Rivera-Vazquez v. Unknown United States Customs & Border Patrol Agents

Filing 14

ORDER modifying 11 Report and Recommendation and adopting Report and Recommendation as modified, and denying 10 Ex Parte Motion for Leave to Amend. Rivera-Vazquez may not amend to add FTCA claims for assault and battery or excessive force. But if he thinks he can successfully add a claim for negligence, he should file a renewed ex parte application by May 18, 2016. Signed by Judge Larry Alan Burns on 5/2/16. (kas) (Main Document 14 replaced on 5/3/2016) (kas). Modified on 5/3/2016 to add correct document and correct filed date (kas).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DIEGO RIVERA-VAZQUEZ,

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CASE NO. 14cv2207-LAB (BGS)
Plaintiff,

ORDER MODIFYING REPORT AND
RECOMMENDATION, AND ADOPTING
REPORT AND RECOMMENDATION
AS MODIFIED;

vs.
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UNKNOWN U.S. CUSTOMS & BORDER
PATROL AGENTS,

ORDER DENYING EX PARTE MOTION
FOR LEAVE TO AMEND

Defendants.

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Plaintiff Diego Rivera-Vazquez filed this action, raising claims under Bivens v. Six

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Unknown Named Agents, 403 U.S. 388 (1971). He then filed an ex parte application for

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leave to amend, to add claims under the Federal Tort Claims Act (FTCA). By local rule, his

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motion was referred to Magistrate Judge Bernard Skomal for a report and recommendation.

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On March 21, 2016, Judge Skomal issued his report and recommendation (the

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"R&R"), recommending that leave to amend be denied, because the proposed amended

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complaint did not allege exhaustion of his administrative remedies. See Gillespie v. Civiletti,

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629 F.2d 637, 640 (9th Cir. 1980) (plaintiff bringing FTCA action must allege exhaustion of

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remedies). Rivera-Vazquez objected to the R&R, admitting his proposed amended complaint

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did not allege exhaustion, but representing that he did exhaust his remedies and could

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properly allege that he did.
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14cv2207

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A district court has jurisdiction to review a Magistrate Judge's report and

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recommendation. Fed. R. Civ. P. 72(b). "The district judge must determine de novo any part

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of the magistrate judge's disposition that has been properly objected to." Id. "A judge of the

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court may accept, reject, or modify, in whole or in part, the findings or recommendations

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made by the magistrate judge." 28 U.S.C. § 636(b)(1).

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The R&R cites older precedents for the principle that, ordinarily, courts do not

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consider the validity of a proposed amended pleading in deciding whether to grant leave to

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amend. (R&R at 2:5–8.) While this standard has been repeated in some newer cases in

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district courts within this circuit, see, e.g., Green Valley Corp. v. Caldo Oil Co., 2011 WL

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1465883, at *6 (N.D. Cal., Apr. 18, 2011) (citing cases), it appears to be a holdover from the

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old, lenient pleading standard under Conley v. Gibson, 355 U.S. 41 (1957). After Conley's

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overruling by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556

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U.S. 662 (2009), it has become much easier for federal courts to determine when

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amendment would be futile. And when it is apparent that amendment would be futile, and

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amending would only result in needless delay and expense, a federal court should deny

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leave. See Fed. R. Civ. P. 1. In the Court’s own experience, denying leave to amend for this

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reason is not unusual. The Court therefore disapproves of this legal standard and the R&R

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is deemed modified to omit it.

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When he was preparing the R&R, Judge Skomal did not have the benefit of Rivera-

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Vazquez's representation that he had exhausted his FTCA claims.

The R&R's

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recommendation is correct insofar as it recommends denying leave to amend the complaint

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to add FTCA claims where exhaustion is not alleged. But in light of Rivera-Vazquez’s

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representations, it is clear he is now prepared to allege exhaustion. The R&R is therefore

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deemed modified to recommend allowing amendment subject to those conditions.

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Because the R&R recommended denying leave to amend, it had no occasion to

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address the merits of the proposed FTCA claims. Rivera-Vazquez proposed adding a claim

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for assault and battery, a claim for excessive force, and a claim for negligence. The assault

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and battery claim is an intentional tort, and as such is specifically excluded from the FTCA’s
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14cv2207

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sovereign immunity waiver. See 28 U.S.C. § 2680(h). The excessive force claim is

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somewhat more complex, because as Rivera-Vazquez proposes to plead it, it is a hybrid

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between assault and excessive force by law enforcement officers incident to arrest, which

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could be either intentional or negligent. To the extent it is an intentional tort, it is barred. But

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even if it is not barred, use of excessive force in violation of constitutional rights is not a tort

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that a private person can commit. As such, it cannot be brought under the FTCA. See

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Reynosa v. Prater, 2013 WL 5937223, at *4 (S.D.Cal., Nov. 4, 2013) (citing cases for the

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principle that an excessive force claim against law enforcement officers is improper under

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the FTCA).

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The proposed negligence claim is not necessarily barred, but it is inadequately pled.

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In part it is merely a reiteration of the excessive force claim, but it mentions negligence as

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well. It identifies both direct liability for harm the officers caused, and employer liability on

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some kind of failure to train theory, but without specifying what the United States failed to

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do. It also, without explanation mentions failure to “timely cause the administration of life-

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saving aid to a person inside a burning car.” (Prop’d Second Amd. Compl., ¶ 65.) But the

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pleadings do not refer to any kind of car fire, or injury from burning; the only alleged injury

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was from a beating.

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Adding the assault and battery and excessive force claims would therefore be futile,

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and will be denied. Rivera-Vazquez may be able to amend to add a negligence claim, but

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he has not shown that he can successfully do so. Accordingly, his request is DENIED

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WITHOUT PREJUDICE as to the negligence claim.

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With these modifications, the R&R is ADOPTED, and the ex parte motion for leave

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to amend (Docket no. 10) is DENIED. Rivera-Vazquez may not amend to add FTCA claims

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for assault and battery or excessive force. But if he thinks he can successfully add a claim

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///

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///

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///
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for negligence, he should file a renewed ex parte application by May 18, 2016. His renewed

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application must show that he can remedy all the defects this order has identified.

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IT IS SO ORDERED.
DATED: May 2, 2016

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HONORABLE LARRY ALAN BURNS
United States District Judge

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14cv2207