Castro v. UNITED STATES OF AMERICA

Filing 21

ORDER by Judge Maria-Elena James granting 16 Motion to Dismiss for Lack of Jurisdiction. (mejlc2S, COURT STAFF) (Filed on 6/21/2016)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 ISAAC CASTRO, Case No. 16-cv-00501-MEJ Plaintiff, 7 ORDER GRANTING MOTION TO DISMISS v. 8 9 Re: Dkt. No. 16 UNITED STATES OF AMERICA, Defendant. 10 United States District Court Northern District of California 11 12 INTRODUCTION 13 Plaintiff Isaac Castro (“Plaintiff”), as Personal Representative of the Estate of Sara 14 Castromata, his daughter, brings suit against the United States of America (“Defendant”) under the 15 Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680. Pending before the Court 16 is Defendant‟s Motion to Dismiss pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1) 17 for lack of subject matter jurisdiction in light of Feres v. United States, 340 U.S. 135 (1950), and 18 its progeny. Dkt. No. 16. Plaintiff filed an Opposition (Dkt. No. 18), and Defendant filed a Reply 19 (Dkt. No. 20). The Court finds this matter suitable for disposition without oral argument and 20 VACATES the July 14, 2016 hearing. See Fed. R. Civ. P. 78(b); Civ. L.R. 7-1(b). Having 21 considered the parties‟ positions, relevant legal authority, and the record in this case, the Court 22 GRANTS Defendant‟s Motion for the following reasons. 23 24 BACKGROUND The following facts are taken from Plaintiff‟s Complaint. See Compl., Dkt. No. 1 (filed 25 Jan. 28, 2016). Sara Castromata was on active duty for the United States Marine Corps 26 (“USMC”) stationed at Marine Corps Base, Quantico, Virginia (“MCBQ”) at the time of her 27 death. Id. ¶ 3. On March 21, 2013, Sgt. Eusebio Lopez fatally shot Castromata while she was in 28 her barracks room aboard MCBQ. Id. ¶¶ 4, 12, 38. Plaintiff alleges Lopez had documented head trauma and PTSD, following his three tours 1 2 in support of Operation Iraqi Freedom. Id. ¶ 13. Lopez was initially supposed to transfer to 3 MCBQ to attend Recruiter school, but he was reassigned to serve at the Officer Candidates School 4 (“OCS”) aboard MCBQ after failing a mental health screening. Id. ¶ 15. When Lopez was 5 transferred to MCBQ in March1 2012, MCBQ did not obtain or review his medical records, and 6 subsequently Lopez stopped treating his mental health issues. Id. ¶ 14. Lopez and Castromata had a brief, intimate relationship that began in November 2012 and 7 8 ended several weeks prior to March 21, 2013. Id. ¶ 28. Castromata began dating Cpl. Jacob 9 Wooley following her relationship with Lopez. Id. ¶ 34. On March 21, 2013, Lopez sent Castromata a text message indicating he was going to 10 United States District Court Northern District of California 11 commit suicide. Id. ¶ 29. Castromata warned the Sentry about Lopez‟s text and mental state, but 12 the Sentry did not notify the chain of command or document the incident. Id. ¶ 30. The same day, 13 Lopez told the Sentry he was locked out of his room and asked for the master key, which the 14 Sentry gave him. See id. ¶ 33. Lopez later returned his own room key to the Sentry, instead of the 15 master key. Id. While Castromata and Wooley were on liberty and off-base on a dinner date, Lopez used 16 17 the master key to access Castromata‟s room, Wooley‟s room, and the stairwells. Id. ¶ 35. 18 Castromata and Wooley returned to the barracks between 8:30 and 9:00 p.m. and watched a movie 19 in Wooley‟s room before returning to Castromata‟s room. Id. ¶ 36. Around 10:00 p.m., Lopez, 20 under the influence of alcohol and in possession of a firearm, confronted Castromata and Wooley, 21 and fatally shot Wooley, Castromata, and himself. Id. ¶ 38. Plaintiff alleges their bodies were left 22 in place for over six hours before any action was taken to determine if the injuries were survivable. 23 Id. ¶ 39. Specifically, Plaintiff alleges “no action was taken to determine the medical condition of 24 all personnel involved until approximately four hours after the shooting; local civilian authorities 25 were not contacted during this time to assist.” Id. Plaintiff brings a single claim in this lawsuit: negligence. Id. ¶¶ 41-44. In addition to the 26 27 1 28 The Complaint states that Lopez was transferred in May 2012, but this appears to be a typographical error. Compl. ¶ 3. 2 1 events above, Plaintiff alleges that upon arrival at MCBQ, Lopez never attended a Welcome 2 Aboard Brief, which reviews the Command‟s policies and procedures for personal firearms. Id. ¶ 3 16. Furthermore, Lopez owned a Springfield XD .45 caliber, semi-automatic pistol and 4 Remington shotgun in addition to several large knives and ammunition, which he originally stored 5 off-base at his personal residence. Id. ¶¶ 17, 18. Plaintiff alleges the Command knew about 6 Lopez‟s firearms by the time he moved into the barracks at OCS, but they did not ensure his 7 weapons were registered and stored at the armory. Id. ¶¶ 22-25. Indeed, in August 2012, 8 members of OCS Command received information that Lopez had weapons and suicidal 9 aspirations, but Plaintiff indicates the Command mishandled this incident by, among other things, failing to properly log important details about the incident, including Lopez‟s possession of 11 United States District Court Northern District of California 10 weapons. Id. ¶¶ 19-22. Additionally, the Command is required to conduct Force Preservation 12 Boards (“FPB”), where members of the command discuss individuals with mental illness or 13 suicidal/homicidal intentions or histories, but OCS‟s FPB, held on September 25, 2012, never 14 mentioned Lopez‟s name, suicidal ideations, weapons, or move into the barracks. Id. ¶¶ 26-27. 15 Plaintiff claims Defendant breached its duty to ensure the barracks was a safe environment 16 and to uphold and enforce its regulations by, among other things: (1) failing to consciously and 17 deliberately transfer Lopez‟s medical records; (2) failing to ensure Lopez registered and stored his 18 weapons in the armory; (3) failing to discuss and remedy Lopez‟s mental health issues at the 19 Command‟s FPB; (4) giving Lopez the master key, in violation of a Marine Corps Order; (5) 20 putting a Marine who had multiple Non-Judicial Punishments and was in the process of being 21 administratively discharged on Duty as the Sentry and in-possession of the master key; (6) failing 22 to enforce non-discretionary Department of Defense and Marine Corps orders; (7) failing to 23 provide emergency medical attention immediately after the shooting; and (8) failing to contact 24 local civilian authorities to assist. Id. ¶ 43. 25 While acknowledging the tragic nature of this case, Defendant moves to dismiss under 26 Feres v. United States and its progeny, which prohibit suits against the military for injuries arising 27 out of or in the course of activity “incident to service.” 340 U.S. at 146. Defendant argues the 28 “Feres doctrine” divests the Court of subject matter jurisdiction over Plaintiff‟s case. Mot. at 1, 3. 3 LEGAL STANDARD 1 2 Federal district courts are courts of limited jurisdiction; “[t]hey possess only that power 3 authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen 4 v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citation omitted). Accordingly, “[i]t 5 is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing 6 the contrary rests upon the party asserting jurisdiction.” Id.; Chandler v. State Farm Mut. Auto. 7 Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). Federal Rule of Civil Procedure 12(b)(1) authorizes a party to move to dismiss a lawsuit 9 for lack of subject matter jurisdiction. A jurisdictional challenge may be facial or factual. Safe 10 Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where the attack is facial, the 11 United States District Court Northern District of California 8 court determines whether the allegations contained in the complaint are sufficient on their face to 12 invoke federal jurisdiction, accepting all material allegations in the complaint as true and 13 construing them in favor of the party asserting jurisdiction. Warth v. Seldin, 422 U.S. 490, 501 14 (1975). Where the attack is factual, however, “the court need not presume the truthfulness of the 15 plaintiff‟s allegations.” Safe Air for Everyone, 373 F.3d at 1039. In resolving a factual dispute as 16 to the existence of subject matter jurisdiction, a court may review extrinsic evidence beyond the 17 complaint without converting a motion to dismiss into one for summary judgment. Id.; McCarthy 18 v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (holding that a court “may review any 19 evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of 20 jurisdiction”). 21 A motion to dismiss based on Feres v. United States is a request for dismissal for lack of 22 subject matter jurisdiction under Rule 12(b)(1). Bowen v. Oistead, 125 F.3d 800, 803 (9th Cir. 23 1997) (citing Jackson v. United States, 110 F.3d 1484, 1486 (9th Cir. 1997)). 24 DISCUSSION 25 The Federal Tort Claims Act (“FTCA”) “effects a broad waiver of the United States‟ 26 sovereign immunity from suit for tort damages.” Jackson v. Tate, 648 F.3d 729, 733 (9th Cir. 27 2011) (citing 28 U.S.C. § 2674); see also 28 U.S.C. § 1346(b) (“[D]istrict courts . . . have 28 exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . 4 1 for . . . personal injury or death caused by the negligent or wrongful act or omission of any 2 employee of the Government while acting within the scope of his office or employment, under 3 circumstances where the United States, if a private person, would be liable to the claimant in 4 accordance with the law of the place where the act or omission occurred.”). “In an exception to 5 this waiver,” however, “the FTCA withholds the United States‟ consent to be sued for „[a]ny claim 6 arising out of the combatant activities of the military or naval forces, or the Coast Guard, during 7 time of war.‟” Id. (brackets in original; emphasis added) (quoting 28 U.S.C. § 2680(j)). 8 9 In Feres v. United States, the Supreme Court expanded this exception and held that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” 340 U.S. at 146. The 11 United States District Court Northern District of California 10 Supreme Court has been criticized for its decision in Feres as going well beyond what Congress 12 intended in delineating the foregoing exception to the FTCA in § 2680(j). See United States v. 13 Johnson, 481 U.S. 681, 700 (1987) (Scalia, J., dissenting, joined by Brennan, Marshall, and 14 Stevens, JJ.) (“Feres was wrongly decided and heartily deserves the widespread, almost universal 15 criticism it has received.”). Nonetheless, the Supreme Court has continued to uphold Feres and its 16 “bar has been interpreted broadly[,]” so that “[p]ractically any suit that „implicates the military 17 judgments and decisions‟ . . . runs the risk of colliding with Feres.” Bowen, 125 F.3d at 803 18 (quoting Persons v. United States, 925 F.2d 292, 295 (9th Cir. 1991)) (internal marks omitted). 19 The Ninth Circuit Court of Appeals has held that “the Feres doctrine is applicable „whenever a 20 legal action would require a civilian court to examine decisions regarding management, discipline, 21 supervision, and control of members of the armed forces of the United States.” Bowen, 125 F.3d 22 at 804 (quotations and internal marks omitted)). 23 In assessing whether the Feres doctrine applies, courts consider “two common factors”: (1) 24 whether the injured person was a member of the armed forces of the United States at the time the 25 injury was sustained; and (2) whether the injury arises out of or occurred in the course of activity 26 incident to military service. See Jackson, 648 F.3d at 733. As there is no dispute Castromata was 27 on active duty for the USMC at the time of her death, Compl. ¶ 3, the key inquiry and dispute in 28 this matter is whether her death occurred “in the course of activity incident to [her] service.” 5 1 2 Feres, 340 U.S. at 146. In Johnson v. United States, the Ninth Circuit articulated four factors for determining 3 whether an injury has been sustained in the course of an activity “incident to service,” including 4 (1) the location where the activity giving rise to the injury occurred; (2) the duty status of the 5 plaintiff at the time of activity giving rise to the injury; (3) the benefits accruing to the plaintiff 6 because of her status as a service member; and (4) the nature of the plaintiff‟s activities at the time 7 of the activity giving rise to the injury. 704 F.2d 1431, 1436-41 (9th Cir. 1983); Jackson v. Tate, 8 648 F.3d at 733 (applying factors); see also Schoenfeld v. Quamme, 492 F.3d 1016, 1021 (9th Cir. 9 2007) (“[T]he most relevant line of inquiry is whether or not the service member‟s activities at the time of the injury are of the sort that could harm the disciplinary system if litigated in a civil 11 United States District Court Northern District of California 10 action.” (quoting Johnson, 704 F.2d at 1439). While courts in the Ninth Circuit have relied on 12 such factors in guiding their analysis, in United States v. Shearer, the Supreme Court has stated 13 that “[t]he Feres doctrine cannot be reduced to a few bright-line rules,” 473 U.S. 52, 57 (1985). 14 The Ninth Circuit has directed courts to thus focus on the “totality of the circumstances” to 15 determine whether the alleged injury occurred “incident to service.” See Costo v. United States, 16 248 F.3d 863, 867 (9th Cir. 2001), cert. denied, 534 U.S. 1078 (2002). In doing so, “lower courts 17 have typically resorted to comparing fact patterns in previous cases with that in the case before 18 them in an effort to produce the most appropriate outcome.” Estate of McAllister v. United States, 19 942 F.2d 1473, 1477 (9th Cir. 1991), cert. denied, 112 S. Ct. 1164 (1992). Additionally, the Ninth 20 Circuit has recognized that the “key inquiry is „whether the suit requires the civilian court to 21 second-guess military decisions, . . . and whether the suit might impair essential military 22 discipline[,]‟” noting that the “the interest in maintaining military discipline—is „the most 23 persuasive justification‟ for the [Feres] doctrine, and our Feres cases have focused mainly on 24 whether the serviceman‟s activities implicate that interest.” Schoenfeld, 492 F.3d at 1019 25 (quotations omitted). 26 Defendant cites McAllister as controlling precedent for this case. Mot. at 7. McAllister in 27 turn relied on the Supreme Court‟s decision in United States v. Shearer, 473 U.S. 52 (1985). In 28 Shearer, Army Private Vernon Shearer was off-duty and away from base when he was kidnapped 6 1 and murdered by another serviceman, Andrew Heard. 473 U.S. at 53. Shearer‟s mother brought 2 suit under the FTCA, alleging the Army had been negligent because it knew Heard was dangerous 3 and yet had “„failed to exert a reasonably sufficient control over‟ him and „failed to warn other 4 persons that he was at large.‟” Id. at 53-54. The Court held that Feres barred the action because it 5 would entail the “hal[ing] [of] Army officials into court to account for their supervision and 6 discipline of Private Heard,” id. at 59, explaining that 7 8 9 10 [t]o permit this type of suit would mean that commanding officers would have to stand prepared to convince a civilian court of the wisdom of a wide range of military and disciplinary decisions; for example, whether to overlook a particular incident or episode, whether to discharge a serviceman, and whether and how to place restraints on a soldier‟s off-base conduct. United States District Court Northern District of California 11 Id. at 58. Even though respondent focused on her claims on the Army‟s negligence, 12 “characterizing her claim as a challenge to a „straightforward personnel decision[,]‟” the Supreme 13 Court rejected this argument, asserting that “[b]y whatever name it is called, it is a decision of 14 command.” Id. at 59. The Court thus held that Feres barred Shearer‟s mother‟s FTCA claim. 15 The Ninth Circuit subsequently adhered to the Shearer rationale in upholding the dismissal 16 of a wrongful death action that alleged that the military was negligent in its supervision of a 17 known paranoid schizophrenic with dangerous tendencies who killed an off-duty serviceman. 18 McAllister, 942 F.2d at 1477-79. There, the complaint alleged 19 20 21 22 23 24 25 26 The direct and proximate cause of the death of the decedent was the negligence of the defendant, the Department of the Army and its agents and employees[,] in carelessly, wrongfully and negligently failing to properly supervise, control and treat said Private Tarver and in failing to otherwise protect the decedent, William F. McAllister, from said Private Leon Tarver when defendant, it‟s [sic] employees and agents knew or should have known that Private Tarver posed a foreseeable risk of harm to the public. The supervision, control and treatment of said Private Leon Tarver did not require defendants, employees, and agents to exercise complex, subtle, and professional judgment as to composition, training [,] equipping and controlling of a military force. Id. at 1478 n.3. As much as the Court may wish to ignore the parallels between McAllister and the 27 28 7 1 allegations in this case, they are much too similar to do so.2 Plaintiff attempts to distinguish Feres and its progeny, acknowledging those cases contain 2 “one unifying principle: courts do not want to second guess military management or military 4 discipline.” Opp‟n at 12 (citing Feres, 340 U.S. at 136; Shearer, 473 U.S. at 58; Persons v. 5 United States, 925 F.2d 292 (9th Cir. 1991)); see also Schoenfeld, 492 F.3d at 1019 (recognizing 6 the interest in maintaining military discipline is “the most persuasive justification” for the Feres 7 doctrine). But he claims that is not the issue here. Rather, Plaintiff generally argues (A) “many of 8 the defendant‟s wrongful acts willfully or recklessly disregarded non-discretionary” military and 9 USMC Orders, e.g., “it is uniform policy of the Marine Corps to require all personally-owned fire 10 arms to be stored at the base armory, yet the Command here failed to (1) notify incoming Marines 11 United States District Court Northern District of California 3 of this policy and (2) enforce the base order”; and (B) there is “nothing distinctly military about 12 the negligence” alleged in this case and the same type of negligence could just as easily been 13 alleged in a non-military, private civilian context. See Opp‟n 13-14. There is some internal 14 conflict in this logic, i.e., saying that Defendant‟s negligence stems from failure to follow military 15 rules but at the same point arguing that those acts were not distinctly military—nonetheless, the 16 Court understands Plaintiff‟s point to be that some of Defendant‟s negligent acts relate to violating 17 mandatory military orders, and other acts demonstrate more general failure to exercise due care 18 under the circumstances. 19 There are two problems with Plaintiff‟s first argument. First, Plaintiff has cited no 20 authority for this proposition. The only case Plaintiff relies on is Berkovitz v. United States, 486 21 U.S. 531, 548 (1980), which Plaintiff acknowledges held that “the discretionary function 22 exception to the FTCA does not shield a Federal agency that does not comply with mandatory 23 rules.” Opp‟n at 13. The discretionary function exception to the FTCA is not related to the Feres 24 doctrine, and the holding has no bearing on this case. Second, when it comes to assessing whether 25 and how to enforce military orders and rules, permitting a suit on such grounds directly implicates 26 the concern about second-guessing military decisions and Shearer‟s statement that it would mean 27 2 28 Plaintiff‟s Opposition does not mention or attempt to distinguish McAllister. See generally Opp‟n. 8 1 commanding officers “would have to stand prepared to convince a civilian court of the wisdom of 2 a wide range of military and disciplinary decisions; for example, whether to overlook a particular 3 incident or episode . . . .” 473 U.S. at 58. The Court therefore cannot say that simply because the 4 military has orders or rules on a subject means that the concerns underlying Feres and its progeny 5 can be overcome. As to Plaintiff‟s second argument, the Supreme Court “has sent the message that . . . an 6 7 individual can, based solely upon his status as a member of the armed forces, be proscribed from 8 enjoying the same legal remedies as his civilian counterparts.” 3 Mark G. Maser, Torts - Feres 9 Doctrine - United States Courts of Appeals Consistently Hold That Members of the Armed Forces Are Barred from Bringing Suits Against the Government When Service Members Are Injured 11 United States District Court Northern District of California 10 Incident to Military Sponsored Sports and Recreational Activities, 12 Seton Hall J. Sport L. 333, 12 359 (2002); see also Costo, 248 F.3d at 867 (“If the fear is that civilian courts will be permitted to 13 second-guess military decisions, then even civilian suits that raise such questions should be barred. 14 But they are not.” (citation omitted)). While Plaintiff cites a handful of cases that seem to 15 recognize the civilian/military distinction as a basis for withholding the application of Feres, they 16 have done so under markedly different circumstances from those here. See Schoenfeld, 492 F.3d 17 at 1026 (noting “the neglected damage to the guardrail in this case could just as easily have existed 18 on a non-military road” but also acknowledging “[t]here was nothing distinctly military about the 19 earlier car crash that created it, nor about the dangerous condition itself.”); Dreier v. United States, 20 3 21 22 23 24 25 26 27 28 This was not always the case. As the Ninth Circuit recognized, Brooks v. United States, 337 U.S. 49 (1949) seemed to hold otherwise. See McAllister, 942 F.2d at 1477. Specifically, in Brooks, the Supreme Court held that the tort suit brought by two servicemen (brothers) struck by a military-owned vehicle driven by a civilian employee of the Army while they were out on furlough and driving along a public highway could proceed, thereby rejecting the contention that the brothers‟ father, riding in the same car, could recover for his injuries but there could be no liability to the sons, solely because they were in the Army. See 337 U.S. at 52. The Supreme Court rejected the contention primarily because the brothers were on leave at the time, which was not analogous to that of a soldier injured while performing his duties under orders. Id. (“[W]e are dealing with an accident which had nothing to do with the Brooks‟ army careers, injuries not caused by their service except in the sense that all human events depend upon what has already transpired.”). But as the McAllister court noted, “[i]f the evolution of the Feres doctrine had stopped in 1950, appellants would have the better argument” in regard to the civilian/military distinction. 942 F.2d at 1477. But ultimately, subsequent cases “have expanded greatly the factual circumstances under which the conduct of military personnel will be deemed „incident to service.‟” Id. 9 106 F.3d 844, 853-54 (9th Cir. 1996), as amended (Feb. 4, 1997) (noting “Ronald was in the same 2 position as any civilian would have been at the time of the government‟s negligence” and that “the 3 same type of negligence [] could be alleged against a completely private water treatment plant” 4 but also noting “[t]his case makes no allegations of inadequate military supervision or training”). 5 The Court is thus left with the nature of Plaintiff‟s allegations, which all ultimately 6 implicate military management and decision-making. Plaintiff alleges Defendant was negligent in 7 the following respects: (1) failing to consciously and deliberately transfer Lopez‟s medical 8 records; (2) failing to ensure Lopez registered and stored his weapons in the armory; (3) failing to 9 discuss and remedy Lopez‟s mental health issues at the Command‟s FPB; (4) giving Lopez the 10 master key, in violation of a Marine Corps Order; (5) putting a Marine who had multiple Non- 11 United States District Court Northern District of California 1 Judicial Punishments and was in the process of being administratively discharged on Duty as the 12 Sentry and in-possession of the master key; (6) failing to enforce non-discretionary Department of 13 Defense and Marine Corps orders; (7) failing to provide emergency medical attention immediately 14 after the shooting; and (8) failing to contact local civilian authorities to assist. Compl. ¶ 43; see 15 Mot. at 5-6 (arguing that “each of those steps would go „directly to the “management” of the 16 military‟ and „call into question basic choices about the discipline, supervision, and control of a 17 serviceman.‟” (quoting Shearer, 473 U.S. at 58). The Court reluctantly agrees with Defendant that 18 Plaintiff‟s allegations all implicate the concerns sheltered by Feres‟ progeny. See Ritchie v. 19 United States, 733 F.3d 871, 876 (9th Cir. 2013) (recognizing that courts have noted such 20 concerns as the fact “that adjudication of her claim would require a court to „examine the 21 government‟s activity in relation to military personnel on active duty‟” and would “require 22 members of the Armed Services to testify in court as to each other‟s decisions and actions.” 23 (quotations omitted)). 4 24 25 26 27 28 4 This is the first time the undersigned has dealt with the Feres doctrine, and it strikes the Court that this doctrine—or at least the way it has been interpreted—is inconsistent with the plain language of the statutory exception of the FTCA. See 28 U.S.C. § 2680(j). But as the Costo court recognized, “until Congress, the Supreme Court, or an en banc panel of [the Ninth Circuit] reorients the [Feres] doctrine, [courts] are bound to follow” this doctrine. 248 F.3d at 869; but see id. at 869 (Ferguson, J., dissenting) (challenging the constitutionality of Feres doctrine on equal protection and separation of powers grounds). 10 CONCLUSION 1 2 In light of the foregoing, the Court must GRANT Defendant‟s Motion to Dismiss 3 Plaintiff‟s Complaint. As the fundamental nature of Plaintiff‟s allegations implicate the Feres 4 doctrine, and there is no indication that Plaintiff would be able to allege new or different facts to 5 bring this case out of Feres‟ purview, the Court must DISMISS Plaintiff‟s Complaint WITH 6 PREJUDICE. The Clerk of Court shall close the file. 7 IT IS SO ORDERED. 8 9 10 United States District Court Northern District of California 11 Dated: June 21, 2017 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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