Martel v. United States of America

Filing 17

FINDINGS and RECOMMENDATIONS, recommending that defendant's 6 Motion to Dismiss be granted; action be dismissed; and case be closed, signed by Magistrate Judge Carolyn K. Delaney on 4/27/2012. These F/Rs are SUBMITTED to District Judge Garland E. Burrell, Jr.. Within 14 days after being served with these F/Rs, any party may file written Objectios with Court and serve a copy on all parties. (Marciel, M) Modified on 4/27/2012 (Owen, K).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD MARTEL,

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Plaintiff,

No. CIV S-11-3040 GEB CKD PS

vs.
UNITED STATES OF AMERICA,

FINDINGS AND RECOMMENDATIONS

Defendant.
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Defendant’s motion to dismiss came on regularly for hearing April 25, 2012.

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Plaintiff appeared in propria persona. Edward Olsen appeared for defendant. Upon review of the

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documents in support and opposition, upon hearing the arguments of plaintiff and counsel, and

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good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

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In this action, plaintiff alleges claims arising out of an encounter he had with a

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Forest Service employee, Susanne Jenkins, while he was walking on a road characterized as “old

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state highway 37.” Complaint at 2:20; 4:17-25. Plaintiff alleges that the employees of the

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Truckee Forest Service station violated his constitutional rights by making two false police

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reports against him. Plaintiff asserts claims for negligence, abuse of power, and denial of

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plaintiff’s California constitutional rights. Defendant moves to dismiss for lack of subject matter

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jurisdiction and for failure to state a claim.

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Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense,

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by motion, that the court lacks jurisdiction over the subject matter of an entire action or of

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specific claims alleged in the action. “A motion to dismiss for lack of subject matter jurisdiction

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may either attack the allegations of the complaint or may be made as a ‘speaking motion’

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attacking the existence of subject matter jurisdiction in fact.” Thornhill Publ’g Co. v. Gen. Tel.

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& Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).

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When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction

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in fact, no presumption of truthfulness attaches to the plaintiff’s allegations. Thornhill Publ’g

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Co., 594 F.2d at 733. “[T]he district court is not restricted to the face of the pleadings, but may

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review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the

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existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). When

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a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, plaintiff has

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the burden of proving that jurisdiction does in fact exist. Thornhill Publ’g Co., 594 F.2d at 733.

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In considering a motion to dismiss for failure to state a claim upon which relief

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can be granted, the court must accept as true the allegations of the complaint in question,

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Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the pleading in the light most

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favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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In order to avoid dismissal for failure to state a claim a complaint must contain

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more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements

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of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other

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words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a

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claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570.

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“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129

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S. Ct. at 1949.
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The Federal Torts Claims Act (“FTCA”) provides the exclusive remedy for torts

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committed by federal employees, as alleged in this action. 28 U.S.C. § 1346 (b)(1); see Pereira

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v. U.S. Postal Serv., 964 F.2d 873, 876 (9th Cir. 1992) (FTCA provides waiver of sovereign

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immunity only if such torts committed by private person would have given rise to liability under

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state law). Because all of the alleged acts were committed in California, the law of that state

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applies to the claims raised here. See Conrad v. United States, 447 F.3d 760, 767 (9th Cir.

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2006). With respect to the negligence claim, defendant correctly argues that this claim is in

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essence a claim that the Forest Service employees deprived plaintiff of his federal constitutional

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rights. The United States has not waived its sovereign immunity for constitutional tort claims

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and therefore there is no subject matter jurisdiction over that claim. See FDIC v. Meyer, 510

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U.S. 471, 478 (1994) (no waiver of sovereign immunity under § 1346(b) for constitutional tort

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claims.) To the extent plaintiff’s negligence claim is not based on deprivation of his federal

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constitutional rights, plaintiff fails to state a claim for negligence in that defendant’s alleged

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failure to follow federal statutes or regulations is not an actionable claim under the FTCA. See

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Love v. U.S., 60 F.3d 642, 644 (9th Cir. 1995) (breach of duty created by federal law not

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actionable under the FTCA).

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Plaintiff’s claim for abuse of process cannot lie because he does not allege that

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any of the “abusive” acts of filing allegedly false police reports involved the use of the court

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process, i.e. action taken pursuant to judicial authority. See Adams v. Superior Court, 2 Cal.

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App. 4th 521, 530 (1992) (tort of abuse of process has two elements including wrongful use of

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process and act complained of must involve use of process, which is action taken pursuant to

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judicial authority). In addition, an abuse of process claim can be made under the FTCA only

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when the alleged wrongful acts or omissions were made by investigative or law enforcement

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officers. 28 U.S.C. § 2680(h). Susanne Jensen is a Forest Protection Officer, and she does not

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have authority to execute searches, seize evidence, or make arrests. See Jensen Decl. As such,

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under section 2680(h), she is not considered to be investigative or law enforcement officer and
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sovereign immunity has not been waived for an abuse of process claim arising out of her

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conduct.

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Plaintiff’s third claim for relief is for deprivation of plaintiff’s rights under the

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California Constitution. Here plaintiff complains that his rights to privacy, due process, and to

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be free from unreasonable searches were infringed. However, violation of the due process and

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unreasonable seizure provisions of the California Constitution, Art. I, §§ 7 and 13, do not give

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rise to tort claims and thus are not actionable under the FTCA. See Kaltzberg v. Regents of the

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University of California, 29 Cal. 4th 300 (2002) (no tort action for violation of Art. I, § 7); see

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also Brown v. County of Kern, 2008 WL 544565, at *17 (E. D. Cal. Feb. 26 2008) (no damages

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claim for violation of section 7 or 13). With respect to a claim for violation of his right to

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privacy, although California recognizes a tort claim for violation of the rights conferred under

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Art. I, §1, plaintiff here makes a conclusory allegation that his right to privacy was violated and

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his opposition simply reasserts this allegation. In the absence of any factual allegations to

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support this claim, the claim under the California Constitution should be dismissed.

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In the opposition and at hearing on this matter, plaintiff advanced no arguments

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which would suggest amendment would be anything other than futile. The motion to dismiss

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should therefore be granted without leave to amend.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Defendant’s motion to dismiss (dkt. no. 6) be granted;

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2. This action be dismissed and the case be closed.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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fourteen days after being served with these findings and recommendations, any party may file

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written objections with the court and serve a copy on all parties. Such a document should be

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captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the

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objections shall be served and filed within seven days after service of the objections. The parties
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are advised that failure to file objections within the specified time may waive the right to appeal

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the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: April 27, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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