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)

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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

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