Dundon v. United States

• Docket Number: 3:22-cv-594-SI
• Decision Date: 02 December 2024
• Parties: RIAN DUNDON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — District of Oregon

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RIAN DUNDON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

No. 3:22-cv-594-SI

United States District Court, D. Oregon

December 2, 2024

Nicholas A. Kahl, NICK KAHL, LLC, and Nadia H. DahabSUGERMAN DAHAB, Of Attorneys for Plaintiff.

Brian M. Boynton, PrincipalDeputy Assistant Attorney GeneralJames G. Touhey, Director, Torts Branch; and Theodore W Atkinson, Trial Attorney, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, TORTS BRANCH, Of Attorneys for Defendant.

OPINION AND ORDER

MICHAEL H. SIMON, UNITED STATES DISTRICT JUDGE

PlaintiffRian Dundon is a journalist who from June 2020 to November 2020 was on assignment as a reporter for the Economic Hardship Reporting Project, working on stories for The Atlantic, The New Yorker, Al Jazeera, The Nation, and the WashingtonPost.In that role, he covered protests in Portland, Oregon.Plaintiff originally brought suit against federal law enforcement supervisory officials Gabriel Russell, Allen Jones, Russel Burger, and Andrew Smith, 70 “John Doe” law enforcement supervisory officers, and 30 “John Doe” law enforcement non-supervisory officers, alleging claims under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388(1971), for violations of his First, Fourth, and Fifth Amendment rights.The Court granted Defendants' motions to dismiss, and Plaintiff filed a First Amended Complaint (“FAC”).He now brings this case only against the United States of America.Plaintiff alleges claims under the Federal Tort Claims Act (“FTCA”) for false arrest, battery, intentional infliction of severe emotional distress (“IIED”), negligence, and negligent infliction of emotional distress (“NIED”).Defendant moves to dismiss for lack of subject matter jurisdiction and failure to state a claim.For the reasons explained below, the Court grants in part and denies in part Defendant's motion.

STANDARDS

A.Motion to Dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure

“Federal courts are courts of limited jurisdiction ....”Gunn v. Minton, 568 U.S. 251, 256(2013)(quotation marks omitted).As such, a court is to presume “that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.”Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377(1994)(citations omitted);see alsoRobinson v. United States, 586 F.3d 683, 685(9th Cir.2009);Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039(9th Cir.2004).A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of “subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived.”United States v. Cotton, 535 U.S. 625, 630(2002).An objection that a particular court lacks subject matter jurisdiction may be raised by any party, or by the court on its own initiative, at any time.Arbaugh v. Y&H Corp., 546 U.S. 500, 506(2006);Fed.R.Civ.P. 12(b)(1).The Court must dismiss any case over which it lacks subject matter jurisdiction.Fed.R.Civ.P. 12(h)(3);see alsoPistor v. Garcia, 791 F.3d 1104, 1111(9th Cir.2015)(noting that when a court lacks subjectmatter jurisdiction, meaning it lacks the statutory or constitutional power to adjudicate a case, the court must dismiss the complaint, even sua sponte if necessary).

A Rule 12(b)(1)motion to dismiss for lack of subject matter jurisdiction may be either “facial or factual.”SeeSafe Air for Everyone, 373 F.3d at 1039.A facial attack on subject matter jurisdiction is based on the assertion that the allegations contained in the complaint are insufficient to invoke federal jurisdiction.Id.“A jurisdictional challenge is factual where ‘the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.'”Pride v. Correa, 719 F.3d 1130, 1133 n.6(9th Cir.2013)(quotingSafe Air for Everyone, 373 F.3d at 1039).

Defendant brings a facial challenge to the Court's subject matter jurisdiction.For facial attacks, the Court resolves the Rule 12(b)(1) motion“as it would a motion to dismiss under Rule 12(b)(6).”Leite v. Crane Co., 749 F.3d 1117, 1121(9th Cir.2014).Thus, in “determin[ing] whether the [plaintiff's] allegations are sufficient as a legal matter to invoke the court's jurisdiction,”the Court“[a]ccept[s]the plaintiff's allegations as true and draw[s] all reasonable inferences in the plaintiff's favor.”Id.

B.Motion to Dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure

A motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief.Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041(9th Cir.2010).In evaluating the sufficiency of a complaint's factual allegations, the Court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party.Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140(9^th Cir.2012);Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998(9th Cir.2010).To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.”Starr v. Baca, 652 F.3d 1202, 1216(9th Cir.2011).The Court must draw all reasonable inferences from the factual allegations in favor of the plaintiff.Newcal Indus., Inc. v. Ikon Off. Sol., 513 F.3d 1038, 1043 n.2(9th Cir.2008).The Court need not, however, credit a plaintiff's legal conclusions that are couched as factual allegations.Ashcroft v. Iqbal, 556 U.S. 662, 678-79(2009).

A complaint must contain sufficient factual allegations to “plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.”Starr, 652 F.3d at 1216.“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”Iqbal, 556 U.S. at 678(citingBell Atl. Corp. v. Twombly, 550 U.S. 544, 556(2007)).“The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.”Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988(9th Cir.2017)(quotation marks omitted).

BACKGROUND

Between June and November 2020, Plaintiff was on assignment as a journalist covering the Black Lives Matter protests in Portland.Federal law enforcement agents were deployed in response to these protests.

Throughout his assignment, Plaintiff identified himself as a member of the press and positioned himself with other journalists, generally separated from protestors.Nevertheless, Plaintiff alleges that federal officers physically assaulted him throughout his assignment, and he identifies four specific instances of these assaults: (1) on July 11, 2020, when officers used tear gas to clear Plaintiff and other journalists from the area, FAC ¶ 29;(2) on July 17, 2020, when a DHS agent fired several rounds of pepper balls that hit the fence and sidewalk near Plaintiff's feet, id.¶¶ 15-16;(3) on July 22, 2020, when federal officers grabbed Plaintiff and threw him to the ground, where he landed on a gas canister that exploded underneath him, id.¶ 19; and (4) also on July 22, 2020, when officers again threw and pinned Plaintiff to the ground after he attempted to flee, id.

DISCUSSION

A. FTCA Discretionary Function Exception

Defendant argues that Plaintiff's negligence and NIED claims are barred by the discretionary function exception to the FTCA.Plaintiff responds that the discretionary function exception does not apply when the government has violated a legal mandate,^[1] including a constitutional mandate, and that Plaintiff alleges governmental conduct that violated Plaintiff's First AmendmentandFourth Amendment rights.

The FTCA provides a limited waiver of the federal government's sovereign immunity from damages liability for torts committed by federal employees acting within the scope of their employment.See28 U.S.C. §§ 1346(b),2674.The FTCA expressly retains immunity from some tort liability through a number of statutory exceptions.Id.§ 2680.If one of those exceptions applies, a court lacks subject-matter jurisdiction to hear a claim.SeeSimmons v. Himmelreich, 578 U.S. 621, 626(2016)(“[D]istrict courts do not have jurisdiction over claims that fall into one of the 13 categories of ‘Exceptions' ....”).

The discretionary function exception provides that the FTCA's waiver of sovereign immunity does not apply to “[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”28 U.S.C. § 2680(a).“[T]he purpose of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.”United States v. Gaubert, 499 U.S. 315, 323(1991)(cleaned up).

Constitutional torts are not cognizable under the FTCA.SeeFDIC v Meyer, 510 U.S. 471, 477-78(1994).Nevertheless, as explained by the D.C. Circuit, that does not preclude a plaintiff from arguing that the...