Peralta v. United States

• Citation: 475 F.Supp.3d 1086
• Decision Date: 28 July 2020
• Docket Number: Case No.: CV 19-08912-CJC(MRWx)
• Court: U.S. District Court — Central District of California
• Parties: Anabel Fernandez PERALTA, Plaintiff, v. UNITED STATES of America, et al., Defendants.

475 F.Supp.3d 1086

Anabel Fernandez PERALTA, Plaintiff,

v.UNITED STATES of America, et al., Defendants.

Case No.: CV 19-08912-CJC(MRWx)

United States District Court, C.D. California.

Signed July 28, 2020

Eugene Gerald Iredale, Julia Yoo, Grace Jun, Iredale and Yoo APC, San Diego, CA, for Plaintiff.

Damon A. Thayer, AUSA - US Attorneys Office, Los Angeles, CA, for Defendants.

ORDER DENYING IN SUBSTANTIAL PART DEFENDANT'S MOTION TO DISMISS [Dkt. 14]

CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

On October 16, 2019, Plaintiff Anabel Fernandez Peralta brought this Federal Tort Claims Act ("FTCA") action against the United States of America (hereinafter "the Government") and Does 1–50. Now before the Court is the Government's motion to dismiss for lack of subject matter jurisdiction. (Dkt. 14 [hereinafter "Mot."].) For the following reasons, that motion is DENIED IN SUBSTANTIAL PART.¹

II. BACKGROUND

This case arises from a sexual assault that took place at the Women's Camp at Federal Correctional Complex, Victorville ("FCC Victorville"). Plaintiff's Complaint alleges the following facts.

On May 4, 2017, United States Bureau of Prisons ("BOP") correctional officer Apolonio Gamez came across Plaintiff in a storage area in FCC Victorville. (Compl. ¶¶ 21–22.) At the time, Plaintiff was an inmate working in the prison's food service department, and Gamez was her first-level supervisor. (Id. ¶ 22.) Gamez accused Plaintiff of stealing food from the storage area and threatened to put her in "the hole" for theft. (Id. ) Plaintiff knew that there was no special housing unit at FCC Victorville, so she took Gamez's threat to mean that she would be sent to a different facility far away from her family. (Id. ¶ 24.) After making this threat, Gamez said, "[y]ou know I like you. I want to see that body." (Id. ¶ 25.) Gamez proceeded to reach inside Plaintiff's shirt and stroke and suck on her left breast. (Id. ¶¶ 26–27.) Gamez then pulled down Plaintiff's pants while she tried to back away from him. (Id. ¶ 28.) He then unzipped his own pants, removed his penis, and said "put it in your mouth." (Id. ¶ 29.) Plaintiff was terrified and reluctantly performed oral sex on Gamez. (Id. ¶¶ 30–31.) At some point, Gamez ejaculated and some of his semen got onto Plaintiff's bra. (Id. ¶ 34.)

After the assault, Plaintiff became depressed and anxious. (Id. ¶ 36.) She did not immediately report the assault because she feared that prison officials would retaliate by sending her to another facility. (Id. ¶ 38.) But on July 12, 2017, Plaintiff finally told another inmate about what had happened to her. (Id. ¶ 40.) This inmate convinced her to report the assault to BOP officials, which Plaintiff did the following day. (Id. ¶ 41.) The Department of Justice launched an investigation, and an FBI laboratory conducted a DNA test on Plaintiff's bra. (Id. ¶ 42.) The test confirmed that a substance on the bra matched Gamez's DNA. (Id. ) The investigation also uncovered that Gamez had sexually assaulted two other inmates in 2016 and 2017. (Id. ¶ 43.)

On April 4, 2018, Gamez was criminally charged with the alleged sexual assaults. See United States v. Gamez , ED 18-CR-00100, Dkt. 22 [Indictment] (C.D. Cal. Apr. 4, 2018). Eventually, he pled guilty to two counts of sexual abuse of a ward and one count of attempted sexual abuse of a ward, all in violation of 18 U.S.C. § 2243(b). Id. at Dkt. 52 [Plea Agreement]. One of the counts Gamez pled guilty to stemmed from the May 4, 2017 assault of Plaintiff. Id. On January 28, 2019, Gamez was sentenced to a term of 24 months in prison. See id. at Dkt. 62 [Judgment and Commitment Order].

Plaintiff also alleges that BOP officials were aware of Gamez's predatory tendencies before he assaulted her but failed to take action. For example, in 2016, a witness told a lieutenant of the BOP's Special Investigative Services ("SIS") that Gamez was a sexual predator who put the inmates he supervised at risk. (Id. ¶ 16.) About a month later, an inmate reported to a BOP Food Service Administrator that Gamez was having an inappropriate relationship with another inmate. (Id. ¶ 17.) And on October 12, 2016, the BOP SIS received a written tip alleging that Gamez was having inappropriate relations with an inmate and that it was "not safe for the women who work" under him. (Id. ¶ 18.) Despite these warnings, Gamez remained in his position supervising female inmates.

Plaintiff has filed two federal lawsuits related to the May 4, 2017 assault. Both are currently pending before this Court. The first, Peralta v. Gamez , 19-CV-3749 (C.D. Cal. May 1, 2019), asserts four Bivens claims and five state law tort claims against Gamez and unnamed Does. Gamez failed to appear in that action, and the Clerk entered default against him. See Peralta v. Gamez , 19-CV-3749, Dkt. 15 (C.D. Cal. Jul. 29, 2019). The Court subsequently denied Plaintiff's motion for default judgment without prejudice on November 7, 2019. Id. at Dkt. 22.

Plaintiff also filed the instant action against the United States and unnamed Does on October 16, 2019. (See Compl.) In this case, Plaintiff asserts six causes of action under the FTCA for (1) assault, (2) battery, (3) false imprisonment, (4) intentional infliction of emotional distress, (5) negligence, and (6) violation of the Bane Act. (Id. ) The Government moves to dismiss all of these claims for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). (Mot.) Plaintiff opposes that motion. (Dkt. 17 [Opposition to Motion to Dismiss, hereinafter "Opp."].)

III. LEGAL STANDARD

"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). As such, federal courts are presumed to lack jurisdiction in a particular case "unless the contrary affirmatively appears." Stock W., Inc. v. Confederated Tribes of the Colville Reservation , 873 F.2d 1221, 1225 (9th Cir. 1989). In deciding a Rule 12(b)(1) motion challenging subject matter jurisdiction, the burden of proof is on the party asserting jurisdiction, and the court will presume a lack of jurisdiction until the pleader proves otherwise. See Kokkonen , 511 U.S. at 377, 114 S.Ct. 1673.

A jurisdictional challenge under Federal Rule of Civil Procedure 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic evidence. See Warren v. Fox Family Worldwide, Inc. , 328 F.3d 1136, 1139 (9th Cir. 2003). With a facial attack, the challenger asserts that the allegations in a complaint are insufficient on their face to invoke federal jurisdiction, and a court must assume the truth of the complaint's non-conclusory allegations. Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). With a factual attack, "the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id. When ruling on factual attacks, "a court may look beyond the complaint ... without having to convert the motion into one for summary judgment ... [and] need not presume the truthfulness of the [complaint's] allegations." White v. Lee , 227 F.3d 1214, 1242 (9th Cir. 2000) (internal citations omitted).

IV. ANALYSIS

The Government brings a facial attack to Plaintiff's Complaint and contends that her claims fail for several reasons. First, it asserts that this Court lacks subject matter jurisdiction because the Attorney General has not yet certified that Gamez was acting within the scope of his employment when he committed the sexual assault. (Mot. at 11–12.) Next, it contends that even if that certification were not required, Plaintiff has failed to establish subject matter jurisdiction because Gamez was not acting within the scope of his employment under California law. (Id. at 14–21.) Finally, it argues that Plaintiff's Bane Act claim fails and that Plaintiff's request to file an amended complaint asserting additional negligent supervision claims should be rejected as futile. (Id. at 24–25.) The Court first summarizes the relevant statutory background then considers each of these arguments.

A. Statutory Background

"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." F.D.I.C. v. Meyer , 510 U.S. 471, 474, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) ; see also United States v. Mitchell , 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction."). The FTCA—a statute "designed primarily to remove the sovereign immunity of the United States from suits in tort"—operates as such a waiver and allows for certain civil tort actions to proceed against the United States. See Levin v. United States , 568 U.S. 503, 506, 133 S.Ct. 1224, 185 L.Ed.2d 343 (2013) (internal quotations omitted). To fall within the scope of the FTCA, a plaintiff's claim must satisfy six conditions:

[1] [be] against the United States, [2] for money damages, ... [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

Meyer , 510 U.S. at 477, 114 S.Ct. 996 (quoting 28 U.S.C. § 1346(b)(1) ). In essence, the FTCA permits plaintiffs to sue the United States for torts committed by its employees who were acting within the scope of their employment. Id. However, this waiver of immunity is subject to thirteen enumerated exceptions. See 28 U.S.C. § 2680(a) – (n) (listing exceptions to § 1346(b) ). If a plaintiff's tort claim falls within one of the exceptions, the district court lacks subject matter jurisdiction over it. See Morris v. United States , 521...