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)

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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)

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