Vasquez v. Ives et al

Filing 17

ORDER TO DISMISS: Defendant's Motion to Dismiss ( 8 ) is granted. Plaintiff's Complaint ( 2 ) is dismissed for lack of subject-matter jurisdiction. Signed on 10/3/2017 by Judge Michael W. Mosman. (joha)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MAURICIO VASQUEZ,
Case No. 3:16-cv-02335-MO
Plaintiff,
ORDER TO DISMISS

v.
UNITED STATES OF AMERICA,
Defendant.
MOSMAN, District Judge.
On February 18,

2015,

while plaintiff was incarcerated at

FCI-Victorville, California, Bureau of Prisons
moved

him

from

Housing Unit

general

("SHU").

At

plaintiff's

property

allowed

opportunity

April

an

14,

2015

at

population

but,
to

that

housing

time,

according
review

which time

he

to

the

BOP personnel
to

his
found

plaintiff,
personal
several

Declaration of Mauricio Vasquez (#14), p. 2.

1 - ORDER TO DISMISS

("BOP")

personnel
Segregated

inventoried
he

was

property

not

until

i terns missing.

Approximately

four

later,

months

on

12,

June

2015,

plaintiff was transferred from the FCI-Victorville SHU to FCISheridan.

On August

27,

claim seeking $211. 65

2015,

he

filed an administrative tort

in damages

for his missing property.

On

November 8, 2016, the BOP denied the claim and advised plaintiff
that the denial was final and that he could not avail himself of
judicial review of that decision. Declaration of Nellie T. Klein
(#9), p. 2.

On December 19,
court alleging that
his

prison

moves

2016,

the BOP lost his personal property during

transfer.

to

dismiss

plaintiff filed a Complaint in this

He

asks

this

for

$475

for

case

in

damages.

lack

of

Defendant

subject-matter

jurisdiction.
STANDARDS

When

a

R.

Fed.

defendant

jurisdiction,
that

P.

Civ.

the

the

court

moves

dismiss

12(b) (1)
plaintiff

does,

Guardian Life Ins.

to

Co.

for

an

lack

bears

the

indeed,

have

of Am.,

511 U.S.

action pursuant
subject

of

burden

of

jurisdiction.
375,

377,

to

matter

establishing
Kokkonen

(1994).

v.

The
,

court will
allege

grant defendant's Motion if the Complaint

facts

sufficient

to

establish

subject

jurisdiction. Savage v. Glendale Union High Sch.,
2 - ORDER TO DISMISS

fails

to

matter

343 F.3d 1036,

1039 n.2

(9th Cir.

Alternatively,
12 (b) ( 1)
facts

by

2003),

a

defendant

presenting

alleged

in

denied,

cert.

541 U.S.

seek

dismissal

may

evidence

the

to

(2004).

under

Rule

refute

the

jurisdictional

Once

the

defendant

Id.

complaint.

1009

has

introduced such evidence, the plaintiff "must furnish affidavits
or

other

evidence

necessary

establishing subject matter

to

satisfy

jurisdiction."

its

burden

of

34 3 F. 3d at

Savage,

1039 n. 3 (citation omitted).
DISCUSSION

The Federal Tort Claims Act
the

United

States'

sovereign

( "FTCA")

immunity.

acts as a waiver of
It

authorizes

against the United States, for money damages
loss of property
or

omission

within
§

of

the

. for injury or

. caused by the negligent or wrongful act
any

scope

1346(b) (1).

"claims

employee

of

However,

his

of

office

the

Government

or

while

employment."

28

acting
U.S.C.

the FTCA is limited in some respects. As

it pertains to this case,

the FTCA waiver of sovereign immunity

does not encompass "[a]ny claim arising in respect of the .
detention of any goods,

merchandise,

officer

excise

officer."

of

customs
28

U.S.C.

or
§

3 - ORDER TO DISMISS

or

2680 (c).

or other property by any
any

other

law

The

term

"any

enforcement
other

law

enforcement

officer"

includes

BOP

officers.

Ali

v.

Federal

Bureau of Prisons, 552 U.S. 214 (2008).

Plaintiff

contends

that

the

detention

of

goods

exception

does not apply in this case because the United States was not
negligent in respect to the detention of his goods.

Instead, he

asserts the United States was negligent in keeping its inventory
records

Specifically,

sheets.

personnel

lied when

they

plaintiff

indicated

on

alleges
relevant

the

that

BOP

paperwork

that he wished to donate some of his personal property. Despite
how

plaintiff

cognizable

in

allegation

is

inventory
against

wishes
this
that

records

to

characterize

court
BOP

because:

personnel

sheet

(1)

claim,

even

fraudulently

pertaining

the United States for

his

to

his

if

Grazing

1981);

and

(2)

Ass'n

at

improper disposal

v.

its
of his

not

out

property,

the

"claims

fraud or misrepresentation by a

Field,

core,

is

plaintiff's

filled

federal officer are absolutely barred by 28 U.S. C.
Owyhee

it

637

F.2d

plaintiff's

694,
claim

§

697
is

property by BOP personnel,

2680 (h) . "
(9th

Cir.

about

the

something

the detention of goods exception specifically excludes from the
FTCA's

waiver

of

sovereign

immunity.

Consequently,

lacks jurisdiction over the subject matter.

Ill
4 - ORDER TO DISMISS

the

court

CONCLUSION
Defendant's Motion to Dismiss
Complaint

(#2)

is

dismissed

( #8)

for

is granted.
lack

of

Plaintiff's

subject-matter

jurisdiction.
IT IS SO ORDERED.
DATED

this~

day of

~f!'"~se~,

2017.

fV4{da~~

United States District Judge

5 - ORDER TO DISMISS