Mendez Jimenez v. United States of America et al

Filing 24

ORDER signed by District Judge John A. Mendez on 2/8/2018 ORDERING 16 the Court GRANTS with Prejudice the United States' Motion to Dismiss Plaintiff's FTCA claim predicated on the failure to provide medical care and actions by the County and County Officers. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LUIS ALBERTO MENDEZ JIMENEZ,

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2:17-cv-01914-JAM-KJN

Plaintiff,

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No.

v.

ORDER GRANTING DEFENDANT UNITED
STATES OF AMERICA’S MOTION TO
DISMISS

UNITED STATES OF AMERICA;
COUNTY OF SACRAMENTO; and
DOES 1-20, inclusive,

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Defendants.

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Luis Alberto Mendez Jimenez (“Plaintiff”) sued the United

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States of America and the County of Sacramento for their

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respective roles in Plaintiff’s detention, attempted suicide, and

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resulting injuries.

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“United States”) moves to dismiss Plaintiff’s claims against it

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on jurisdictional grounds.

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Motion to Dismiss is granted. 1

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///

Defendant United States of America (the

For the reasons set forth below, the

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for January 30, 2018.
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I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

The following facts are taken as true for the purposes of
this motion:

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On August 15, 2016, Immigration Customs Enforcement (“ICE”)

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officers apprehended Plaintiff in San Jose, California, on

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suspicion of being present in the United States without

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authorization.

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¶ 10.

The officers detained him in San Jose, California.

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¶ 11.

Plaintiff signed a voluntary departure form on August 15,

First Amended Complaint (“FAC”), ECF No. 11-1,
Id. at

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2016, before Deportation Officer J. Freer.

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given a Notice to Appear form by Deportation Officer Galvez for

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an unscheduled hearing before an Immigration Judge.

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his arrest, Plaintiff informed the ICE officers of his

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psychological condition and previous incidents of self-harm.

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He asked permission to go to his home to retrieve his psychiatric

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medications, but the officers denied the request.

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Id.

Plaintiff was

Id.

Upon

Id.

Id.

Sometime after his arrest on August 15, 2016, Plaintiff was

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transferred and placed into immigration detention at Rio

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Consumnes Correctional Center (“RCCC”) in Elk Grove.

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¶ 12.

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history, treatment, and past incidents of self-harm.

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¶ 13.

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taking it.

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Plaintiff attempted to commit suicide by jumping from an elevated

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location and striking his head and upper body on the surface

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below.

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injuries including tetraplegia, neurogenic bowel and bladder,

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spinal cord injuries, factures at and near the C-6 vertebra,

Id. at

During his intake he informed staff of his psychological
Id. at

He informed them of his medication and need to continue
Id.

On October 23, 2016, while housed at RCCC,

Id. at ¶ 15.

As a result, Plaintiff suffers from

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scalp lacerations, functional deficits, respiratory failure,

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traumatic brain injury, and other injuries.

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Id.

Plaintiff sued the United States of America, the County of

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Sacramento, and individual officers (Does) in this Court under

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the Federal Tort Claims Act (the United States), Fifth Amendment

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(individual U.S. Officers), California Tort Claims Act (County of

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Sacramento), and 42 U.S.C. § 1983 (individual County Officers).

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The parties filed a Stipulation for Leave to File a First Amended

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Complaint and the FAC was deemed filed upon the Court’s signing

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of the Order.

ECF Nos. 11 & 12.

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II.

OPINION

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A.

Request for Judicial Notice

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Plaintiff seeks judicial notice of excerpts from the

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Performance-Based National Detention Standards issued by U.S.

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Immigration and Customs Enforcement.

ECF No. 18-7.

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States has not opposed this request.

The document appears to be

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a government document, available on a government website, and a

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source whose accuracy cannot reasonably be questioned.

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R. Evid. 201; Baires v. United States, No. C 09-05171 CRB, 2011

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WL 6140998 (N.D. Cal. Dec. 9, 2011) (stating that the 2007

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National Detention Standards appear to meet the Rule 201

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standard).

The United

See Fed.

The Court takes judicial notice of these standards.

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B.

Legal Standard

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The United States seeks to dismiss Plaintiff’s Federal Tort

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Claims Act (“FTCA”) claims under Federal Rule of Civil Procedure

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12(b)(1), arguing that the Court lacks jurisdiction to decide

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these claims.
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“A Rule 12(b)(1) jurisdictional attack may be facial or

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factual.”

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(9th Cir. 2004).

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the complaint based on the allegations contained in the

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complaint.

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challenger disputes the truth of the allegations that, by

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themselves, would otherwise invoke federal jurisdiction.”

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Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039

Id.

A facial attack challenges the sufficiency of

“By contrast, in a factual attack, the

Id.

The United States attacks jurisdiction on both facial and
factual grounds.

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C.

Federal Tort Claims Act Claims

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“It is elementary that ‘[t]he United States, as sovereign,

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is immune from suit save as it consents to be sued . . ., and the

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terms of its consent to be sued in any court define that court’s

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jurisdiction to entertain the suit.’”

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445 U.S. 535, 538 (1980) (quoting United States v. Sherwood, 312

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U.S. 584, 586 (1941)).

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sovereign immunity with regard to tort liability under the

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Federal Tort Claims Act ‘under circumstances where the United

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States, if a private person, would be liable to the claimant in

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accordance with the law of the place where the act or omission

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occurred.’”

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Cir. 2015) (citing 28 U.S.C. § 1346(b)(1)).

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some exceptions, two of which pertain to this case.

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United States v. Mitchell,

“The United States has waived its

Chadd v. United States, 794 F.3d 1104, 1108 (9th
But this waiver has

The first exception bars suits under FTCA for actions taken

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by a “contractor” working with the United States.

28 U.S.C.

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§ 2671.

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contractor is the existence of federal authority to control and

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supervise the ‘detailed physical performance’ and ‘day to day

“The critical test for distinguishing an agent from a

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operations’ of the contractor, and not whether the agency must

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comply with federal standards and regulations.”

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United States, 5 F.3d 1302, 1304 (9th Cir. 1993) (quoting Ducey

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v. United States, 713 F.2d 504, 516 (9th Cir. 1983)).

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Carrillo v.

Second, “the discretionary function exception retains the

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United States’s sovereign immunity for ‘[a]ny claim ... based

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upon the exercise or performance or the failure to exercise or

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perform a discretionary function or duty on the part of a federal

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agency or an employee of the Government, whether or not the

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discretion involved be abused.”

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§ 2680(a)).

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administrative decisions grounded in social, economic, and

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political policy” from judicial second guessing.

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Id. (citing 28 U.S.C.

This exception protects “legislative and

Id.

Courts apply a two-step inquiry to evaluate whether a claim

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falls into this exception.

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the government’s actions were discretionary in nature; that is,

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if a statute or policy directs mandatory and specific action,

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then there is no element of discretion involved and the inquiry

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ends.

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judgment, then the Court asks whether the government actions and

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decisions were susceptible policy analysis.

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protects only government actions and decisions based on social,

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economic, and political policy.”

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F.3d 591, 593 (9th Cir. 1998).

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nature, are not susceptible to policy analysis, then the

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exception does not apply.

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Id. at 1109.

First, the Court must examine whether

If the actions did involve an element of

Id.

“The exception

Miller v. United States, 163
If the actions taken, by their

Chadd, 794 F.3d at 1109.

The United States asserts that each of these exceptions
apply to Plaintiff’s FTCA claims.
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D.

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Analysis
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Control Over County and County Officers

Preliminarily, Plaintiff concedes that the United States did

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not closely supervise the detention of Plaintiff and others at

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RCCC and does not oppose the United States’ motion to dismiss the

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allegations regarding Plaintiff’s detention at RCCC as to the

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United States.

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that the “contractor” exception precludes his FTCA claim insofar

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as it is premised on the County’s and County Officers’ actions.

Opp. at 1.

Essentially, Plaintiff acknowledges

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See Logue v. United States, 412 U.S. 521 (1973) (an employee for

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a county jail—contracted for services by the United States but

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whose personnel is not under United States’ control—was found not

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to be an employee of a federal agency for the purposes of the

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FTCA).

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with prejudice, the FTCA claim inasmuch as it is based on the

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County’s and County Officers’ alleged actions.

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In light of Plaintiff’s concessions, the Court dismisses,

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Failure to Provide Medical Care

Removing those allegations from the picture, Plaintiff’s

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FTCA claim is premised on the ICE officers’ failure to give

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Plaintiff necessary medical care upon detaining him.

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¶ 20.

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to get his medication. Opp. at 5.

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FAC at

This failure includes their denying his request to go home

The United States argues that it cannot be held liable for

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these decisions because the FTCA’s discretionary function

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exception applies.

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Plaintiff points the Court to ICE’s “Performance-Based

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National Detention Standards 2011 (Revised 2016)” (“PBNDS”) for

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the specific provisions regarding medical practices during
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transfers of detainees to different facilities.

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The ICE officers, he argues, violated these provisions when they

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failed to ascertain what medicine Plaintiff needed and prevented

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him from retrieving it.

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Opp. at 5–7.

Id. at 7.

These standards are inapplicable.

The standards Plaintiff

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cites apply to “the following types of facilities housing ICE/ERO

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detainees: Service Processing Centers (SPCs); Contract Detention

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Facilities (CDFs); and State or local government facilities used

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by ERO through Intergovernmental Service Agreements (IGAs) to

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hold detainees for more than 72 hours.”

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sections Plaintiff cites set forth procedures for medical

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providers at the enumerated detention facilities to follow with

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respect to detainees in their care.

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(“Continuity of Care”), 278 (“Transfer of Medical Information”),

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457 (“Expected Outcomes”), and 459 (“Responsibilities of the

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Health Care Provider at the Sending Facility”).

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indication—explicit or implicit—that these standards apply to

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arresting officers transporting a new detainee to a detention

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center following arrest and initial processing at a sub-office.

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See Galvez Decl., ECF No. 16-2, ¶¶ 5–7, 12.

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to identify a statute, regulation, or policy that dictates a

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mandatory and specific action not taken here.

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therefore, involves the exercise of discretion.

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PBNDS at 257.

The sub-

See PBNDS at 276

There is no

Plaintiff has failed

The decision,

The second line of inquiry also favors the United States.

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The decision whether or not to permit an arrestee to return home

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to retrieve medication is a decision susceptible to social,

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economic, and political policy analysis. See Miller, 163 F.3d at

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593.

In deciding whether to return to an arrestee’s home, an
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arresting officer might weigh the risks to their own, fellow

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officers’, detainee’s, and bystanders’ safety, as well as the

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propriety of deferring to the detention facilities’ medical staff

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and intake procedures.

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and falls into the discretionary function exception.

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3.

Therefore, this decision is discretionary

False Imprisonment

Lastly, Plaintiff argues that the United States is liable

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under the FTCA for false imprisonment because Plaintiff signed a

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voluntary departure form upon arrest but was thereafter detained.

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Opp. at 9.
The FAC does not allege a false imprisonment claim against

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the United States.

See FAC; Rep. at 1.

Plaintiff’s false

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imprisonment theory of liability is fleshed out in his proposed

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Second Amended Complaint, but not the operative complaint.

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Compare ECF No. 18-5 with ECF No. 11-1.

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move forward on a theory Plaintiff failed to allege.

The FTCA claim cannot

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E.

Leave to Amend

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“Dismissal with prejudice and without leave to amend is not

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appropriate unless it is clear . . . that the complaint could not

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be saved by amendment.”

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316 F.3d 1048, 1051-52 (9th Cir. 2003).

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grant leave to amend where amendment would be futile.

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Deveraturda v. Globe Aviation Security Services, 454 F.3d 1043,

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1049 (9th Cir. 2006).

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Eminence Capital, LLC v. Aspeon, Inc.,
But the Court need not

Plaintiff has failed to identify any statute or policy that

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would mandate action in the circumstances alleged in the First

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Amended Complaint.

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denied.

Amendment would be futile and is therefore

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As to Plaintiff’s new claim for false imprisonment, the

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arguments concerning the claim are best addressed in the pending

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Motion to Amend.

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whether to allow Plaintiff to go forward on this claim

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Motion to Amend has been fully briefed and argued.

ECF No. 20.

The Court reserves its decision on
until the

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III.

ORDER

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For the reasons set forth above, the Court GRANTS WITH

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PREJUDICE the United States’ Motion to Dismiss Plaintiff’s FTCA

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claim predicated on the failure to provide medical care and

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actions by the County and County Officers.

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IT IS SO ORDERED.
Dated: February 8, 2018

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