Alvarado v. United States of America et al
Filing
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ORDER granting in part 14 Motion to Dismiss. The deadline for service is extended to April 13, 2015. Count 3 of the complaint is dismissed. Signed by Magistrate Judge Leslie A Bowman on 3/19/15. (See attached PDF for complete information.) (KAH)
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UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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Plaintiff,
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v.
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United States of America; U.S. Border Patrol )
Agent M. Jarmon N235, in his individual and )
official capacity; U.S. Border Patrol Agent R. )
Husted N422, in his individual and official )
capacity; and U.S. Border Patrol Agent A. Rowe )
N538, in his individual and official capacity, )
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Defendants.
______________________________________ )
Mario Alvarado,
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CV 14-2066-TUC-LAB
ORDER
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Pending before the court is the defendants’ motion to dismiss pursuant to Fed.R.Civ.P
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12(b)(5), filed on January 12, 2015, for failure to properly serve the United States. (Doc. 14)
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In the alternative, the defendants argue the complaint should be dismissed pursuant to
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Fed.R.Civ.P 12(b)(1) and 12(b)(6). (Doc. 14)
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The plaintiff in this action, Mario Alvarado, claims his civil rights were violated when
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he was stopped and detained at a U.S. Border Patrol Checkpoint on Interstate 19. He alleges
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was detained for eight hours even though no drugs were ever found in his vehicle.
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In the pending motion, the defendants argue the complaint should be dismissed because
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the plaintiff failed to properly serve the United States. They further argue the complaint fails
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to state a proper Bivins claim or a proper claim under the Federal Tort Claims Act.
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Magistrate Judge Bowman presides over this action having received the written consent
of all parties. (Doc. 24)
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The motion to dismiss will be granted in part. Alvarado failed to properly serve the
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United States, but the court will extend the time for service in the interests of justice. Upon
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construing the complaint in the light most favorable to the nonmovant, the court concludes that
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Counts 1, 2, and 4 state proper claims. Count 3, however, fails to state a cognizable claim under
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the Federal Tort Claims Act.
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Background
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In his complaint, Alvarado describes several run-ins he has had with U.S. law
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enforcement. (Doc. 1) The first occurred on July 2, 2012, when he entered the country from
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Mexico. Id. While driving north on Interstate 19, Alvarado was stopped and detained at a U.S.
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Border Patrol checkpoint. Id. A drug-detection dog “allegedly alerted to the presence of illegal
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substances,” and the defendant agents, Jarmon, Husted, and Rowe, sent him to the secondary
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inspection station. Id. They did not find any drugs, but they held him for eight hours before
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releasing him. Id. At one point, the agents summoned an Arizona Department of Public Safety
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officer to the scene. Id. That officer cited Alvarado with providing false information to law
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enforcement and possession of an open container within the passenger compartment of a motor
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vehicle on a public highway. Id.
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Alvarado again entered the United States from Mexico on August 20, 2012. Id. He was
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again detained at the Border Patrol checkpoint for an extended period of time “when the Border
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Patrol dog allegedly alerted to the presence of illegal substances.” Id. Alvarado does not
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identify the agents that detained him. Id.
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On August 30, 2012, a Border Patrol internal affairs investigator went to Alvarado’s
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home hoping to speak with him. Id. Alvarado was not home at the time, but his wife later
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called the Border Patrol and spoke with an Agent Serrano. Id. The agent said he was
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investigating a matter concerning Border Patrol agents and Alvarado. Id. Serrano, however,
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would not discuss the matter with anyone but Alvarado, and Alvarado was not willing to speak
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with him. Id.
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One month later on September 23, 2012, Alvarado was detained at the Port of Entry for
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one hour. Id. He was arrested and handcuffed because a computer code indicated he was armed
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and dangerous. Id. When the computer was checked again, a different code appeared, and
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Alvarado was released. Id. Alvarado does not identify the agents involved. Id.
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On November 2, 2012, Alvarado was again stopped and detained at the Border Patrol
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checkpoint on Interstate 19. Id. Alvarado alleges he was assaulted by Border Patrol agents and
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suffered a broken toe. Id. He was transported to a hospital in Nogales, Arizona. Id. He was
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later taken to the Border Patrol station and released. Id. Alvarado does not identify the agents
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involved. Id.
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On May 1, 2014, Alvarado filed a complaint in this court claiming the defendants’
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actions violated his civil rights. Counts 1 and 2 are brought pursuant to Bivins v. Six Unknown
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Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999 (1971). Counts 2 and 3 are brought
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pursuant to the Federal Tort Claims Act.
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In Count 1, Alvarado claims the individual defendants violated his Fourth Amendment
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rights. Id. In Count 2, he claims the individual defendants engaged in a conspiracy to deprive
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him of his civil rights. Id. In Count 3, he claims the individual defendants assaulted him. In
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Count 4, he claims the individual defendants falsely imprisoned him. Id.
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On January 12, 2015, the defendants brought the pending motion to dismiss pursuant to
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Fed.R.Civ.P 12(b)(5). (Doc. 14) They argue Alvarado failed to properly serve the United
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States. In the alternative, the defendants argue the case should be dismissed pursuant to
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Fed.R.Civ.P 12(b)(1) and 12(b)(6). (Doc. 14)
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Discussion: Service
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In their motion to dismiss, the defendants argue Alvarado failed to properly serve the
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United States pursuant to Fed.R.Civ.P. 4(i)(1)(A) and dismissal is appropriate pursuant to
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Fed.R.Civ.P. 12(b)(5).
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Under Rule 12(b)(5), if service of process was insufficient, the court has broad discretion
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to dismiss an action or retain jurisdiction and extend the time for service. Ross v. Snohomish
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County, 2014 WL 371652, 2 (W.D.Wash. 2014). Under Rule 4(m), the court must extend the
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time for service if the defendant can show good cause for the failure to serve and may extend
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the time even without such a showing. See Cook v. U.S., 2009 WL 2503644 (D. Idaho. 2009).
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In this case, the defendants argue Alvarado failed to properly serve the United States
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pursuant to Fed.R.Civ.P. 4(i)(1)(A). Specifically, they maintain Alvarado failed to “deliver[]
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or send[] a copy of the complaint and summons to the United States Attorney for the District
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of Arizona,” which is the first part of the two-part service rule applicable to the United States.
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(Doc. 14, p. 4) It appears Alvarado did comply with the second part of the two-part service rule
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by mailing a copy of the summons and complaint to the Attorney General, pursuant to
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Fed.R.Civ.P.4(i)(1)(B). (Doc. 5, p. 1) The United States obviously has the complaint in hand.
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In his response, Alvarado states that he thought he complied with Rule 4(i)(1)(A), but
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if he did not “it was a mere oversight.” (Doc. 19, p. 2) He concedes there was “some confusion
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in Plaintiff’s counsel’s office.” Id. He has provided no proof of service in accordance with the
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Rules.
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The court finds Alvarez failed to comply with Rule 4(i)(1)(A). The court further finds
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that the cause of this failure was attorney error which does not constitute good cause. Ross v.
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Snohomish County, 2014 WL 371652, 2 (W.D.Wash. 2014).
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Nevertheless, the court concludes that dismissal is not appropriate. See Umbenhauer v.
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Woog, 969 F.2d 25, 30 (3rd Cir. 1992) (“[D]ismissal of a complaint is inappropriate when there
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exists a reasonable prospect that service may yet be obtained.”). The United States received
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actual notice of the lawsuit and has suffered no prejudice from the delay. In addition, it appears
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that the statue of limitations on Alvarado’s claims might have already run. See Cholla Ready
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Mix, Inc. v. Civish, 382 F.3d 969, 974 (9th Cir. 2004). The court will, in the exercise of
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discretion, extend the time for completing service. See Efaw v. Williams, 473 F.3d 1038, 1041
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(9th Cir. 2007) (“District courts have broad discretion to extend time for service under Rule
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4(m).”).
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The defendants argue in the alternative that the complaint fails to state cognizable claims
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under either Bivins or the Federal Tort Claims Act. Accordingly, they argue the complaint
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should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) and 12(b)(1).
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Discussion: Bivins
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In Count 1 of the complaint, Alvarado claims the individual defendants violated his
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Fourth Amendment rights. (Doc. 1) In Count 2, he claims the individual defendants engaged
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in a conspiracy to deprive him of his civil rights. Id. Counts 1 and 2 are brought pursuant to
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Bivins v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999 (1971). Id. The
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defendants argue Alvarado has failed to present a proper Bivins claim and dismissal is
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appropriate pursuant to Fed.R.Civ.P. 12(b)(6). (Doc. 14)
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“A Rule 12(b)(6) motion tests the legal sufficiency of the claim.” Cook v. Brewer, 637
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F.3d 1002, 1004 (9th Cir. 2011). The claim must allege a legally cognizable theory of relief and
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include factual allegations sufficient to support that theory. Hinds Investments, L.P. v. Angioli,
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654 F.3d 846, 850 (9th Cir. 2011).
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“All allegations of material fact in the complaint are taken as true and construed in the
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light most favorable to the nonmoving party.” Clegg v. Cult Awareness Network, 18 F.3d 752,
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754 -755 (9th Cir. 1994). “However, the court is not required to accept legal conclusions cast
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in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts
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alleged.” Id.
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To survive the motion to dismiss, “[f]actual allegations must be enough to raise a right
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to relief above the speculative level . . . on the assumption that all the allegations in the
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complaint are true even if doubtful in fact.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555,
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127 S.Ct. 1955, 1965 (2007) (internal punctuation omitted). “[A] well-pleaded complaint may
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proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that
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a recovery is very remote and unlikely.” Id. at 556, 1965 (internal punctuation omitted).
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The defendants argue first that Counts 1 and 2 fail to state proper Bivins claims because
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a Bivins claim must be brought against the agents in their individual capacities, but the
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complaint effectively sues them only in their official capacities. (Doc. 14) The defendants base
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this argument on a paragraph in the complaint in which Alvarado states the agents harmed him
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“while acting in their capacity as law enforcement officers and governmental agents of the
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United States of America.” (Doc. 14, p. 7) (citing (Doc. 1, ¶ 1)) This paragraph, they argue,
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indicates that Counts 1 and 2 are brought against the agents in their official capacities. (Doc.
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14)
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The defendants are correct when they state that a Bivins claim must be brought against
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the agents in their individual capacities. Nurse v. U.S., 226 F.3d 996, 1004 (9th Cir. 2000). The
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court, however, disagrees with their reading of the complaint.
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Alvarado states in the caption of the complaint that the agents are being sued in their
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“individual and official” capacities. (Doc. 1, p. 1) This reference to the agents’ “individual”
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capacities must relate to Counts 1 and 2 because it has no application to Counts 3 and 4, which
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are brought pursuant to the Federal Tort Claims Act. The complaint further states that the
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agents “personally participated in the constitutional deprivations.” (Doc. 1, p. 2) Finally, the
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court notes that Counts 1 and 2 allege that the agents intentionally engaged in unconstitutional
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activities, which would be contrary to their officially sanctioned duties. Construing the
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complaint in the light most favorable to the nonmovant, the court concludes that the agents are
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being sued in their individual capacities in Counts 1 and 2. See, e.g., Nurse v. U.S., 226 F.3d
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996, 1004 (9th Cir. 2000) (reversing the trial court’s dismissal of the plaintiff’s Bivins claims
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where the complaint “purports to sue the individual defendants in both their individual and
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official capacities.”).
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The court concludes that the phrase “while acting in their capacity as law enforcement
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officers and governmental agents of the United States of America” was inserted in the complaint
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to bolster Counts 3 and 4. See (Doc. 1, ¶ 1) These counts allege jurisdiction pursuant to the
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Federal Tort Claims Act, which “provides a limited waiver of the sovereign immunity of the
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United States for torts committed by federal employees acting within the scope of their
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employment.” Nurse v. United States, 226 F.3d 996, 1000 (9th Cir. 2000).
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The defendants further argue Counts 1 and 2 should be dismissed because the agents are
entitled to qualified immunity.
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“Qualified immunity shields an officer from suit when [he] makes a decision that, even
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if constitutionally deficient, reasonably misapprehends the law governing the circumstances [he]
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confronted.” Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 599 (2004). An officer
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is not entitled to qualified immunity if (1) “taken in the light most favorable to the party
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asserting the injury, the facts alleged show the officer’s conduct violated a constitutional right”
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and (2) “the right violated was clearly established such that it would be clear to a reasonable
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officer that his conduct was unlawful in the situation he confronted.” Davis v. City of Las
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Vegas, 478 F.3d 1048, 1053 (9th Cir. 2007) (internal punctuation omitted). The court concludes
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that the complaint, construed in the light most favorable to the nonmovant, alleges a claim for
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which the individual defendants are not entitled to qualified immunity.
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Alvarado alleges he was seized at the checkpoint when the dog alerted to the presence
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of drugs. The vehicle was searched and no drugs were found. Nevertheless, Alvarado was
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detained for eight hours. The complaint alleges that there came a time, after the fruitless search
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for drugs, when it would have been clear to a reasonable officer that there were no drugs in the
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vehicle and probable cause to hold Alvarado no longer existed. At this point, however, the
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defendants continued to hold Alvarado. It is clearly established that a person “may not be
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arrested, or must be released from arrest, if previously established probable cause has
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dissipated.” U.S. v. Ortiz-Hernandez, 427 F.3d 567, 574 (9th Cir. 2005) (emphasis added).
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The complaint, construed in the light most favorable to the nonmovant, alleges a claim for
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which the individual defendants are not entitled to qualified immunity.
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The defendants further argue Count 1 fails to specify what each individual defendant did,
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or failed to do. (Doc. 14) They further argue the complaint fails to specify how the individual
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defendants violated Alvarado’s Fourth Amendment rights. Id.
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The court finds that Count 1, construed in the light most favorable to the nonmovant,
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sufficiently informs the defendants of what they did or did not do to violate his civil rights. On
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July 2, 2012, they held Alvarado and his vehicle after probable cause had dissipated in violation
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of his Fourth Amendment rights. The court agrees with the defendants that the allegations in
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the complaint do not support an inference that the individual defendants violated his Fourth
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Amendment rights on any other date.
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The court further finds that Count 2, sufficiently states a claim that the individual
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defendants conspired to violate his Fourth Amendment rights by holding him and his vehicle
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after probable cause had dissipated on July 2, 2012. The court agrees with the defendants that
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the allegations in the complaint do not support Alvarado’s implication that this conspiracy
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extended beyond that date.
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Discussion: Federal Tort Claims Act
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The defendants further argue Counts 3 and 4 fail to state proper claims under the Federal
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Tort Claims Act. (Doc. 14) Accordingly, they move that the court dismiss those counts
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pursuant to Fed.R.Civ.P. 12(b)(1). Id.
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A Rule 12(b)(1) motion challenges the court’s subject matter jurisdiction over the claim.
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Fed.R.Civ.P. When analyzing a facial challenge to the court’s jurisdiction, the court accepts
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as true the factual allegations contained in the complaint and draws all reasonable inferences
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in the plaintiff’s favor. Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009). Because federal
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courts are courts of limited jurisdiction, the party invoking the jurisdiction of the court has the
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burden of proof. Thornhill Pub. Co., Inc. v. General Tel. & Electronics Corp., 594 F.2d 730,
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733 (9th Cir. 1979). Here, Alvarado claims this court has jurisdiction over Claims 3 and 4
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pursuant to the Federal Tort Claims Act. (Doc. 1)
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The Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671, et seq., “provides a
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limited waiver of the sovereign immunity of the United States for torts committed by federal
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employees acting within the scope of their employment.” Nurse v. United States, 226 F.3d 996,
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1000 (9th Cir. 2000). The government accepts liability “under circumstances where the United
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States, if a private person, would be liable to the claimant in accordance with the law of the
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place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).
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In Count 3, Alvarado claims the individual defendants assaulted him. (Doc. 1) The
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defendants argue the complaint fails to state facts to support this count. (Doc. 14) They are
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correct. In the body of the complaint, Alvarado describes a single assault when he suffered a
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broken toe on November 2, 2012. He does not, however, allege any facts from which it could
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be inferred that the individual defendants were the ones who assaulted him. Count 3 does not
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state a claim under the FTCA.
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In Count 4, Alvarado claims the individual defendants falsely imprisoned him. (Doc.
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1) The defendants argue the complaint fails to state facts in support of this count. (Doc. 14)
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The court does not agree.
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False imprisonment is “the detention of a person without his consent and without lawful
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authority.” Cullison v. City of Peoria, 120 Ariz. 165, 169, 584 P.2d 1156, 1160 (1978). Here,
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Count 4 alleges the individual defendants detained Alvarado on July 2, 2012 after probable
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cause had dissipated. The allegations in the complaint support a claim for false imprisonment.
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The court agrees with the defendants that the allegations in the complaint do not support
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Alvarado’s implication that the individual defendants falsely imprisoned him on any other date.
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IT IS ORDERED that the defendants’ motion to dismiss, filed on January 12, 2015, is
granted in part. (Doc. 14)
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The deadline for service is extended to April 13, 2015.
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Count 3 of the complaint is dismissed pursuant to Fed.R.Civ.P 12(b)(1).
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DATED this 19th day of March, 2015.
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