Ford v. Artiga, Civ. No. S-12-2370 KJM GGH
| Decision Date | 13 December 2013 |
| Docket Number | Civ. No. S-12-2370 KJM GGH |
| Court | U.S. District Court — Eastern District of California |
| Parties | FRANK GREGORY FORD, Plaintiff, v. VICTOR ARTIGA, et al., Defendants. |
This case was on calendar on November 15, 2013, for a hearing on a motion to dismiss filed by defendant California Military Department ("CMD")1 and a separate motion to dismiss filed by Victor Artiga, Merle Madera, Timothy Ryan, Thomas Pappas and the United States ("the federal defendants"). James Goodwin appeared for plaintiff; Chi Soo Kim appeared for the federal defendants; James Phillips appeared for CMD. After considering the parties' arguments, good cause appearing, the court GRANTS both motions to dismiss.
On September 14, 2012, plaintiff filed a complaint alleging generally that in 2003, while he was on active duty in Iraq as a member of a Military Intelligence Brigade of the California Army National Guard, he became aware of numerous improprieties on the part of military personnel and filed a complaint, seeking protection as a whistleblower. ECF No. 1 ¶¶ 6, 19-24. Thereafter he was kidnapped, drugged and flown to Germany. Id. ¶ 27. He also alleged that defendant Madera, a medical doctor, improperly diagnosed plaintiff as suffering from a mental disorder. Id. ¶ 32. The complaint comprises five causes of action: (1) a violation of 42 U.S.C. § 1983; (2) medical malpractice; (3) false imprisonment; (4) war crimes, 18 U.S.C. § 2441; (5) torture through unlawful use of drugs; and (6) violation of the Whistleblowers' Protection Act, 5 U.S.C. § 2302 (b)(8). Id. ¶¶ 18-49.
On December 5, 2012, the clerk entered default against defendant Madera. ECF No. 8. On December 11, 2012, Madera filed a motion to set aside the default. On December 14, 2012, CMD filed a motion to dismiss.
On February 11, 2013, the federal defendants filed a motion to dismiss. ECF No. 29. On February 13, 2013, the court substituted the United States as defendant with respect to the tort claims only. ECF No. 32.
On March 5, 2013, the court granted Madera's motion to set aside the default, and granted CMD's motion to dismiss with prejudice. ECF No. 34.
On July 30, 2013, the court granted the federal defendants' motion to dismiss, but granted plaintiff leave to file an amended complaint as to the constitutional claims only. ECF No. 40 (First Am. Compl. or "FAC").
Plaintiff filed his First Amended Complaint on August 15, 2013. ECF No. 42. This complaint is the subject of the pending motions to dismiss.
In 2003, plaintiff was a counter-intelligence officer with the California Army National Guard in active duty in Iraq. FAC, ECF No. 42 ¶¶ 6, 19. In April of that year, heobserved weapons of mass destruction in an underground bunker, with markings indicating they were manufactured in the United States. Id. ¶ 19. He notified the defendants, who were members of his higher command. Id.
In May 2003, plaintiff recruited a confidential informant ("CI"), who provided plaintiff with information leading to the capture of $40,000,000 in currency, which he turned over to his higher command. Id. ¶ 20. When he asked for money to pay the CI, he was told he would have to use his own money. Id. Personnel of the United States believed the CI knew Saddam Hussein's whereabouts and severely beat the CI, ultimately killing him. Id. ¶ 20.
Also in May 2003, plaintiff, who is a trained Navy corpsman and Army medic, was asked to care for prisoners who had been tortured at Abu-Ghraib prison. Id. ¶ 22. He told defendants Artiga and Ryan that torture was wrong and illegal. Id.
On June 15, 2003, Artiga relieved plaintiff of his position, took away his rifle, and referred him for a psychiatric assessment. Id. ¶ 23. On June 17, plaintiff filed formal charges of torture and sought whistleblower protection. Id. ¶ 14. On June 18, defendant Madera, a doctor, evaluated plaintiff for psychosis and was coerced by Artiga to arrange medical evacuation for plaintiff. Id. On June 21, plaintiff was kidnapped, drugged, strapped to a stretcher and flown out of Iraq to Germany. Id.
In July 2003, an officer of the California Army National Guard ordered plaintiff not to institute legal action against the National Guard or any of its officers until military personnel were out of Iraq because his suit would damage the war effort and jeopardize military personnel. Id. ¶ 15.
As the federal defendants observe, the factual allegations of the First Amended Complaint are largely unchanged from the original complaint. Federal Defs.' Mot. to Dismiss, ECF No. 46 at 8. In addition, plaintiff has realleged the tort causes of action despite the court's clear order giving plaintiff leave to amend only the constitutional claims. Moreover, plaintiff has again named the CMD as a defendant despite this court's earlier order dismissing all claims against it with prejudice. ECF No. 34.
The First Amended Complaint is comprised of the following causes of action: (1) violation of 42 U.S.C. § 1983, alleging violations of plaintiff's First and Fourth Amendment rights; (2) medical malpractice; (3) false imprisonment; (4) war crimes, 18 U.S.C. § 2441; (5) unlawful use of drugs constituting torture; (6) violation of the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8); (7) violation of 42 U.S.C. §§ 1982-1988, stemming from a violation of the Torture Victims Protection Act; (8) a violation of the Geneva Convention; and (9) declaratory relief. ECF No. 42 ¶¶ 18-60.
Plaintiff seeks general, special and punitive damages, as well as an admission from the United States that he was mistreated when he was falsely diagnosed as psychotic, and a promotion to the rank of Warrant Officer. Id. ¶¶ 59-60 & Prayer for Relief.
The CMD and the federal defendants argue the case must be dismissed because the court lacks subject matter jurisdiction over the claims.
Federal courts are courts of limited jurisdiction and, until proven otherwise, cases lie outside the jurisdiction of the court. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377-78 (1994). Lack of subject matter jurisdiction may be challenged by either party or raised sua sponte by the court. FED. R. CIV. P. 12(b)(1); FED. R. CIV. P. 12(h)(3); see also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-84 (1983). A Rule 12(b)(1) jurisdictional attack may be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial attack, the complaint is challenged as failing to establish federal jurisdiction, even assuming all the allegations are true and construing the complaint in the light most favorable to plaintiff. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
By contrast, in a factual attack, the challenger provides evidence that an alleged fact is false resulting in a lack of subject matter jurisdiction. Id. In these circumstances, the allegations are not presumed to be true and "the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560(9th Cir. 1988). "Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003).
Jurisdictional dismissal is "exceptional" and warranted only "'where the alleged claim under the constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining federal jurisdiction or where such claim is wholly insubstantial and frivolous.'" Safe Air for Everyone, 373 F.3d at 1039 (quoting Bell v. Hood, 327 U.S. 678, 682-83 (1948)). Accordingly, the Ninth Circuit has held that "[j]urisdictional finding of genuinely disputed facts is inappropriate when 'the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits of an action.'" Sun Valley Gasoline, Inc. v. Ernst Enters., Inc., 711 F.2d 138, 139 (9th Cir. 1983) (quoting Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)). "Normally, the question of jurisdiction and the merits of an action will be considered intertwined where . . . a statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiff's substantive claim for relief." Id. (quotation omitted).
In the order filed March 5, 2013, the court granted CMD's motion to dismiss, finding it had no power to hear suits infringing on a state's sovereign immunity, absent a waiver of immunity. ECF No. 34 at 3-5; Virginia Office for Prot. & Advocacy v. Stewart, __ U.S. __, 131 S. Ct. 1632, 1638 (2011) (); see also Savage, 343 F.3d at 1039-40 (). Despite this, plaintiff has included his claims against CMD in the First Amended Complaint.
Although California has waived its immunity from tort actions brought in state court, it has not consented to suit in federal court. BV Eng'g v. Univ. of Cal., 858 F.2d 1394, 1396 (9th Cir. 1988); Riggle v. State of Cal., 577 F.2d 579, 585 (9th Cir. 1978). Moreover,Congress did not abrogate states' immunity by enacting 42 U.S.C. § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989). It is true that the Eleventh Amendment does not preclude actions for prospective...
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