Fantelli v. United States of America et al

Filing 14

ORDER granting defendant's 9 motion to dismiss the third cause of action against the United States for failure to supervise or train. Signed by Judge Larry Alan Burns on 10/1/13. (kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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BROOKE FANTELLI,

CASE NO. 12cv2887-LAB (DHB)

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Plaintiff,

ORDER GRANTING
DEFENDANT’S MOTION TO
DISMISS

vs.
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UNITED STATES OF AMERICA,
Defendant.

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Plaintiff Brooke Fantelli asserts five claims against the United States and Bureau of

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Land Management Rangers arising out of a confrontation in the Imperial County desert

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during which she was tased. Now before the Court is the government’s motion to dismiss

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Fantelli’s third cause of action for failure to supervise and train, which it argues is barred

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under the Federal Tort Claims Act. This is a jurisdictional challenge under Federal Rule of

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Civil Procedure 12(b)(1).

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I. Factual Allegations

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On October 22, 2011, Fantelli brought an off-road Datsun pickup truck to the desert

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with two female models and their photographer for a photo-shoot. Ranger Peter from the

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Bureau of Land Management approached her and the others and asked for identification.

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Fantelli is in the process of a gender change, and her driver’s license still identified her as

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a male named Rodd Fantelli. After Ranger Peter confronted Fantelli about this discrepancy,

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Fantelli alleges that he became hostile, ultimately returning to his truck but watching Fantelli

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and the others for over an hour. Fantelli subsequently approached him to ask if he would

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move along because the models were uncomfortable. Ranger Peter then told Fantelli she

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was under arrest, and at the same time several Imperial County Sheriff’s Deputies arrived.

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Ranger Peter allegedly drew his stun gun and Fantelli responded by putting her hands in the

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air. According to Fantelli, Ranger Peter then asked Fantelli to lay on the ground face down,

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and after Fantelli commented that it was not necessary, he shot her with his stun gun in her

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abdomen. Fantelli fell to the ground and Ranger Peter allegedly shot her again, this time in

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her genitals. Ranger Peter handcuffed Fantelli, and Fantelli alleges he ripped out the stun

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gun probe from her genitals but left the probe in her abdomen.

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II. Legal Standard

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Federal Rule of Civil Procedure 12(b)(1) allows a defendant to move to dismiss a

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complaint for lack of subject matter jurisdiction. As with a motion to dismiss for failure to

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state a claim under Rule 12(b)(6), all factual allegations are presumed to be true and

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construed in a light most favorable to the plaintiff. Doe v. Schachter, 804 F. Supp. 53, 56-57

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(N.D. Cal. 1992). The court will dismiss a complaint “for lack of subject matter jurisdiction

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if: (1) the claim does not 'arise under' federal law or the Constitution; (2) there is no case or

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controversy; or (3) the cause of action is not described in any jurisdictional statute." Id. at 57.

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III. Discussion

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For a plaintiff to bring a claim against the United States, it (meaning Congress) must

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expressly waive its sovereign immunity. United States v. Testan, 424 U.S. 392, 399 (1976).

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That is what the Federal Tort Claims Act does; the United States is liable for tort claims in

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the same manner and extent that a private person would be liable. 28 U.S.C. § 2674.

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However, the FTCA includes several exceptions to this waiver of sovereign immunity, one

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of which is the discretionary function exception. 28 U.S.C. § 2680. This exception covers

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any claim “based upon the exercise or performance or the failure to exercise or perform a

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discretionary function or duty on the part of a federal agency or an employee of the

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government, whether or not the discretion involved be abused.” A claim survives a motion

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to dismiss for lack of subject matter jurisdiction only if it falls “facially outside the

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discretionary function exception.” Doe v. Holy See, 557 F.3d 1066, 1084 (9th Cir. 2009).

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Courts apply a two-step test to determine whether the discretionary function exception

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applies in a given case. Nurse v. United Stated, 226 F.3d 996, 1001 (9th Cir. 2000). First,

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the challenged conduct must involve “an element of judgment or choice.” Berkovitz v United

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States, 486 U.S. 531, 536 (1988). If there is a required statute, rule, or regulation that

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governs the conduct, then there is no such element. Tonelli v. U.S., 60 F.3d 492, 496 (8th

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Cir. 1995) (citing Berkovitz, 486 U.S. at 536)). Second, the conduct involving an element of

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judgment or choice is protected if it pertains to “social, economic, and political policy.” U.S.

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v. Varig Airlines, 467 U.S. 797, 814 (1984). Courts have held that Congress intended the

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discretionary function exception to protect decisions pertaining to the hiring, training, and

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supervising of employees, because that conduct implicates policy considerations. See

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Vickers v. U.S., 228 F.3d 944, 950 (9th Cir.2000) (citing cases). Applying these two factors,

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Fantelli has not brought a claim that is facially outside of the discretionary function exception,

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and thus consented to by the United States under the FTCA.

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First, Fantelli has not cited any statute, rule, or regulation that applies to the

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government’s conduct. Fantelli instead argues that the government failed to supervise or

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train its employees in respecting arrestees’ constitutional rights. That argument fails. The

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Constitution does not tell the government how to supervise and train its employees. In fact,

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this Court held just that and granted an identical motion to dismiss in a recent case. See

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Gourge v. U.S., Case No. 12-CV-1490, 2013 WL 1797099 at *2-3 (S.D.Cal. Apr. 29, 2013).

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It held that since there was no specific mandate for the training and supervision of its

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employees, the conduct involved an element of judgment and thus fell within the

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discretionary function exception of the FTCA.

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Second, the government’s training and supervising of its employees is a matter of

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policy, and one that Congress envisioned would be protected by the discretionary function

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exception. See Gager v. U.S., 149 F.3d 918, 920-22 (9th Cir.1998). Since the cause of

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//

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action falls “squarely within the discretionary function exception,” then, the claim is barred.

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Nurse, 226 F.3d at 1001-02.

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In her opposition, Fantelli cites two cases that found employees of various United

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States agencies liable under 42 U.S.C. § 1983. But those cases were brought against

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employees of various United States agencies under Bivens, and therefore miss the mark.

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Furthermore, in her opposition brief, Fantelli asserts that the “cause of action is not an FTCA

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cause of action” but instead “based on a constitutional deprivation.” Be that as it may, a

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deprivation of constitutional rights is still a tort, and Fantelli can only sue the United States

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for one under the Federal Tort Claims Act.

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IV. Conclusion

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The Court lacks subject matter jurisdiction over Fantelli’s claim against the

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government for failure to supervise or train. It is covered by the discretionary function

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exception of the FTCA. For the reasons set forth above, the government’s motion to dismiss

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Fantelli’s third cause of action against the United States for failure to supervise or train is

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GRANTED.

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IT IS SO ORDERED.
DATED:
___________________________________
HONORABLE LARRY ALAN BURNS
United States District Judge

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