Arellano, Jr. v. San Diego, County of et al

Filing 221

ORDER Granting 209 Defendants' Motion to Dismiss: Plaintiff may file a third amended complaint within thirty days of the date of thisorder amending only his §§ 1985(3) and 1986 claims against Defendant Guerrero. Failureto timely file a third amended complaint will result in dismissal of the action for failure toprosecute. Signed by Judge Jinsook Ohta on 9/14/2023. (All non-registered users served via U.S. Mail Service)(exs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAUL ARELLANO, JR.,

Case No.: 3:14-cv-02404-JO-KSC
Plaintiff,

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v.

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COUNTY OF SAN DIEGO et al.,

ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS

Defendants.

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Plaintiff Raul Arellano, Jr. is a state prisoner incarcerated at Richard J. Donovan

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Correctional Facility. Proceeding pro se and in forma pauperis (IFP), he filed a second

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amended civil rights complaint alleging that federal marshals violated his constitutional

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rights when they arrested him in Mexico. See Dkt. 62 (“SAC”). Defendant United States

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filed a motion to dismiss the SAC. Dkt. 209. Because Plaintiff is proceeding IFP, the

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Court also screens his amended complaint pursuant to 28 U.S.C. § 1915 in addition to

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addressing the United States’ motion to dismiss. For the reasons explained below, the

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Court grants the motion to dismiss and also dismisses the remaining claims in this case.

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///

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3:14-cv-02404-JO-KSC

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I. BACKGROUND

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Plaintiff’s suit centers on his allegations that federal marshals used excessive force

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when they arrested him in Mexico pursuant to a warrant. On January 4, 2010, the San

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Diego County Superior Court in El Cajon issued a warrant for Plaintiff’s arrest after he

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failed to appear for a court hearing. Dkt. 62 (“SAC”) at 8. U.S. Marshal P. Beal organized

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an operation to capture Plaintiff while he was in Mexico. Id. at 13. On November 7, 2010,

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U.S. Marshal Jesus Guerrero and Mexican state agents from the Policia Estatal Preventiva

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(“PEP”) located and arrested Plaintiff inside a hotel lobby in Tijuana, Mexico. Dkt. 62

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(“Arrest Report”) at 1. Plaintiff resisted arrest but was eventually taken into custody. Id.

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Plaintiff alleges that officials threatened and attacked him both during and after his

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arrest. Marshal Guerrero kicked a handcuffed Plaintiff in the ribs and told him “[this] is

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Mexico and [I] can do what [I] want because no policy prevents [me from doing so].” SAC

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at 8. Guerrero further threatened Plaintiff by informing him that the Mexican agents are

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“going to make sure you understand why [you are] better off not saying [anything] when

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you get transferred to San Diego County Jail.” Id. at 8–9. After Plaintiff’s arrest, the

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Mexican PEP agents escorted Plaintiff into a vehicle where they tortured him for two hours.

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Id. at 9. When Plaintiff arrived at an immigration facility in Mexicali, PEP agents

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continued to torture him. Id. at 9–10; Arrest Report at 1. On November 10, 2010, PEP

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agents deported Plaintiff to the United States where Guerrero transported Plaintiff to the

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San Diego County Central Jail (“Central Jail”). SAC at 11; Arrest Report at 2.

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Based on the above facts, Plaintiff filed suit against (1) the County of San Diego; (2)

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the City of San Diego; (3) the City of El Cajon; (4) Guerrero Bail Bonds; (5) bondsman

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Henry L. Guerrero; (6) the San Diego Regional Fugitive Task Force; (7) the United States

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Marshal’s Office; (8) U.S. Marshal Jesus Guerrero; (9) U.S. Marshal P. Beal; and (10) the

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United States for violating his constitutional rights during his arrest and detention in

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Mexico. After a series of Court orders,1 the only defendants currently remaining in this

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action are U.S. Marshals Guerrero and Beal and the United States. See Dkts. 58, 87, 181.

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Against Guerrero, Plaintiff alleges claims for violation of 42 U.S.C. §§ 1985(3) and 1986;

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and a Bivens claim for use of excessive force in violation of the Fourth Amendment.

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Against Beal, Plaintiff alleges a claim for violation of 42 U.S.C. § 1983. Against the United

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States, Plaintiff alleges various tort claims of (1) negligence; (2) assault; (3) battery; (4)

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false imprisonment; and (5) intentional infliction of emotional distress.

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Defendant United States filed a motion to dismiss for lack of jurisdiction because

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Plaintiff failed to exhaust his tort claims against the government. It argues Plaintiff did not

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present these tort claims against the United States to the appropriate federal agency prior

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to filing this suit. SAC at 3; Dkt. 209-1 (“Kim Decl.”) at ¶¶ 3–6.

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II. LEGAL STANDARD

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A party may challenge a complaint under Federal Rule of Civil Procedure 12(b)(1)

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for lack of subject matter jurisdiction. “Federal courts are courts of limited jurisdiction

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[and] possess only that power authorized by Constitution and statute.” Kokkonen v.

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Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Pursuant to Rule 12(b)(1), a

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party may seek dismissal of an action for lack of subject matter jurisdiction by asserting a

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facial challenge or a factual challenge. Fed. R. Civ. P. 12(b)(1); Warren v. Fox Family

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Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). In a facial challenge, the court limits

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its inquiry to the allegations set forth in the complaint and considers the complaint’s

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allegations to be true and draws all reasonable inferences in the plaintiff’s favor. Safe Air

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for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004); Doe v. Holy, 557 F.3d 1066,

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1073 (9th Cir. 2009). Where the moving party asserts a factual challenge, based on the

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legal sufficiency of the jurisdictional facts, the court may review any evidence necessary,

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The case was originally filed on October 8, 2014 and assigned to District Court Judge Janis L.
Sammartino and transferred to District Court Judge Gonzalo P. Curiel on February 3, 2020 and
subsequently transferred to the undersigned on January 5, 2022.
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such as affidavits and testimony, in order to determine whether subject matter jurisdiction

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exists. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). The plaintiff has the

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burden of showing that the court has subject matter jurisdiction over the action. Ass’n of

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Am. Med. Colleges v. United States, 217 F.3d 770, 778–79 (9th Cir. 2000).

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Also, because Plaintiff was granted leave to proceed IFP, his second amended

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complaint must undergo a sua sponte screening for dismissal. Pursuant to 28 U.S.C. §

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1915(e)(2)(B), the Court must screen a prisoner’s IFP complaint and sua sponte dismiss it

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to the extent it is frivolous, malicious, fails to state a claim upon which relief may be

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granted, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d

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1122, 1126–27 (9th Cir. 2000) (en banc); see also Rhodes v. Robinson, 621 F.3d 1002,

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1004 (9th Cir. 2010) (same with respect to 28 U.S.C. § 1915A(a) & (b)(1)). “The standard

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for determining whether a plaintiff has failed to state a claim upon which relief can be

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granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure

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12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th

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Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (“Failure to

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state a claim under § 1915A incorporates the familiar standard applied in the context of

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failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 12(b)(6)

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requires that a complaint “contain sufficient factual matter . . . to state a claim to relief that

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is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation

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marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. While detailed factual allegations are not required, “[t]hreadbare

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recitals of the elements of a cause of action, supported by mere conclusory statements, do

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not suffice” to state a claim. Id. at 678.

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III. DISCUSSION

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The Court first examines Defendant United States’ motion to dismiss on grounds

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that Plaintiff failed to exhaust his tort claims against the government. Next, the Court will

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screen Plaintiff’s remaining Bivens, §§ 1983, 1985(3), and 1986 claims against Defendants

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Beal and Guerreo to determine whether they state a legally valid claim for relief.

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A. Exhaustion of Tort Claims Against the United States

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Defendant United States argues that Plaintiff’s tort claims against it are barred

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because he failed to properly exhaust them prior to filing suit. The Federal Tort Claims

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Act (“FTCA”) is the exclusive remedy for tortious conduct by the United States and its

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employees. F.D.I.C. v. Craft, 157 F.3d 697, 706 (9th Cir. 1998); see also Kennedy v. U.S.

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Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998). The FTCA waives the United States’

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traditional sovereign immunity to allow suit for torts committed by its employees. 28

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U.S.C. §§ 1346(b), 2674. Before a plaintiff can file a claim against the United States under

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the FTCA in federal court, the plaintiff must first present the claim to the appropriate

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federal agency and be denied by the agency. 28 U.S.C. § 2675(a). A tort claim against the

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United States is barred unless it is presented in writing to the appropriate federal agency

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within two years after the claim accrues. 28 U.S.C. § 2401(b). The FTCA’s exhaustion

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requirement is “jurisdictional in nature”; thus, a federal district court cannot adjudicate

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FTCA claims until the final denial of plaintiff’s administrative remedies by the appropriate

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federal agency. Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006); McNeil

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v. United States, 508 U.S. 106, 111 (1993).

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Here, the Court finds that Plaintiff has not met his exhaustion requirements under

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the FTCA because he failed to present his tort claims to the appropriate agency prior to

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filing suit. In his second amended complaint, Plaintiff appears to assert that he exhausted

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his claims with respect to marshals Beal and Guerrero: in response to the question “Have

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you previously sought and exhausted all forms of available relief from the proper

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administrative officials?” on the form complaint, he responds, “I don’t need to file; except

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for the one for U.S. marshals which I have.” SAC at 3. He does not, however, identify the

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agency to which he submitted his claims. Id. Nor does he inform the Court when he filed

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these claims with a federal agency and when the agency denied these claims. See also

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Harris v. United States, 2019 WL 7834813, at *7–8 (C.D. Cal. Nov. 1, 2019), report and
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recommendation adopted, 2020 WL 402126 (C.D. Cal. Jan. 24, 2020) (explaining that

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vague and unsubstantiated claims of exhaustion are insufficient). He also fails to provide

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any documentation showing that he filed an administrative complaint pertaining to his state

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law claims. Ahlin v. Soc. Sec. Off., 2007 WL 1302427, at *3 (E.D. Cal. May 3, 2007)

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(dismissing complaint when plaintiff fails to show that she filed an administrative

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complaint pursuant to the FTCA).

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exhaustion, Defendant United States submitted a declaration from the U.S. Marshals

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Service stating that the agency conducted a search of its database and did not find any

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administrative claims filed by Plaintiff. Kim Decl. at ¶¶ 3–6; see, e.g., Plante v. United

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States, 2009 WL 2045692, at *2 (S.D. Cal. July 8, 2009) (considering declaration from

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Department of Health and Human Services on a 12(b)(1) motion to dismiss to determine if

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plaintiff complied with the FTCA exhaustion requirement); Alvarez v. United States, 2017

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WL 3723926, at *2 (S.D. Cal. Jan. 17, 2017) (same). Based on the above, the Court finds

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that Plaintiff has not met his burden of establishing that he has exhausted his tort claims

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prior to filing suit. Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980). The Court,

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therefore, GRANTS the United States’ motion to dismiss Plaintiff’s tort claims against it—

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his claims for negligence, assault, battery, false imprisonment, and intentional infliction of

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emotional distress—for lack of jurisdiction.

Countering Plaintiff’s unsubstantiated claim of

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The Court dismisses these claims with prejudice because further amendment would

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be futile. The Court finds that Plaintiff has failed to exhaust his claims to date, and Plaintiff

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could not now seek to exhaust his claims because the deadline for presenting these claims

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to the appropriate agency—two years after their occurrence—has passed. See, e.g., Tsu v.

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Tracy Fed. Bank, 1998 WL 118190, at *1 (N.D. Cal. Feb. 27, 1998), aff'd, 172 F.3d 59

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(9th Cir. 1999) (dismissing with prejudice FTCA claims when plaintiff failed to file an

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administrative claim within the two-year limitations period); Greene v. Segal, 2008 WL

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11336820, at *3 (C.D. Cal. June 12, 2008) (same).

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B. § 1983 Claim

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The Court now turns to screening the remainder of Plaintiff’s complaint pursuant to

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28 U.S.C. § 1915, starting with his § 1983 claim against federal officer Beal. To state a

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claim for relief under § 1983, a plaintiff must plead that the defendant (1) acted under color

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of state law and (2) deprived him of a right secured by the Constitution. Johnson v.

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Knowles, 113 F.3d 1114, 1117 (9th Cir. 1997). A person acts under color of state law if

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the person “exercise[s] power possessed by virtue of state law and made possible only

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because the wrongdoer is clothed with the authority of state law.” West v. Atkins, 487 U.S.

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42, 49 (1988) (quotations omitted). Because federal agents act pursuant to federal law, not

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state law, § 1983 precludes liability for federal agents. Morse v. N. Coast Opportunities,

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Inc., 118 F.3d 1338, 1343 (9th Cir. 1997). Here, Plaintiff fails to state a § 1983 claim

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against Beal because the statute does not authorize a cause of action against federal agents.

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See id. (“[Plaintiff’s] complaint is invalid on its face in its reliance upon § 1983 as a cause

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of action against alleged federal government actors.”). Accordingly, the Court dismisses

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Plaintiff’s § 1983 claim with prejudice. Id. Further amendment would be futile because §

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1983 precludes liability for federal government actors; any such claims against these

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federal actors are invalid on their face. Id.

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C. Bivens Claim

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In screening Plaintiff’s complaint, the Court next turns to examining whether

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Plaintiff alleged a legally cognizable Bivens claim. A plaintiff may bring constitutional

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violation claims against federal actors pursuant to Bivens v. Six Unknown Named Agents

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of the Fed. Bur. of Narcotics, 403 U.S. 388 (1971). Such claims are considered the “federal

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analogue” to § 1983 claims against state actors. Hartman v. Moore, 547 U.S. 250, 254,

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255 n.2 (2006). In Bivens, the Supreme Court inferred a cause of action for damages

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against agents from the Federal Bureau of Narcotics for an unreasonable search and seizure

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in violation of the Fourth Amendment even though no federal statute authorized such a

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claim. Bivens, 403 U.S. at 395–97. Since then, the Supreme Court has recognized an

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implied cause of action under the Constitution (“Bivens claim”) in two other contexts: (1)

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a Fifth Amendment due process claim by a former congressional staffer for sex
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discrimination; and (2) an Eighth Amendment claim for cruel and unusual punishment

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against federal jailers for failing to treat a prisoner's severe asthma. Davis v. Passman, 442

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U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980). These three cases—Bivens, Davis,

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and Carlson—are the only cases in which the Supreme Court has approved of an implied

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damages remedy under the Constitution. Ziglar v. Abbasi, 582 U.S. 120, 131 (2017).

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Outside of these three Supreme Court-approved contexts, courts must go through the

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following two steps before allowing a plaintiff to proceed with a cause of action under

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Bivens: (1) determine whether the case presents a “new Bivens context” different from the

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three cases in which the Supreme Court implied a damages action; and (2) if the case

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presents a new Bivens context, ask if there are “special factors” indicating that the judiciary

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may be less equipped than Congress to “weigh the costs and benefits of allowing a damages

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action to proceed.” Pettibone v. Russell, 59 F.4th 449, 454–55 (9th Cir. 2023) (citing

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Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022)). If the case presents a new Bivens context

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and the court finds at least one “special factor,” the court cannot infer a private right of

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action. Pettibone, 59 F.4th at 455. The Court addresses each step below.

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1. A New Bivens Context

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The Court first examines whether Plaintiff’s claims that federal officers used

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excessive force against him present a “new Bivens context.” A context is “new” when it is

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meaningfully different from the three cases—Bivens, Davis, and Carlson—in which the

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Supreme Court has implied a damages action. Egbert, 142 S. Ct. at 1803. The Supreme

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Court has provided a non-exhaustive list of differences that are “meaningful enough” to

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make a new Bivens context:

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The rank of the officers involved; the constitutional right at issue; the generality or

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specificity of the official action; the extent of judicial guidance as to how an officer

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should respond to the problem or emergency to be confronted; the statutory or other

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legal mandate under which the officer was operating; the risk of disruptive intrusion

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by the Judiciary into the functioning of other branches.

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Ziglar, 582 U.S. at 140. For example, in Hernandez v. Mesa, a border patrol agent shot

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and killed a 15-year-old Mexican national because the agent believed the youth was

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attempting an illegal border crossing into the United States. 140 S. Ct. 735, 740 (2020).

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The parents subsequently sued the border patrol agent alleging excessive use of force in

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violation of the Fourth Amendment. Id. In this case, the Supreme Court analyzed the

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differences in the specific constitutional rights at issue, excessive use of force compared to

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an unreasonable search and seizure in Bivens, and the nature of the misconduct by the

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federal agents, a shooting compared to a warrantless search in Bivens. Id. at 743–44.

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Ultimately, the Supreme Court concluded that an excessive-force shooting by a border

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patrol officer presented a meaningfully different context than the Bivens scenario of a

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warrantless search into an apartment. Id.

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Under this reasoning, Plaintiff’s claims presented here also present a “new” Bivens

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context because, like the Hernandez case, they involve a cross-border use of excessive

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force by federal officers. Although both cases implicate the Fourth Amendment, the

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specific constitutional right at issue is excessive use of force, not an unreasonable search

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and seizure. See id. at 743 (“A claim may arise in a new context even if it is based on the

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same constitutional provision as a claim in a case in which a damages remedy was

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previously recognized.”). The nature of the misconduct involves an excessive use of force

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when agents arrested Plaintiff in Mexico pursuant to a search warrant as opposed to a

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warrantless search into an apartment in the United States. Bivens, 403 U.S. at 388–89.

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Accordingly, the Court finds that the case presents a new Bivens context.

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2. Special Factors

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Given that Plaintiff’s claims involve a “new” Bivens context, the Court must inquire

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as to whether there are any “special factors” counseling against extending a Bivens claim.

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In Egbert v. Boule, the Supreme Court provided specific instructions to limit further

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expansion of Bivens claims: courts are mandated to examine if there is “any reason to think

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that Congress might be better equipped to create a damages remedy” than the judiciary.

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142 S. Ct. at 1803. If the answer is yes, then courts cannot recognize a Bivens cause of
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action. See id. at 1805 (holding that if there is “any rational reason (even one) to think that

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Congress is better suited to weigh the costs and benefits of allowing a damages claim,” the

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court cannot recognize a Bivens claim) (emphasis in original) (internal quotations omitted);

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see also Mejia v. Miller, 61 F.4th 663, 667 (9th Cir. 2023) (“The question is no longer

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whether the Judiciary is well suited, but whether Congress is better suited.”). Under

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Egbert, “rarely if ever is the Judiciary equally suited as Congress to extend Bivens even

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modestly.” Id. at 669; see Harper v. Nedd, 71 F.4th 1181, 1187 (9th Cir. 2023) (“[After

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Egbert], future extensions of Bivens are dead on arrival.”). Some of the special factors that

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weigh against judicial expansion of Bivens claims include the availability of alternate forms

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of relief, foreign relations, and national security concerns. Hernandez, 140 S. Ct. at 744–

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46; Egbert, 142 S. Ct. at 1806.

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Here, the fact that Plaintiff had alternate forms of relief available to him outside a

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Bivens claim counsels against extending a Bivens cause of action. Egbert, 142 S. Ct. at

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1804. In Egbert, an inn owner assaulted by a border patrol agent brought suit under Bivens

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in addition to filing an internal grievance complaint with the border patrol agent’s

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supervisor and an administrative claim under the FTCA. Id. at 1802. The Supreme Court

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held that the availability of alternative remedies through the complaint with the agent’s

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supervisor and the FTCA foreclosed a Bivens cause of action. Id. at 1806; see also Corr.

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Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (noting that the availability of

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administrative remedies counsels against affording a Bivens cause of action); Mejia, 61

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F.4th at 669 (dismissing Bivens action based on use of excessive force by a federal agent

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when alternative administrative remedies were available); Yassein v. Henderson, 2023 WL

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2669880, at *5 (S.D. Cal. Mar. 13, 2023) (dismissing Bivens action based on use of

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excessive force by federal agents when the FTCA provided an alternate administrative

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remedy). Like in Egbert, Plaintiff could have filed an internal grievance complaint with

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the U.S. Marshals Service and an FTCA claim. See Challenger v. Bassolino, 2023 WL

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4287204, at *9–10 (D.N.J. June 30, 2023) (dismissing Bivens claim because plaintiff could

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have filed internal grievance complaint with the U.S. Marshals Service and FTCA remedies
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were available); Clutts v. Lester, 2023 WL 3901489, at *6 (N.D. Iowa June 8, 2023)

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(dismissing Bivens claim because plaintiff could file internal grievance complaint with the

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U.S. Marshals Service). Accordingly, because Plaintiff’s claims present a new Bivens

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context and special factors counsel against the extension of a Bivens cause of action, the

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Court cannot infer a constitutional cause of action and remedy for his claims. The Court

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therefore dismisses Plaintiff’s Bivens claim with prejudice as further amendment would be

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futile to address the fact that a Biven claim cannot lie in this scenario.

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D. §§ 1985(3) and 1986 Claims

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The Court next considers whether Plaintiff sufficiently states violations of 42 U.S.C.

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§§ 1985(3) and 1986 against U.S. Marshal Guerrero. 42 U.S.C. § 1985(3) prohibits

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conspiracies to deprive persons of their civil rights. To bring a cause of action under §

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1985(3), a plaintiff must allege and prove the following four elements: (1) a conspiracy;

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(2) for the purpose of depriving, either directly or indirectly, any person or class of persons

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of the equal protection of the laws, or of equal privileges and immunities under the laws;

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and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his

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person or property or deprived of any right or privilege of a citizen of the United States.

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United Bhd. of Carpenters & Joiners of Am., Loc. 610, AFL-CIO v. Scott, 463 U.S. 825,

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828–29 (1983). For the second prong, a plaintiff must allege a deprivation of a legally

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protected right motivated by “some racial, or perhaps otherwise class-based, invidiously

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discriminatory animus.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). Thus, plaintiff

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must allege the existence of a conspiracy motivated by racial bias to state a § 1985(3) claim.

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See Gibson v. United States, 781 F.2d 1334, 1341 (9th Cir. 1986) (“The Supreme Court . .

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. explicitly restricted the statutory coverage [of § 1985(3)] to conspiracies motivated by

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racial bias.”). 42 U.S.C. § 1986 similarly imposes liability on persons who knew of an

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impending § 1985 violation but neglected or refused to prevent the violation. Karim-

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Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988). A plaintiff can

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maintain a § 1986 action only if the complaint states a valid § 1985 claim. Trerice v.

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Pedersen, 769 F.2d 1398, 1403 (9th Cir. 1985).
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Here, Plaintiff fails to state either a §§ 1985(3) or a 1986 claim because he does not

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allege that Guerrero conspired to deprive him of his constitutional rights because of his

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race. See Nemcik v. Stevens, 2017 WL 2834120, at *6 (N.D. Cal. June 30, 2017)

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(dismissing § 1985(3) claim where plaintiff did not allege the existence of racial animus);

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Hoxey v. Cnty. of Los Angeles, 2009 WL 10655206, at *2 (C.D. Cal. June 22, 2009) (same).

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Because Plaintiff fails to state a § 1985(3) claim, he also fails to state a § 1986 claim. See

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Trerice, 769 F.2d at 1403 (finding no cause of action under § 1986 without a valid § 1985

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claim). Accordingly, the Court dismisses Plaintiff’s §§ 1985(3) and 1986 claims.

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Because amendment of these claims would not be futile, the Court grants Plaintiff

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leave to amend. Courts liberally grant leave to amend, especially in cases prosecuted by

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pro se litigants, when amendment would not be futile. See Lopez v. Smith, 203 F.3d 1122,

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1131 (9th Cir. 2000) (noting that the “rule favoring liberality in amendments to pleadings

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is particularly important for the pro se litigant”). Plaintiff may amend only his §§ 1985(3)

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and 1986 claims. As Plaintiff is proceeding IFP, the Court will screen his third amended

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complaint before it orders service through the U.S. marshals.

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IV. CONCLUSION AND ORDER

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For the reasons set forth above, the Court grants the United States’ motion to dismiss,

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Dkt. 209, and dismisses with prejudice Plaintiff’s negligence, assault, battery, false

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imprisonment, and intentional infliction of emotional distress claims against the United

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States. After screening Plaintiff’s complaint pursuant to 28 U.S.C. § 1915, the Court also

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dismisses with prejudice Plaintiff’s Bivens claim against Defendant Guerrero and § 1983

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claim against Defendant Beal. Plaintiff’s §§ 1985(3) and 1986 claims are dismissed with

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leave to amend.

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Plaintiff may file a third amended complaint within thirty days of the date of this

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order amending only his §§ 1985(3) and 1986 claims against Defendant Guerrero. Failure

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to timely file a third amended complaint will result in dismissal of the action for failure to

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prosecute.

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3:14-cv-02404-JO-KSC

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IT IS SO ORDERED.
Dated: September 14, 2023

______________________
Hon. Jinsook Ohta
United States District Judge

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3:14-cv-02404-JO-KSC