Mendez Jimenez v. United States of America et al

Filing 28

ORDER signed by District Judge John A. Mendez on 3/14/2018 ORDERING 20 the Court DENIES Plaintiff's Motion to Amend with respect to his allegations against the U.S. and the individual ICE agents. The U.S. is DISMISSED with prejudice as a party to this action. The Court GRANTS Plaintiff's Motion to Amend with respect to his allegations against the County Defendants. Plaintiff is ORDERED to file a modified Second Amended Complaint consistent with this Order within one week of the date of this Order. (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-1914-JAM-KJN

Plaintiff,

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No.

v.
UNITED STATES OF AMERICA;
COUNTY OF SACRAMENTO; and
DOES 1-20, Inclusive,

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ORDER DENYING IN PART AND
GRANTING IN PART PLAINTIFF’S
MOTION TO AMEND

Defendants.

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Following the United States’ filing of its Motion to

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Dismiss, Luis Alberto Mendez Jiminez (“Plaintiff”) filed a Motion

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for Leave to File a Second Amended Complaint under Federal Rule

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of Civil Procedure 15(a).

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Plaintiff’s motion is DENIED insofar as it alleges new facts and

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claims against the United States and individual United States

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officers and GRANTED as to the unopposed allegations against the

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County Defendants. 1

For the reasons set forth below,

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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 March 13, 2018.
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I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

The factual allegations in this case are set forth in the

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Court’s Order Granting Defendant United States of America’s

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Motion to Dismiss, ECF No. 24, and are incorporated herein.

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In Plaintiff’s proposed Second Amended Complaint (“SAC”),

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ECF No. 20-1, he further alleges that at the time he was arrested

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he executed DHS Form I-286, “Notificacion de Derechos y Solicitud

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de Resolucion” (“Notification of Rights and Application of

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Resolution).

SAC ¶ 21.

He signed the form—which was written

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entirely in Spanish—and in so doing waived his rights to a

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hearing before an immigration court and requested immediate

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deportation to his country of origin, Mexico.

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consent, the Immigration and Customs Enforcement (“ICE”) agents

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gave Plaintiff a Notice to Appear written entirely in English,

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without explaining the inconsistencies between the two forms.

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Id.

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the ICE agents confined Plaintiff by transporting him for

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detention at RCCC, causing delay in processing and releasing

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Plaintiff.

Id.

Despite this

Instead of processing Plaintiff for expeditious deportation,

Id. at ¶ 22.

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II.

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OPINION

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A.

Legal Standard

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Under Rule 15(a), leave to amend is to be freely granted

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when justice so requires.

Fed. R. Civ. P. 15(a).

Courts

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consider five factors in determining whether to grant such leave:

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“bad faith, undue delay, prejudice to the opposing party,

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futility of amendment, and whether the plaintiff has previously

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amended the complaint.”

Johnson v. Buckley, 356 F.3d 1067, 1077
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(9th Cir. 2004).

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motion to amend.”

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amendment bears the burden of demonstrating any ground for

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denying the motion.

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CV-1404 JLS (WVG), 2016 WL 4597527, at *2 (S.D. Cal. May 3,

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2016).

“Futility alone can justify the denial of a
Id. (citation omitted).

The party opposing

Clark v. Citizens of Humanity, LLC, No. 14-

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B.

FTCA Claim

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Plaintiff seeks leave to add allegations supporting his

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Federal Tort Claims Act (“FTCA”) claim against the United States

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for failure to provide medical care and to add a new claim for

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false imprisonment.

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already denied leave to amend Plaintiff’s FTCA claim for failure

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to provide medical care.

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reaffirmed.

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whether to grant Plaintiff leave to add a false imprisonment

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claim.

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See Mot., Exh. A, ECF No. 20-1.

See Order at 8.

The Court

That Order is

The motion to amend, therefore, primarily turns on

Plaintiff’s argument in support of leave to amend is sparse.

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He first contends that granting leave to amend would resolve the

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Motion to Dismiss and save judicial resources.

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point is moot.

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not delay the resolution of this case nor will it impose undue

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prejudice on defendants.”

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the futility or viability of his false imprisonment allegations

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even though the United States drew attention to this issue in its

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reply brief to the motion to dismiss.

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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.

Mot. at 2.

That

Second, he argues “[a]mending the complaint will

Id. at 2–3.

Plaintiff did not address

See ECF No. 19; Order at 9

The Court reserves its decision on whether to
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allow Plaintiff to go forward on this claim until the Motion to

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Amend has been fully briefed and argued.”).

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The United States argues the Court should deny leave to

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amend because amendment would be futile.

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United States contends the claim is procedurally barred because

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Plaintiff did not include it in his administrative claim to

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Immigration and Customs Enforcement (“ICE”) as required under the

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Federal Tort Claims Act.

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barred from hearing the claim pursuant to 8 U.S.C. § 1252(g),

Id.

Opp. at 1.

First, the

Second, it argues this Court is

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which strips courts of jurisdiction for claims arising from the

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Attorney General’s decision to commence proceedings, adjudicate

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cases, or execute removal orders against aliens.

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Plaintiff did not file a reply to the United States’ Opposition.

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“A federal court’s jurisdiction to hear damage actions

Id. at 4.

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against the United States is limited by section 2675(a) of the

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FTCA.”

Shipek v. United States, 752 F.2d 1352, 1353 (9th Cir.

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1985).

That section requires a claimant to present her claim to

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the appropriate Federal agency, and her claim must have been

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finally denied by writing or lapse of time before she institutes

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an action against the United States.

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notice requirement is minimal, but a claim should contain at

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least the fact of the incident, injury, and a sum certain

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representing damages.

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consistently interpreted the notice required under section

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2675(a) as minimal.

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skeletal claim form, containing only the bare elements of notice

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of accident and injury and a sum certain representing damages,

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suffices to overcome an argument that jurisdiction is lacking.’”)

28 U.S.C. § 2675(a).

The

See Shipek, 752 F.2d at 1354 (“[W]e have

In Avery, the court explained that ‘a

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(quoting Avery v. United States, 680 F.2d 608, 610 (9th Cir.

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1982)).

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Plaintiff did not include the false imprisonment claim in

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his administrative complaint nor did he include the facts he now

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alleges in support of that claim.

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Frueh, Exh. 6, ECF No. 19-5.

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damages related to such a claim.

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additional facts or law allowing him to circumvent the exhaustion

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required under section 2675.

See Declaration of Joseph B.

He did not specify any injury or
Plaintiff has not presented any

Plaintiff’s new FTCA claim is

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therefore procedurally barred.

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motion to amend the FTCA claim is denied.

For this reason, Plaintiff’s

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C.

Bivens Claim

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Although no individual federal officers have been named in

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this action—the Bivens claim is alleged against Does 1-20—and

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although the United States is not a defendant to Plaintiff’s

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Bivens claim, the Court will, sua sponte, consider the authority

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the United States cites pertaining to the Court’s jurisdiction to

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entertain the false imprisonment allegations in Plaintiff’s

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Bivens claim. Cf. Valencia-Mejia v. United States, No. CV 08-2943

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CAS (PJWX), 2008 WL 4286979, at *4 (C.D. Cal. Sept. 15, 2008)

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(“The Court finds that defendant [United States] may lack

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standing to challenge plaintiff’s Bivens claim, but nevertheless

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considers the issue sua sponte.”) (deciding a motion to dismiss).

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The Court does so in light of Plaintiff’s deafening silence on

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these significant jurisdictional questions and in the absence of

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any named defendants to oppose the amendment on their own behalf.

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The United States persuasively argues that the Court’s

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review of Plaintiff’s new claim is barred by 8 U.S.C. § 1252(g).
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Entitled “Exclusive jurisdiction,” that sub-section provides:

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Except as provided in this section and notwithstanding
any other provision of law (statutory or
nonstatutory), including section 2241 of Title 28, or
any other habeas corpus provision, and sections 1361
and 1651 of such title, no court shall have
jurisdiction to hear any cause or claim by or on
behalf of any alien arising from the decision or
action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal
orders against any alien under this chapter.

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8 U.S.C. § 1252(g).

The Ninth Circuit has applied this

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jurisdictional bar to Bivens claims.

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947, 949 (9th Cir. 2007) (concluding that section 1252(g) applied

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to the plaintiff’s Fourth Amendment-based damages (Bivens) claim

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for false arrest); see also Valencia-Mejia v. United States, No.

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CV 08-2943 CAS PJWX, 2008 WL 4286979, at *4 n.4 (C.D. Cal. Sept.

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15, 2008) (“Given that the Court herein finds that it has no

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jurisdiction under § 1252(g) to hear plaintiff’s challenge to his

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detention, it seems apparent that, under Sissoko, the Bivens

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claims are also barred.”).

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Sissoko v. Rocha, 509 F.3d

Although this subsection is to be applied “narrowly,”

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Plaintiff’s claim falls within its parameters.

The Valencia-

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Mejia court’s analysis in an analogous factual situation and is

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instructive.

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arrested a citizen of Mexico for being present in the United

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States without admission or parole.

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4286979, at *1.

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hearing and agreed to removal (he requested voluntary departure,

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see id. at n.1), he was nevertheless served with a Notice to

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Appear before an Immigration Judge.

In that case, the Department of Homeland Security

Valencia-Mejia, 2008 WL

Although he agreed to waive his right to a

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Id.

After receiving the

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Notice, he waived his right to a 10-day waiting period before a

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hearing and requested an immediate removal hearing.

Id.

He

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remained incarcerated for another month thereafter.

Id.

He

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brought a false imprisonment claim against the United States

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under the FTCA and a Bivens claim against Does 1 through 10 for

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violating his Fourth Amendment right to be free from unreasonable

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detention and his Fifth Amendment right to due process.

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Id.

The Valencia-Mejia court held that under 8 U.S.C. § 1252(g),
it could not review the plaintiff’s FTCA claims for false

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imprisonment and negligence.

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exercised its discretion to deny plaintiff’s request for

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immediate voluntary departure, but instead issued plaintiff a

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Notice to Appear before an Immigration Judge, defendant

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‘commenced removal proceedings’ against plaintiff.”

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follows that the decision to detain plaintiff until his hearing

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before the Immigration Judge arose from this decision to commence

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proceedings.”

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concluded, the statute barred review of the claim.

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Id.

Id. at *4.

“[W]hen defendant

Id.

“It

Accordingly, the Valencia-Mejia court

The Valencia-Mejia court further noted that under 8 U.S.C.

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§ 1229c(f), “no court has jurisdiction over an appeal from denial

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of a request for an order of voluntary departure.”

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reasoned that “[b]ecause plaintiff’s false imprisonment and

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negligence claims are essentially a challenge to defendant’s

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failure to grant plaintiff’s request for voluntary departure, the

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claims are not reviewable by this Court.”

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statute, too, the court held that it lacked jurisdiction to

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review the false imprisonment and negligence claims.

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Id.

Id.

It

Under this

Id.

The Court finds the reasoning articulated in Valencia-Mejia
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persuasive.

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the contrary.

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the ICE agents’ decision to give Plaintiff a Notice to Appear and

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detain him, rather than immediately grant voluntary departure, is

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not reviewable in this Court and amendment would be futile.

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Plaintiff may not amend his Bivens claim.

Plaintiff has not argued or cited any authority to
Consequently, Plaintiff’s Bivens claim premised on

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D.

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County Defendants do not oppose Plaintiff’s motion.

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Claims against the County Defendants

Statement of Non-Opposition, ECF No. 25.

See

Plaintiff’s Second

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Amended Complaint adds very little to the allegations against

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these Defendants.

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to the County Defendants is granted.

See SAC ¶ 13.

Leave to amend his complaint as

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III.

ORDER

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For the reasons set forth above, the Court DENIES

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Plaintiff’s Motion to Amend with respect to his allegations

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against the United States and the individual ICE agents.

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United States is dismissed with prejudice as a party to this

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action.

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respect to his allegations against the County Defendants.

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Plaintiff is ordered to file a modified Second Amended Complaint

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consistent with this Order within one week of the date of this

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Order.

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The

The Court GRANTS Plaintiff’s Motion to Amend with

IT IS SO ORDERED.
Dated: March 14, 2018

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