Dominic Esquibel v. United States of America, et al

Filing 20

Order GRANTING Defendants' 11 Motion to Dismiss with leave to amend, signed by Magistrate Judge Sandra M. Snyder on 4/1/2015. (Amended Complaint due by 5/4/2015)(Rosales, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DOMINIC ESQUIBEL,

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Plaintiff,

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v.
UNITED STATES OF AMERICA; UNITED
STATES DEPARTMENT OF THE
INTERIOR; NATIONAL PARK SERVICE;
SEQUOIA AND KINGS CANYON
NATIONAL PARKS; AND DOES 1 to 50,

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CASE NO. 1:14-CV-1702 SMS
ORDER GRANTING DEFENDANTS‟
MOTION TO DISMISS WITH LEAVE TO
AMEND

(Doc. 11)

Defendants.

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Plaintiff Dominic Esquibel brings this action in response to his arrest outside of Sequoia

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National Park in December 2012. Defendants collectively move to dismiss the complaint. Plaintiff

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concedes most of Defendants‟ arguments and requests leave to file a proposed amended

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complaint, attached to his opposition. For the following reasons, Defendants‟ motion will be

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granted with leave to amend, but not as proposed.

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I.

BACKGROUND

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Plaintiff alleges in his complaint and proposed amended complaint that he was unlawfully

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and violently arrested near the entrance of Sequoia National Park on December 22, 2012. Plaintiff

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alleges that an entrance gate kiosk employee yelled at him to move his car from a handicapped

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parking space. Plaintiff alleges that the kiosk employee called the park rangers and lied to them in

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order for them to arrest Plaintiff and move him from the parking space, which the kiosk employee

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wished to reserve. Plaintiff alleges two park rangers arrived and also yelled at Plaintiff, questioned

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him, threatened him, and eventually one park ranger, identified as Ranger Parker, stated that

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Plaintiff was under arrest and placed him in handcuffs. Ranger Parker told Plaintiff‟s wife that

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Plaintiff was being taken to jail in Fresno and the car was being impounded. Ranger Parker kicked

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Plaintiff‟s feet apart and frisked him. Ranger Parker placed Plaintiff in the back of the rangers‟

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vehicle for about fifteen minutes, while the Ranger Parker discussed with the kiosk employee what

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had occurred. Ranger Parker told the other ranger that the kiosk employee had lied in order to

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move Plaintiff from the parking space. Plaintiff was released and issued a citation for failure to

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follow a lawful order. This arrest was particularly difficult and painful for Plaintiff because he

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wore an exoskeleton on his right leg and had surgery on his right arm, as a result of injuries

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sustained in combat in Afghanistan. Plaintiff had a handicapped parking permit and was lawfully

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parked in the parking space. He acted respectfully and cooperatively during and before the arrest

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although Plaintiff was hard of hearing and could not easily place his hands behind his back.

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On October 29, 2014, Plaintiff filed his complaint in this Court alleging physical injury

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and emotional distress against the United States, the U.S. Department of the Interior, the U.S.

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National Park Service, and Sequoia and Kings Canyon National Parks. He also seeks damages

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against certain federal employees, but is unaware of their names. Plaintiff brought two claims

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under 42 U.S.C. § 1983 (“1983”) and six tort claims pursuant to the Federal Tort Claims Act

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(“FTCA”), 28 U.S.C. § 1346(b), 2674 et seq.

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Defendants moved to dismiss the 1983 claims because the statute does not provide a right

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of action against the federal government, its agencies, or its officers. Defendants also moved to

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dismiss the FTCA claims as to all defendants other than the United States, the only proper party

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for money damages for actions of federal employees while acting with the scope of their

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employment. Plaintiff conceded these points and requested leave to file an attached amended

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complaint, which removes the 1983 claims, but haphazardly adds Bivens language, without

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specifically alleging a Bivens claim. Defendants argue that the proposed amendment is futile.

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II.

LEGAL STANDARD
Pursuant to Rule 8(a), a complaint must contain “a short and plain statement of the claim

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showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). “Such a statement must simply

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give the defendant fair notice of what the plaintiff‟s claim is and the grounds upon which it rests.”
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Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Court may dismiss a complaint for

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failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege “enough facts to state

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a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

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(2007). “A claim has facial plausibility when the pleaded factual content allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

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556 U.S. 662, 663 (2009). “The plausibility standard is not akin to a „probability requirement,‟

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but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting

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Twombly, 550 U.S. at 556). While factual allegations are accepted as true, legal conclusions are

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not. Iqbal, 556 U.S. at 678.
Although accepted as true, “[f]actual allegations must be [sufficient] to raise a right to

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relief above the speculative level.” Twombly, 550 U.S. at 555 (citations omitted). A plaintiff must

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set forth “the grounds of his entitlement to relief,” which “requires more than labels and

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conclusions, and a formulaic recitation of the elements of a cause of action.” Id. at 555-56

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(internal quotation marks and citations omitted).

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To the extent that the pleadings can be cured by the allegation of additional facts, the

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plaintiff should be granted leave to amend. Cook, Perkiss and Liehe, Inc. v. Northern California

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Collection Service Inc., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted). However, a court

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may deny leave to amend due to futility or legal insufficiency if the amendment would fail a

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motion to dismiss under Rule 12(b)(6). Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir.

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1988).

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III.

DISCUSSION

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A. 1983 Claims

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Section 1983 provides a right of action against individuals acting under color of state law.

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42 U.S.C. § 1983. It does not provide a right of action against federal actors. Plaintiff has only

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alleged actions by federal actors; therefore, his 1983 claims will be dismissed. It seems from

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Plaintiff‟s proposed amendment that he seeks to convert his 1983 claims to Bivens claims. Bivens

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provides a private right of action for civil rights violations by federal actors, and is considered a
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counterpart to 1983 actions. See Bivens v. Six Unknown Named Agents of Fed. Bureau of

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Narcotics, 403 U.S. 388, 392-97 (1971); Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

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Plaintiff has pled sufficient facts which, if accepted as true, state a plausible claim that

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federal officers violated his Fourth Amendment rights. Plaintiff alleges that a federal park ranger

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arrested him without basis to do so. However, as proposed, Plaintiff‟s Bivens claim or claims are

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unclear, fragmented, and insufficiently specific to pass Rule 8‟s pleading requirements. See FRCP

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8; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In particular, it is not clear from Plaintiff‟s

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proposed amendment which federal actors Plaintiff believes violated his constitutional rights in

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their individual capacities. Plaintiff also alleges that his Fifth Amendment rights were violated, but

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does not plead facts to support a Fifth Amendment violation. It is not entirely clear that Plaintiff

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even wishes to proceed against any federal actor in his or her individual capacity with a Bivens

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claim. Plaintiff has removed the civil rights cause of action from the caption page and indicates in

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his opposition that he does not object to the dismissal of all defendants other than the United

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States; yet, the proposed amendment makes several references to Bivens and argues that he is

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entitled to damages against individual federal employees. Hence, Plaintiff will not be permitted to

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file his proposed amended complaint, but Plaintiff will be granted leave to amend his 1983 claims

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in order to properly plead a Bivens claim. If he wishes to plead a Bivens claim, Plaintiff is advised

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to research the proper parties and elements to the cause of action in order to avoid further

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dismissal. Plaintiff is not required to add a Bivens claim.

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B. Tort Claims

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Pursuant to the FTCA, the United States is the only proper party to suits for “injury […]

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resulting from the negligent or wrongful act or omission of any employee of the Government

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while acting within the scope of his office or employment.” See 28 U.S.C. § 2674, 2679(a)-(b).

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Hence, Defendants‟ motion to dismiss Plaintiff‟s third through eighth causes of action as to all

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defendants other than the United States will be granted without leave to amend. Plaintiff is not

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permitted to seek attorney‟s fees against the government for these claims. “[A] waiver of

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sovereign immunity in the FTCA „is to be construed narrowly so that the government is never held

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liable for a plaintiff‟s attorney fees.‟” Anderson v. United States, 127 F.3d 1190, 1191-1192 (9th
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Cir. 1997) (quoting Jackson v. United States, 881 F.2d 707, 712 (9th Cir. 1989)).
IV.

ORDER
For the foregoing reasons, Defendants‟ motion to dismiss the complaint is GRANTED

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with leave to amend. Plaintiff may file an amended complaint in accordance with this order within

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thirty (30) days of entry of this order. If Plaintiff does not file an amended complaint within thirty

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(30) days of entry of this order, this case will proceed on Plaintiff‟s third through eighth causes of

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action only, and only as against the United States.

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IT IS SO ORDERED.
Dated:

April 1, 2015

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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