Pierre v. Nicoll et al

Filing 54

ORDER ON 32 MOTION TO DISMISS AND SUBSTITUTE by Judge William H. Orrick. The Motion to Substitute is GRANTED. The Motion to Dismiss for lack of subject matter jurisdiction for failure to exhaust administrative remedies is GRANTED with leave to a mend. The Motion to Dismiss for lack of subject matter jurisdiction as to the Third Cause of Action in its entirety, and to the First, Second, and Fourth Causes of Action insofar as they request injunctive relief and punitive damages, is GRANTED WITH PREJUDICE. The Motion to Dismiss for failure to state a claim is GRANTED WITH LEAVE TO AMEND. Any amended complaint shall be filed by November 20, 2013. (jmdS, COURT STAFF) (Filed on 10/23/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GEORGE PIERRE,

Case No. 13-cv-02427-WHO

Plaintiff,
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v.

ORDER ON MOTION TO DISMISS
AND SUBSTITUTE

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C. DIANA NICOLL, et al.,

Re: Dkt. No. 32

Defendants.

United States District Court
Northern District of California

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Before the Court is the Motion to Dismiss and Substitute of San Francisco Veterans’

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Administration Medical Center employees C. Diane Nicoll, JoAnn Peters, and Brian Dobbs (the

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“VA Defendants”). For the reasons set forth below, the motion to substitute is GRANTED, and

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the motion to dismiss is GRANTED WITH PREJUDICE in part, and GRANTED WITH LEAVE

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TO AMEND in part.
BACKGROUND

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Pro se plaintiff George Pierre, a homeless veteran, alleges that he was wrongfully evicted

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from the New Beginnings Center (“NBC”) a transitional housing facility. He has sued employees

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of NBC and the VA Defendants and alleges six causes of action: (1) wrongful eviction; (2) age

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discrimination; (3) fraud; (4) intentional infliction of emotional distress; (5) negligent infliction of

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emotional distress; and (6) negligence.

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Pierre claims that the VA Defendants are liable for his wrongful eviction and allegedly

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fraudulent and defamatory statements made against him because they have oversight for homeless

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shelters and programs such as NBC. Compl. ¶¶ 29-31; Dkt. No. 18 at 3-4. The VA Defendants

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have filed a motion to substitute the United States as a party in place of the individual VA

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Defendants and dismiss the complaint based on lack of subject matter jurisdiction and failure to

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state a claim upon which relief may be granted. Dkt. No. 32

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LEGAL STANDARD

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A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) tests the subject

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matter jurisdiction of the court. Doe v. Hagee, 473 F. Supp. 2d 989, 994 (N.D. Cal. 2007). The

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plaintiff bears the burden of establishing the propriety of the court’s jurisdiction. Kokkonen v.

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Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A Rule 12(b)(1) motion will be granted

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if the complaint, when considered in its entirety, fails to allege on its face facts sufficient to

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establish subject matter jurisdiction. Thornhill Publ’g Co. v. General Tel. & Elecs. Corp., 594

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F.2d 730, 733 (9th Cir. 1979). A defendant may seek dismissal under Rule 12(b)(1) by presenting
evidence to refute the jurisdictional facts alleged in the complaint. Safe Air for Everyone v.

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United States District Court
Northern District of California

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Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Once the defendant has introduced such evidence,

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the plaintiff must furnish affidavits or other evidence necessary to satisfy its burden of establishing

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subject matter jurisdiction. Doe v. Hagee, 473 F. Supp. 2d at 994.

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To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to

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state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556

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(2007). A claim is facially plausible when the plaintiff pleads facts that “allow 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, 678 (2009) (citation omitted). This standard is not akin to a probability

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requirement, but there must be “more than a sheer possibility that a defendant has acted

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unlawfully.” Id. In deciding whether the plaintiff has stated a claim upon which relief can be

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granted, the court accepts the plaintiff’s allegations as true and draws all reasonable inferences in

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favor of the plaintiff. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However,

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the court is not required to accept as true “allegations that are merely conclusory, unwarranted

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deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049,

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1055 (9th Cir. 2008).

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Where a plaintiff is proceeding pro se, the court has an obligation to construe the pleadings

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liberally and to afford the plaintiff the benefit of any doubt. Bretz v. Kelman, 773 F.2d 1026, 1027

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n.1 (9th Cir. 1985) (en banc). However, pro se pleadings must still allege facts sufficient to allow
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a reviewing court to determine whether a claim has been stated. Ivey v. Bd. of Regents of Univ. of

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Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
DISCUSSION

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I. MOTION TO SUBSTITUTE
The VA Defendants move to substitute the United States as a party. The Federal
Employees Liability Reform and Tort Compensation Act immunizes United States employees

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from liability for their “negligent or wrongful act[s] or omission[s] ... while acting within the

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scope of [their] office or employment.” 28 U.S.C. § 2679(b)(1). The Attorney General certifies

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whether a United States employee was acting within the scope of his or her employment at the

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time of an event giving rise to a civil claim. 28 U.S.C. § 2679(d)(1). Upon certification, “any

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United States District Court
Northern District of California

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civil action or proceeding commenced upon such claim in a United States district court shall be

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deemed an action against the United States under the provisions of this title and all references

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thereto, and the United States shall be substituted as the party defendant.” 28 U.S.C. § 2679(d)(1).

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The case then falls under the governance of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§

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1346, 2671 et seq. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995). The purpose of

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substitution is to “remove the potential personal liability of Federal employees for common law

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torts committed within the scope of their employment, and . . . instead provide that the exclusive

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remedy for such torts is through an action against the United States under the Federal Tort Claims

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Act.” Billings v. United States, 57 F.3d 797, 799 (9th Cir. 1995).

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Here, the United States Attorney has certified pursuant to 28 U.S.C. § 2679(d) that the

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VA Defendants were acting in the scope of their employment as employees of the SFVAMC with

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respect to the factual allegations in the Complaint. Dkt. No. 33. The Court previously rejected

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Pierre’s argument that the VA Defendants were not acting within the scope of their employment.

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See Dkt. No. 44. Therefore, substitution of the United States in their place is proper.

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II. MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDCTION
The VA Defendants assert that the Court lacks subject matter jurisdiction under The

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Federal Tort Claims Act. The FTCA waives the sovereign immunity of the United States for

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actions in tort and provides a remedy for persons injured by the tortious activity of an employee of
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the United States where the employee was acting within the scope of his office or employment.

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28 U.S.C. § 1346(b). However, there are certain limitations to the right to bring suit against the

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United States under the FTCA that are applicable here.
An FTCA action “shall not be instituted” against the United States unless the plaintiff first

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files an administrative claim with the “appropriate Federal agency” and the claim is denied. 28

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U.S.C. § 2675(a). The claim requirement of section 2675(a) is a jurisdictional limitation.

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Meridian Int’l Logistics, Inc. v. United States, 939 F.2d 740, 743 (9th Cir. 1991). Because the

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requirement is jurisdictional, it “must be strictly adhered to.” Jerves v. United States, 966 F.2d

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517, 521 (9th Cir. 1992).
The United States contends that Pierre failed to present his claim to the Veterans’

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United States District Court
Northern District of California

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Administration before filing this case, and Pierre neither alleged in his Complaint that he had done

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so nor opposed the motion to dismiss.1 Therefore, it appears that Pierre failed to exhaust his

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administrative remedies, which is fatal to his claim against the United States.
If Pierre did exhaust, certain of his claims are still barred by the FTCA. Pierre’s Third

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Cause of Action alleges that the defendants made misrepresentations to police officers and wrote

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false statements in his record at NBC. Compl. ¶¶ 29-31. But 28 U.S.C. § 2680(h) specifically

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excludes from the FTCA claims arising out of libel, slander, fraud, and misrepresentation.

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Although the Complaint does not make clear exactly who made the allegedly fraudulent

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statements, the Third Cause of Action is barred under the FTCA to the extent that it is alleged

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against the VA Defendants. 28 U.S.C. § 2680(h); Owyhee Grazing Ass’n, Inc. v. Field, 637 F.2d

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694, 697 (9th Cir. 1981) (“claims against the United States for fraud or misrepresentation by a

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federal officer are absolutely barred”).
Also, Pierre’s Complaint appears to request injunctive relief ordering the Defendants to

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give Pierre a room at NBC and prevent future alleged wrongful evictions of tenants at transitional

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housing shelters. Compl. at 3-4, 12 ¶ 21. Pierre also requests punitive damages for his First,

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The Defendants refer to a declaration of Suzanne C. Will to support their contention that Pierre
has not filed an administrative claim with the Veterans Administration. Dkt. No. 32 at 8. No such
declaration was filed with the Court.
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Second, Third, and Fourth Causes of Action. Compl. at 15 ¶ 27, 16 ¶ 35, 18 ¶ 41, 19-20. The

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FTCA makes the United States liable in money damages for the torts of its agents under specified

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conditions, but it does not submit the United States to injunctive relief or punitive damages. 28

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U.S.C. § 2674; Palm v. United States, 835 F. Supp. 512, 518 (N.D. Cal. 1993). The claims for

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injunctive relief and punitive damages must be dismissed against the VA Defendants.

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III. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
On September 25, 2013, this Court granted the NBC Defendants’ Motion to Dismiss

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Pierre’s Complaint with leave to amend. Dkt. No. 44. For the reasons set forth in the September

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25, 2013 Order, the Complaint fails to state a claim upon which relief may be granted against the

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VA Defendants.
CONCLUSION

United States District Court
Northern District of California

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For the reasons set forth above, the Motion to Substitute is GRANTED. The Motion to

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Dismiss for lack of subject matter jurisdiction for failure to exhaust administrative remedies is

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GRANTED with leave to amend if Pierre alleges that he exhausted administrative remedies

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against the United States. The Motion to Dismiss for lack of subject matter jurisdiction as to the

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Third Cause of Action in its entirety, and to the First, Second, and Fourth Causes of Action insofar

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as they request injunctive relief and punitive damages, is GRANTED WITH PREJUDICE. The

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Motion to Dismiss for failure to state a claim is GRANTED WITH LEAVE TO AMEND. Any

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amended complaint shall be filed by November 20, 2013.

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IT IS SO ORDERED.
Dated: October 23, 2013
______________________________________
WILLIAM H. ORRICK
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

GEORGE PIERRE,

Case Number: CV13-02427 WHO

Plaintiff,

CERTIFICATE OF SERVICE

v.
DR C DIANA NICOLL MD et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on October 23, 2013, I SERVED a true and correct copy of the attached, by placing said
copy in a postage paid envelope addressed to the person hereinafter listed, by depositing said
envelope in the U.S. Mail.

George Pierre
P.O. Box 9986
Berkeley, CA 94709

Dated: October 23, 2013
Richard W. Wieking, Clerk
By: Jean Davis, Deputy Clerk