Michel v. United States Customs and Border Protection, et al.

Filing 101

ORDER Denying Plaintiff's 93 Motion for Reconsideration. The hearing set for February 15, 2018 shall be vacated. Signed by Judge Gonzalo P. Curiel on 2/13/18. (dlg)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

DOYMA VANESSA MICHEL, an
individual,

15
16
17
18
19
20
21
22
23
24
25
26
27
28

ORDER DENYING PLAINTIFF’S
MOTION FOR
RECONSIDERATION

Plaintiff,

13
14

Case No.: 16CV277-GPC(AGS)

v.
UNITED STATES OF AMERICA;
SAFARILAND, LLC, a Delaware limited
liability company, AND DOES 1
THROUGH 100, inclusive,
Defendants.

Before the Court is Plaintiff Doyma Vanessa Michel’s (“Plaintiff” or “Michel”)
motion for reconsideration of the Court’s order granting Defendant United States of
America’s (“Defendant” or “government”) motion for summary judgment and denying
Plaintiff’s motion for partial summary judgment. (Dkt. No. 93.) Defendant United States
of America filed an opposition. (Dkt. No. 99.) Plaintiff filed a reply. (Dkt. No. 100.)
Based on the reasoning below, the Court DENIES Plaintiff’s motion for reconsideration.
Background
On October 31, 2017, the Court granted the United States of America’s motion for
summary judgment on all four causes of action, including negligence, false
1
16CV277-GPC(AGS)

1

imprisonment, negligent infliction of emotional distress and intentional infliction of

2

emotional distress arising under the Federal Tort Claims Act (“FTCA”). (Dkt. No. 86.)

3

The parties are intimately familiar with the facts in this case, and the Court incorporates

4

by reference the detailed facts presented in the Court’s order on the parties’ cross-

5

motions for summary judgment. (Id. at 3-11)

6

A.

7
8
9

Legal Standard on Motion for Reconsideration
Plaintiff moves for reconsideration pursuant to Federal Rule of Civil Procedure

(“Rule”) 59(e) and Local Civil. R. 7.1(i). (Dkt. No. 93; Dkt. No. 93-1 at 6.)
A district court may reconsider a grant of summary judgment under Rule

10

59(e). Sch. Dist. No. 1J, 1 Multnomah County, Or. v. ACandS, Inc., 5 F.3d

11

1255, 1262 (9th Cir. 1993). The Court has discretion in granting or denying a motion

12

for reconsideration. Fuller v. M.G. Jewelry, 950 F.2d 1437, 1441 (9th Cir. 1991). A

13

motion for reconsideration should not be granted absent highly unusual circumstances.

14

389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999).

15

A motion for reconsideration, under Rule 59(e), is “appropriate if the district

16

court (1) is presented with newly discovered evidence; (2) clear error or the initial

17

decision was manifestly unjust, or (3) if there is an intervening change in controlling

18

law.” Sch. Dist. No. 1J, Multnomah County, Or., 5 F.3d at 1263; see also Ybarra v.

19

McDaniel, 656 F.3d 984, 998 (9th Cir. 2011). “[R]econsideration of a judgment after

20

its entry is an extraordinary remedy which should be used sparingly.” McDowell v.

21

Calderon, 197 F.3d 1253, 1255 n. 1 (9th Cir. 1999) (quoting 11 Charles Alan Wright,

22

Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2810.1 (2d ed.

23

1995)). Rule 59(e) “may not be used to relitigate old matters, or to raise arguments or

24

present evidence that could have been raised prior to the entry of judgment.” Exxon

25

Shipping Co. v. Baker, 554 U.S. 471, 485 n. 5 (2008) (citation omitted); see also

26

Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (“A Rule 59(e) motion may not

27

be used to raise arguments or present evidence for the first time when they could

28

reasonably have been raised earlier in the litigation.”) (citing Kona Enters. v. Estate of
2
16CV277-GPC(AGS)

1

Bishop, 229 F.3d 877, 890 (9th Cir. 2000)).

2

Local Civil Rule 7.1(i) states that in seeking reconsideration of an order, an

3

attorney must set forth an “affidavit of a party or witness or certified statement of an

4

attorney setting forth the material facts and circumstances surrounding each prior

5

application, including inter alia: (1) when and to what judge the application was made,

6

(2) what ruling or decision or order was made thereon, and (3) what new or different facts

7

and circumstances are claimed to exist which did not exist, or were not shown, upon such

8

prior application.” Local Civ. R. 7.1(i).

9

Discussion
Plaintiff seeks the Court’s reconsideration of its ruling in favor of the government

10
11

on all four causes of action.

12

A.

13

False Imprisonment
In its order, the Court applied state law enforcement privilege to the false

14

imprisonment cause of action, and concluded that the government was not liable for false

15

imprisonment after criminal proceedings began on June 3, 2014 as it concerned Agent

16

Bulman’s actions. (Dkt. No. 86 at 23.) The Court also held that assuming that the

17

private actor standard applied to the actions of Agent Bulman, there was still no evidence

18

that his conduct or failure to act subjected the government to liability for false

19

imprisonment. (Id.)

20

Plaintiff argues that the U.S. Supreme Court has held that state law governmental

21

immunity does not apply to the United States in a Federal Tort Claims Act (“FTCA”)

22

action. Therefore, she contends that since state law immunity and federal statutory

23

privilege do not apply, the government is liable for her false imprisonment for her

24

continued detention after September 10, 2014, when Ambriz’ GC/MS testing revealed the

25

substance Michel was transporting was not a controlled substance.

26

Defendant counters that Plaintiff merely reiterates her arguments raised in the

27

summary judgment motions and has not alleged new facts, has not demonstrated an

28

intervening change of the law, and has not demonstrated clear error committed by the
3
16CV277-GPC(AGS)

1

Court. Therefore, she cannot demonstrate she is entitled to reconsideration of the Court’s

2

order.
The FTCA provides that the government “is liable in the same manner and to the

3
4

same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. In the

5

parties’ motions for summary judgment, the parties disagreed as to whether the state law

6

enforcement privilege/immunity applied to a claim of false imprisonment by a federal

7

law enforcement officer under the FTCA. Defendant argued that because law

8

enforcement officers engage in a unique governmental function that has no private sector

9

analogue, the law governing state law enforcement officers performing similar actions

10

applies. In response, Plaintiff contended that the Government is liable under a “private

11

person standard” or in this case, the standard for citizen’s arrest as directed by the United

12

States Supreme Court in United States v. Olson, 546 U.S. 43 (2005) and the Ninth Circuit

13

case of Tekle v. United States, 511 F.3d 839 (9th Cir. 2007).

14

In her motion for reconsideration, Plaintiff repeats the same arguments raised on

15

summary judgment, albeit with more detail and vigor, but essentially she disagrees with

16

the Court’s analysis. Moreover, the Court notes that it already addressed the private

17

person standard she seeks the Court to apply in her motion for reconsideration. (Dkt. No.

18

86 at 23.)

19

Plaintiff presumes that if the private person standard applies, the United States is

20

liable for Plaintiff’s continued detention from September 10, 2014, when Ambriz

21

completed the GC/MS test which showed no presence of a controlled substance, until her

22

release on December 9, 2014.1

23
24
25
26
27
28

1

Plaintiff incorrectly asserts that there is no immunity or limitation of liability for private persons
accused of false imprisonment. In California, a private individual has lawful privilege to effectuate a
citizen’s arrest if there is probable cause to detain. Fermino v. Fedco., Inc., 7 Cal. 4th 701, 715 (1994)
(“Merchants who detain individuals whom they have probable cause to believe are about to injure their
property are privileged against a false imprisonment action.”). The Court concluded that there was
probable cause to arrest Michel by Officer Gibbons and the interrogation by Agent Bulman under the
collective knowledge doctrine. Under the private person standard, Michel’s arrest was lawful. The
4
16CV277-GPC(AGS)

1

Even if the Court erred in applying the state law enforcement immunity, Plaintiff

2

has not demonstrated that applying a private person standard results in the government’s

3

liability for false imprisonment. In support, Plaintiff cites to one case, Fermino v. Fedco.,

4

Inc., 7 Cal. 4th 701, 715 (1994), where the California Supreme Court addressed an

5

employee’s claim that she was subject to false imprisonment by her employer. In

6

Fermino, the employee was summoned to a windowless room and interrogated about an

7

alleged theft. Id. at 706. Two managers and two security agents were in the room; they

8

accused her of stealing, demanded that she confess and threatened to have her arrested

9

unless she confessed and told her that witnesses to the incident were waiting in the next

10

room when they were not. Id. at 707. Despite the employee’s repeated requests to leave

11

the room and to call her mother, they were denied. Id. She remained in the room for

12

more than one hour. Id. The court recognized a merchant’s privilege against a false

13

imprisonment claim if the merchant has probable cause to believe an individual will

14

injure property under California Penal Code section 490.5. Id. at 715. However, an

15

employer’s actions that go beyond a reasonable interrogation and detention constitute

16

false imprisonment. Id. at 716. The court reversed the trial court’s demurrer in favor of

17

the employer. Id. at 724. The Court finds that Fermino is not applicable because it does

18

not address a prolonged detention such as Michel’s where there was probable cause to

19

initially detain her and then she was transferred to the custody of jailers pursuant to

20

criminal court proceedings.

21

California recognizes a false imprisonment claim based on a prolonged detention if

22

a jailer knows or should have known of the “illegality of the imprisonment.” Sullivan v.

23

Cnty. of Los Angeles, 12 Cal. 3d 710, 717-18 (1974). A public entity which employs the

24

jailer may be liable if jailers “have actual knowledge that the imprisonment of the

25
26
27
28

question is whether there was a continuing duty on Agent Bulman to investigate the validity of
Plaintiff’s detention.
5
16CV277-GPC(AGS)

1

plaintiff is unlawful or alternatively that he have some notice sufficient to put him, as a

2

reasonable man, under a duty to investigate the validity of the incarceration.” Id. at 719.

3

In Martinez, a plaintiff filed a complaint against the City of Los Angeles for false

4

imprisonment based on a prolonged detention of 59 days spent in jail in Mexico.

5

Martinez v. City of Los Angeles, 141 F.3d 1373, 1377 (9th Cir. 1998). The Ninth Circuit

6

reversed the district court’s summary judgment decision in favor of the City on the false

7

imprisonment claim based on prolonged detention. Id. at 1381. The Los Angeles Police

8

Department (“LAPD”) initiated an investigation that led to the plaintiff's arrest in

9

Mexico. Id. at 1377. After Martinez was arrested, his attorney presented the LAPD with

10

evidence establishing the Mexican authorities arrested the wrong man. Id. at 1378. After

11

receiving this information, the LAPD delayed investigating further. Id. at 1381.

12

Martinez claimed that the LAPD officers allowed him to remain in jail in Mexico after

13

they knew or should have known he was not the person who committed the crime. Id. at

14

1379. The Ninth Circuit concluded there were genuine issues of material fact whether

15

the LAPD knew facts which would have caused a reasonable person to investigate the

16

legality of Martinez’s incarceration and seek his release. Id. at 1381. In a prolonged

17

detention case, the question of liability depends on whether the defendant knew facts that

18

the detained person is innocent or should have known facts that would have caused a

19

reasonable person to investigate the validity of the detained person’s detention.

20

In this case, Plaintiff has not demonstrated that Agent Bulman had facts that would

21

have put him on notice to trigger a duty to investigate the drug test results. Plaintiff

22

argues that when Agent Bulman interviewed Plaintiff on the day she was detained, on

23

June 2, 2014, she told him the substance was not methamphetamine but was cuajo and

24

both agreed that testing would reveal whether the substance was a drug or not. Based on

25

this conversation, Plaintiff argues that Agent Bulman was aware that the lab test could

26

exonerate Plaintiff and he had a continuing duty to investigate especially after September

27

10, 2014 when the results of the drug testing revealed she was innocent. First, a dispute

28

whether a substance is illicit or not is most likely common at a border stop. Second,
6
16CV277-GPC(AGS)

1

Agent Bulman did not have actual knowledge about the results of the drug testing until

2

December 3, 2014. He had no knowledge that Ambriz conducted GC/MS testing on

3

September 10, 2014 and did not know the results of that test. There was nothing to put

4

him on notice that triggered a duty to investigate the test results.
Next, Michel argues that Agent Bulman’s failure to follow-up with the DEA lab at

5
6

the request of two Assistant U.S. Attorneys was deliberate, willful and/or reckless.

7

However, the Court concluded that Agent Bulman’s failure to follow up with the

8

AUSA’s requests to check the lab results was allowable under the discretionary function

9

exception doctrine. There is no indication that his failure to act was deliberate, willful

10

and/or reckless. Plaintiff has not demonstrated that Agent Bulman had any actual

11

knowledge that Plaintiff’s prolonged detention was unlawful and there was nothing to put

12

him on notice to trigger a duty to investigate the validity of the detention.

13

Under either standard, the private actor standard or applying state law privilege,

14

Plaintiff has not demonstrated a genuine issue of fact that the government is liable for

15

false imprisonment due to Agent Bulman’s failure to act. Accordingly, the Court

16

DENIES Plaintiff’s motion for reconsideration on this issue.

17

B.

Discretionary Function Exception
In the Court’s order on summary judgment, it held that the claims of negligence

18
19

and negligent infliction of emotional distress claim based on Ambriz’ conduct from

20

September 29, 2014 when she definitively learned that the substance in the bottles was

21

not a controlled substance, and December 9, 2014, when Michel was released from jail

22

was protected by the discretionary function exception. (Dkt. No. 86 at 25, 27.) The

23

Court explained that the “DEA lab’s decision on which track, rushed or not rushed, to test

24

the substance found in Plaintiff’s vehicle was driven by policy considerations.” (Id. at

25

27.)

26

In the motion, Plaintiff argues that Ambriz did not engage in a “permissible

27

exercise of policy discretion” after September 10, 2014, when she completed GC/MS

28

testing. She claims that while the DEA has discretion to determine how it prioritizes the
7
16CV277-GPC(AGS)

1

testing of drug samples, it does not have a policy about timely submission of drug test

2

reports and notifying the case agent of the lab results. Defendant argues that Plaintiff

3

merely “recycles” her arguments against Ambriz and has identified no new fact, no

4

intervening change in law or clear error to justify a reconsideration of the Court’s

5

decision.

6

Here, the Court concluded, and Plaintiff does not dispute, that the decision not to

7

rush the lab results was driven by policy considerations. That decision, that the substance

8

be tested in the regular course of testing, and not rushed, includes the entire lab testing

9

process, and not just the initial decision to not rush the test results. In 2014, a non-rushed

10

lab report took about six to ninth months to test. (Dkt. No. 59-3, Ex. G, Malone Depo. at

11

55:7-20.) In the regular course of testing, Plaintiff’s substance would have taken six to

12

nine months. In this case, the testing was completed within five months, earlier than the

13

normal testing time. The Court does not find Plaintiff’s argument concerning the delay

14

of the submission of the drug test reports to be persuasive.

15

Next, Plaintiff’s argument that once Ambriz knew that the substance was not a

16

controlled substance on September 10, 2014, Ambriz did not engage in a “permissible

17

exercise of policy discretion” and the discretionary exception did not apply to Ambriz’

18

decision to hold off submitting her final report until almost two months after testing was

19

completed, is not legally supportive. In its order, the Court concluded that Ambriz did

20

not have a duty to act because she “had no actual knowledge concerning the facts in

21

Michel’s underlying criminal case and no duty to promptly act to secure the release of

22

Michel. Ambriz was not an investigating officer, as such, she was not involved in the

23

detention and arrest of Michel, involved in the filing of the criminal complaint, aware of

24

Michel’s bail status or aware of the evidence in the possession of the Government

25

supporting Michel’s charges.” (Dkt. No. 86 at 29 citing Dkt. No. 52-9, P’s Index of Exs.,

26

Ex. 5, Ambriz Depo. at 124:3-15 (Ambriz testified she did not know whether Plaintiff

27

was in custody or not).) Therefore, Ambriz did not know that the test results of

28

September 2014 would have dissipated probable cause to detain Plaintiff.
8
16CV277-GPC(AGS)

1

As to Agent Bulman, Plaintiff also argues that his subjective and erroneous belief

2

about a non-existent policy is not subject to the discretionary function exception. The

3

Court concluded that Agent Bulman’s failure to follow up with the DEA lab was based

4

on a policy decision that rush requests were only made when there was a court date, a

5

plea date or an extenuating circumstances, such as when the AUSA makes the rush

6

request directly with the DEA lab, or a judge orders testing rushed. (Dkt. No. 86 at 11,

7

30.)

8
9

Plaintiff argues that Agent Bulman’s subjective belief is a disputed fact.
She asserts that Agent Bulman’s belief that he could not make a rush request unless there

10

was a trial date or plea agreement date is disputed by the DEA’s rush request form and

11

Ambriz’ testimony. (Dkt. No. 93-1 at 26 n. 4.) The Court disagrees. The rush analysis

12

request form includes a question that lists reasons that require a checkmark for the

13

“nature of rush request” and include, grand jury, preliminary hearing, plea deadline, trial

14

call, undercover buys and “other.” (Dkt. No. 94-2, P’s Suppl. Exs, Ex. A at 2.) These

15

choices indicate that rush requests are made for specific reasons such as court dates.

16

“Other” does not indicate that a rush request can be made without a time-sensitive reason.

17

Moreover, the fact that Ambriz testified she receives rush request forms from agents and

18

that she would have accommodated Bulman’s request for a rush analysis does not support

19

Plaintiff’s argument that Ambriz routinely received rush request forms for cases without

20

a trial date or plea agreement date or any extenuating circumstances. Plaintiff’s facts

21

only demonstrate that when a rush request is made, the lab policy expedites the testing.

22

Here, according to Agent Bulman, there was no justification for a rush request since there

23

was no court date. Plaintiff’s facts do not show that Agent Bulman’s understanding of

24

the DEA lab policy is contradicted.

25

Further, in support, Plaintiff submits an email exchange between Agent Bulman

26

and the AUSA concerning the lab testing of Michel’s substance. (Dkt. No. 94-2, P’s

27

Suppl. Exs., Ex. B.) While the email exchange was referenced in Plaintiff’s opposition to

28

the government’s separate statement of undisputed facts, (Dkt. No. 62-1, SSUF, No. 18),
9
16CV277-GPC(AGS)

1

the document was not submitted in the record. For the first time, Plaintiff submits the

2

email exchange in her motion for reconsideration. On August 1, 2014, the AUSA wrote,

3

“When you get a chance, would you send me your ROI in this case? And would you

4

check on the status of the DEA lab report (although I know we’re likely months away

5

from that being ready).” (Dkt. No. 94-2, P’s Suppl. Exs., Ex. B at 2.) In response, Agent

6

Bulman wrote, “I’ve attached a scanned copy of the approved initial ROI. The DEA Lab

7

received the liquid methamphetamine from the port seizure and from the storage unit

8

seizure on July 3. I know that the lab is still severely backlogged by at least six months,

9

but the samples are there waiting to be analyzed. If and when it becomes apparent that we

10

will need to submit a rush analysis, I will do so, but due to their backlog, they have also

11

been inundated with rush analysis requests.” (Id.) The AUSA responded, “Thanks! No

12

need for a rush request yet, I know how busy the lab is.” (Id.) The email exchange notes

13

the extreme backlog at the DEA lab and that a rush analysis request be made only when

14

necessary. At that time, it was not necessary to make the rush request. The email

15

exchange supports Agent Bulman’s testimony on when rush requests are made.

16

Therefore, Agent Bulman’s decision not to follow up with DEA lab based on the

17

AUSA’s request is subject to the discretionary function exception. The Court DENIES

18

Plaintiff’s request for reconsideration on this issue.

19

C.

Intentional Infliction of Emotional Distress

20

Plaintiff merely reargues her claim that Ambriz’s conduct was based on her

21

reckless disregard of the probability of causing emotional distress to Plaintiff, that is, she

22

knew that the laboratory results would exonerate Plaintiff but failed to timely submit her

23

lab report. She also claims that Agent Bulman did not exercise policy judgment but had

24

an obligation to fulfill the AUSA’s requests and had no authority to refuse to obtain the

25

lab results. As discussed above, Agent Bulman was exercising his discretion in following

26

DEA’s prioritization policy concerning lab testing and Plaintiff did not demonstrate that

27

he acted with reckless disregard to cause her emotional distress. As to Ambriz, the Court

28

concluded that the claim was barred under 28 U.S.C. § 2680(h) since the claim for
10
16CV277-GPC(AGS)

1

intentional infliction of emotional distress is based on facts to support the false

2

imprisonment cause of action and her injuries originate from this claim which is

3

explicitly exempt under the FTCA. Plaintiff has not demonstrated clear error to justify

4

reconsideration. The Court DENIES Plaintiff’s motion for reconsideration on the

5

intentional infliction of emotional distress cause of action.

6
7
8
9
10

Conclusion
Based on the above, the Court DENIES Plaintiff’s motion for reconsideration. The
hearing set for February 15, 2018 shall be vacated.
IT IS SO ORDERED.
Dated: February 13, 2018

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11
16CV277-GPC(AGS)