Gaede v. U.S. Forest Serv., CASE NO. CV F 12-0468 LJO DLB

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtLawrence J. O'Neill
Decision Date09 January 2013
PartiesBILL GAEDE, Plaintiff, v. UNITED STATES FOREST SERVICE, et al., Defendants.
Docket NumberCASE NO. CV F 12-0468 LJO DLB

BILL GAEDE, Plaintiff,
v.
UNITED STATES FOREST SERVICE, et al., Defendants.

CASE NO. CV F 12-0468 LJO DLB

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: January 9, 2013


ORDER ON DEFENDANTS' F.R.Civ.P. 12
MOTION TO DISMISS
(Doc. 12.)

INTRODUCTION

Defendants U.S. Forest Service ("USFS") and USFS Park Ranger Richard Telles ("Park Ranger Telles") seek to dismiss plaintiff Bill Gaede's ("Mr. Gaede's") unlawful detention claims as barred by sovereign and qualified immunities. Mr. Gaede filed no papers to oppose dismissal of his claims. This Court considered the USFS and Park Ranger Telles' (collectively "defendants'") F.R.Civ.P. 12(b)(1) motion to dismiss on the record and VACATES the January 16, 2013 hearing, pursuant to Local Rule 230(g). For the reasons discussed below, this Court DISMISSES Mr. Gaede's claims.

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BACKGROUND 1

Mr. Gaede's Detention

On March 28, 2010, an African-American motorcyclist swerved to evade a pig and collided with a wooden bench in front of Mr. Gaede's property in rural Fresno County. Park Ranger Telles arrived on the scene, became immediately belligerent with Mr. Gaede and asked Mr. Gaede if he was armed in that Mr. Gaede wore a pistol holder. Mr. Gaede told and demonstrated to Park Ranger Telles that he was unarmed. The complaint alleges that Park Ranger Telles took aggressive action against Mr. Gaede because the side of Mr. Gaede's truck bears a swastika and the Gaede name, a "family brand that has existed for over 40 years and is a registered brand."

For 20-30 minutes, Park Ranger Telles detained Mr. Gaede and prevented Mr. Gaede to enter his home by threat of Park Ranger Telles' tazer. Prior to this incident, Mr. Gaede had suffered tazing during a home invasion and "felt compelled to comply out of complete fear of being tazed."

Mr. Gaede informed Park Ranger Telles that he "needed to relieve himself," and Park Ranger Telles told Mr. Gaede that "he would need to urinate where he was standing" to cause Mr. Gaede "to urinate on himself" by threatened tazer use "in the presence of other individuals standing nearby."

After a California Highway Patrol ("CHP") officer arrived, Park Ranger Telles left. Mr. Gaede was never arrested.

Mr. Gaede's Claims

The complaint alleges:

1. A (first) 42 U.S.C. § 1983 ("section 1983") claim for "unlawful imprisonment under threat of violence" in that Mr. Gaede reasonably believed Park Ranger Telles "would commit violence against him when Defendant Telles threatened Plaintiff with his tazer, caused Plaintiff to remain in one location for 20 to 30 minutes causing Plaintiff to urinate on himself in the presence of others";
2. A (second) unadorned false imprisonment claim;
3. A (third) intentional infliction of emotional distress ("IIED") claim based on defendants'

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"outrageous conduct" to imprison Mr. Gaede on his property and to cause Mr. Gaede to urinate on himself "in the presence of others"; and
4. A (fourth) negligent hiring, training and supervision claim that USFS negligently permitted Park Ranger Telles "to have contact with the public" despite knowing or having reason to know he was incompetent and unfit.

DISCUSSION

F.R.Civ.P. 12(b)(1) Motion To Dismiss Standards

Defendants seek F.R.Civ.P. 12(b)(1) dismissal in that sovereign and related immunities preclude invocation of this Court's subject matter jurisdiction.

F.R.Civ.P. 12(b)(1) authorizes a motion to dismiss for lack of subject matter jurisdiction. Fundamentally, federal courts are of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 341 (1994). A "court of the United States may not grant relief absent a constitutional or valid statutory grant of jurisdiction." U.S. v. Bravo-Diaz, 312 F.3d 995, 997 (9th Cir. 2002). "A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock West, Inc. v. Confederated Tribes, 873 F. 2d 1221, 1225 (9th Cir. 1989). Limits on federal jurisdiction must neither be disregarded nor evaded. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396 (1978). "When subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Tosco Corp. v. Communities for Better Environment, 236 F.3d 495, 499 (9th Cir. 2001).

"Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Ex parte McCardle, 7 Wall. 506, 514, 19 L.Ed. 264 (1868). The requirement that jurisdiction be established as a threshold matter "spring[s] from the nature and limits of the judicial power of the United States" and is "inflexible and without exception." Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462 (1884).

When addressing an attack on the existence of subject matter jurisdiction, a court "is not restricted to the face of the pleadings." McCarthy v. U.S., 850 F.2d 558, 560 (9th Cir. 1988). In such a

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case, a court may rely on evidence extrinsic to the pleadings and resolve factual disputes relating to jurisdiction. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.), cert. denied, 493 U.S. 993, 110 S.Ct. 541 (1989); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983); Smith v. Rossotte, 250 F.Supp.2d 1266, 1268 (D. Or. 2003) (a court "may consider evidence outside the pleadings to resolve factual disputes apart from the pleadings").

No presumptive truthfulness attaches to a plaintiff's allegations, and the existence of disputed material facts does not preclude evaluation of the merits of jurisdictional claims. Thornhill Pub. Co., Inc. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979). On a factual attack of a complaint with affidavits or other evidence, "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 School, 343 F.3d 1036, 1040, n. 2 (9th Cir. 2003).

When a court considers "items outside the pleading" on a F.R.Civ.P. 12(b)(1) motion, the court resolves "all disputes of fact in favor of the non-movant." Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996). The Ninth Circuit Court of Appeals explains that "where the district court has properly considered items outside the complaint in considering a motion to dismiss, the standard we apply upon de novo review of the record is similar to the summary judgment standard that the district court purported to apply." Drier, 106 F.3d at 847.

With these standards in mind, this Court turns to defendants' challenges to this Court's subject matter jurisdiction and related matters.

Sovereign Immunity Bar To Section 1983 Claim Against USFS

Defendants contend that a section 1983 claim against USFS must be dismissed in the absence of a waiver of sovereign immunity.

Suits against the United States brought under the civil rights statutes, 42 U.S.C. §§ 1981, 1983, 1985, 1985 and 1988, "are barred by sovereign immunity." Affiliated Professional Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999); Unimex, Inc. v. United States Dept. of Housing and Urban Development, 594 F.2d 1060, 1061 (5th Cir.1979). "Moreover, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), provides a cause of action only against government officers in their individual capacities." Affiliated Professional

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Home Health Care, 164 F.3d at 286.

"Bivens does not provide a means of cutting through the sovereign immunity of the United States itself." Arnsberg v. U.S., 757 F.2d 971, 980 (9th Cir. 1985), cert. denied, 475 U.S. 1010, 106 S.Ct. 1183 (1986). The Ninth Circuit has explained:

Bivens created a remedy for violations of constitutional rights committed by federal officials acting in their individual capacities. In a paradigmatic Bivens action, a plaintiff seeks to impose personal liability upon a federal official based on alleged constitutional infringements he or she committed against the plaintiff. See, e.g., Balser v. Department of Justice, Office of U.S. Trustee, 327 F.3d 903, 909 (9th Cir.2003). "[A] Bivens action can be maintained against a defendant in his or her individual capacity only, and not in his or her official capacity." Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.1987). This is because a Bivens suit against a defendant in his or her official capacity would merely be another way of
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