action is
Defendant argues that Plaintiff Arturo Villareal lacks standing because the SAC fails to include any specific allegations demonstrating how Arturo Villareal has standing in this lawsuit. [Doc. No. 20-1 at 4-5.] Plaintiffs argue that Arturo Villareal has standing in the fifth (state constitutional invasion of privacy) and sixth (negligence) causes of action because he was a partial owner of the candy that was allegedly wrongfully seized. [Doc. No. 21 at 8-11.]
As the partial owner of the seized candy, Arturo Villareal had a privacy right to the content of the packages he jointly owned. Hill v. National Collegiate Athletic Ass'n, 7 Cal.4th at 35 (1994). Whether Arturo Villareal, or any of the plaintiffs, can obtain damages (or just injunctive relief) for such an invasion is a matter to be addressed at a later time. See Hernandez v. Hillsides, Inc., 47 Cal.4th 272, 286 (2009). Similarly, defendants had a duty of care not to damage property (without justification) belonging to a private citizen. Brown v. Ransweiler, 171 Cal.App.4th 516, 534 (2009). Thus, to the extent Plaintiff Arturo Villareal seeks damages for the actual candy that was seized, he has sufficiently alleged standing as the co-owner of said property.
For the reasons set forth above, the motion to dismiss regarding the second amended complaint [Doc. No. 20] is
