Dominic Esquibel v. United States of America, et al

Filing 26

ORDER GRANTING, without leave to amend, defendants' motion to dismiss and to strike, document 23 , striking portions of plaintiff's first amended complaint. Order signed by Magistrate Judge Sandra M. Snyder on 7/1/2015. (Rooney, M)

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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 AND MOTION TO
STRIKE

(Doc. 23)

Defendants.

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Plaintiff Dominic Esquibel’s first amended complaint (“FAC”) brings six tort causes of

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action under the Federal Tort Claims Act (“FTCA” 28 U.S.C. § 1346(b)) in response to his arrest

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outside of Sequoia National Park in December 2012. Defendants collectively move to dismiss and

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strike portions of the FAC that request attorney’s fees, punitive damages, and a trial by jury as

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barred by law. Plaintiff only opposes the motion to strike his demand for jury trial. For the

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following reasons, Defendants’ motion will be granted.

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I.

BACKGROUND
In Plaintiff’s original complaint, he alleged that he was unlawfully and violently arrested

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near the entrance of Sequoia National Park in December 2012. Plaintiff alleges that an entrance

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gate kiosk employee harassed him while he was lawfully parked in a handicapped parking space.

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Later, a park ranger arrived, violently arrested and frisked him, placed him in the ranger vehicle

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for about fifteen minutes, and released him with a citation for failure to follow a lawful order.

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Plaintiff alleged that he heard the park ranger say that the kiosk employee had lied in order to

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move Plaintiff from the parking space because she wished to reserve it for someone else.
Plaintiff brought his original complaint against the United States, the U.S. Department of

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the Interior, the U.S. National Park Service, and Sequoia and Kings Canyon National Parks. He

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also sought damages against certain federal employees, but was unaware of their names. Plaintiff

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brought two claims under 42 U.S.C. § 1983 (“section 1983”) and six tort claims pursuant to the

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“FTCA”

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Defendants moved to dismiss Plaintiff’s original complaint on the grounds that section

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1983 does not provide a right of action against the federal government, its agencies, or its officers.

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Defendants also moved to dismiss the FTCA claims as to all defendants other than the United

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States, the only proper party for money damages for actions of federal employees while acting

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with the scope of their employment. Plaintiff conceded these points. The Court granted

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Defendants’ motion to dismiss Plaintiff’s original complaint with leave to amend in order to

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convert the 1983 claim into a Bivens claim (pursuant to Bivens v. Six Unknown Named Agents,

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403 U.S. 388 (1971)) in order to maintain a claim against a federal actor. Doc. 20 at 3:27-4:1,

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4:16-19. The Court also noted, “Pursuant to the FTCA, the United States is the only proper party

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to suits for ‘injury […] resulting from the negligent or wrongful act or omission of any employee

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of the Government while acting within the scope of his office or employment.’” Doc. 20 at 4:21-

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23. The Court dismissed Plaintiff’s six tort causes of action as to all defendants other than the

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United States without leave to amend. Doc. 20 at 4:24-25.

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Plaintiff filed his first amended complaint, which alleges six tort claims under the FTCA.

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Doc. 22. There are no claims brought against any individual actor. Defendants now move to

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dismiss Plaintiff’s requests for attorney’s fees and punitive damages, which Plaintiff does not

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oppose. Defendants also move to strike Plaintiff’s demand of trial by jury as barred by law.

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Plaintiff argues that he believes the entrance kiosk employee committed separate tort acts that are

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not covered by the FTCA. However, he does not know the name of the kiosk employee and would

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like to conduct discovery and amend the complaint to add a proper cause of action against her and

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preserve his right for a jury trial. Doc. 24, FAC at 2:3-11.

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II.

LEGAL STANDARD
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.
Rule 12(f) allows the court to “strike from a pleading an insufficient defense or any

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redundant, immaterial, impertinent, or scandalous matter.” FRCP 12(f).

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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.

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DISCUSSION
Plaintiff’s claims for attorney’s fees and punitive damages against the government are

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barred by law. Anderson v. United States, 127 F.3d 1190, 1191-1192 (9th Cir. 1997)(“[A] waiver

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of sovereign immunity in the FTCA ‘is to be construed narrowly so that the government is never

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held liable for a plaintiff’s attorney fees.’”); 28 U.S.C. § 2674 (“The United States […] shall not

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be liable […] for punitive damages.”). These claims will be dismissed without leave to amend.

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Plaintiff’s request for a jury trial is also barred by law. “[A]ny action against the United

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States under section 1346 […] shall be tried by the court without a jury […].” 28 U.S.C. § 2402.

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All FTCA actions are tried to the court without a jury. Liebsack v. United States, 540 Fed. Appx.

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640, 642 fn. 1 (9th Cir. 2013).

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As mentioned, the Court’s prior order on Defendants’ motion to dismiss the original
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complaint found that, pursuant to the FTCA, “the United States is the only proper party to suits for

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‘injury […] resulting from the negligent or wrongful act or omission of any employee of the

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Government while acting within the scope of his office or employment.’” Doc. 20 at 4:21-23.

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Plaintiff’s FAC alleges assault, battery, false imprisonment, intentional infliction of emotional

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distress, negligence, and negligent infliction of emotional distress. See Doc. 22. Each of these

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causes of action alleges injury resulting from the negligent or wrongful act or omission of U.S.

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government employees and is explicitly brought “pursuant to the FTCA.” Plaintiff specifically

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alleges in his FAC that “[a]ll federal employees, including the Entrance Kiosk Employee, […]

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were employees of Defendant [United States of America] and acting in their official governmental

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employee capacity at all times alleged herein.” Doc. 22 at 2:17-19.

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As pled, Plaintiff has not stated any grounds on which he is permitted to demand a trial by

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jury. He has alleged six tort causes of action against the United States, against which the action

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must be tried without a jury. Plaintiff’s argument that he intends to amend the complaint in order

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to allege a tort action against the kiosk employee is unsustainable because he has also alleged that

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the kiosk employee was acting within the scope of her federal employment at all relevant times,

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and any such action is precluded by the FTCA. Leave to amend in order to allege a tort claim

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against the kiosk employee would be futile. Hence, Plaintiff’s demand for jury trial will be

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stricken. Should Plaintiff desire to amend his complaint, he must first file a motion requesting the

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same.

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IV.

ORDER
For the foregoing reasons, Defendants’ motion to dismiss and motion to strike portions of

Plaintiff’s first amended complaint is GRANTED without leave to amend.

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IT IS SO ORDERED.
Dated:

July 1, 2015

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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