Opinion
CASE NO. 06cv0124-LAB (BLM).
December 20, 2006
This matter is before the court on defendant State of California's ("State") Motion To Dismiss and defendant the United States' Motion To Dismiss And For Summary Judgment of plaintiff Michael Casey Carnohan's ("Carnohan") Complaint, captioned "A Civil Action For Loss Of Property." Carnohan, proceeding pro se, alleges federal and state agencies have wrongfully prevented him from owning a firearm. Carnohan filed an Opposition to each Motion. Each defendant filed a Reply. Pursuant to Civil Local Rule 7.1(d)(1), the court finds the issues appropriate for decision on the papers and without oral argument. For the reasons discussed below, the State's Motion is GRANTED and the United States' Motion is GRANTED .
I. BACKGROUND
As recited in the Complaint and documented in Exhibits to the Complaint, Carnohan purchased a firearm from a sporting goods store on January 13, 2004. He failed the required background check, so was not permitted to take possession. The gun dealer received a letter from the state Department of Justice, Firearms Division, instructing the gun not be released to Carnohan because records indicate he is a person not eligible to possess a firearm. Compl. Exh. A. Carnohan disputed the state agency's conclusion his commitment to a mental health facility in 1999, pursuant to CAL. WELF. INST. CODE § 5250 ("Section 5250"), warranted a firearm ownership restriction under the Gun Control Act, 18 U.S.C. § 922(g)(4). He unsuccessfully appealed that decision to the Federal Bureau of Investigation's ("FBI") National Instant Criminal Background Check System ("NICS") division in September 2004. Compl. Exh. B.
Carnohan filed a federal lawsuit in March 2005 attempting to overturn the FBI's finding that denied him firearm ownership. He named as defendants the United States, the FBI Appeal Unit, the California Firearms Denial Unit, and the State of California, seeking relief from the ban and compensatory damages. The court approved his voluntarily dismissal of that action without prejudice after the federal defendants moved to dismiss and for summary judgment in June 2005. Compl. pp. 8-9. In May 2005, Carnohan filed both a federal claim under the Federal Tort Claims Act, 28 U.S.C. §§ 2671- 2680 ("FTCA"), and a state claim with the Government Claims Branch. Compl. Exhs. F, C. He relied on the constitutional right to bear arms, among other things. He included a claim for $582.00 in compensatory damages "computed per receipt of weapon purchased." Compl. Exh. C, pp. 15-17. The State Control Board notified him by letter dated July 26, 2005 that it lacked jurisdiction to consider his claim because the entity that allegedly caused his damages was the FBI through its background checks system. In addition, the claim was rejected as untimely. Compl. Exh. D.
In a letter dated January 9, 2006, the FBI denied Carnohan's FTCA claim as not compensable, on two grounds. Compl. Exh. G. "First, the FTCA does not provide relief for claims alleging a violation of Constitutional rights. 28 U.S.C. § 1346(b)." Id. p. 53. Second, while the FTCA is the exclusive remedy for torts committed by a federal employee acting within the scope of employment, Carnohan presented "no evidence of negligence or a wrongful act or omission on the part of any employee of the FBI that would support" a FTCA claim, nor any evidence of an intentional tort.Id.
Carnohan refiled his federal lawsuit on January 23, 2006. He contends his confinement in a mental health facility pursuant to a CAL. WELF. INST. CODE § 5250 ("Section 5250") 14-day hold in October 1999, the basis for the denial of authorization for him to possess a gun, was involuntary for only a couple of days. He also argues the commitment order from Dr. Stephen Cole. M.D. with the San Diego County Health And Human Services Agency was inappropriate and in error. For those reasons, he argues he should not be precluded from gun ownership, no 14-day hold under Section 5250 should have the consequence of a lifetime prohibition against owning a firearm, and 18 U.S.C. § 922 (the Gun Control Act) does not support the agencies' denial. He seeks injunctive relief to permit him to possess the gun he purchased and compensatory damages of $12,000 against the State and $12,000 against the United States for a two-year loss of use of "his property." Compl. p. 18.
Carnohan alleges two causes of action: a First Cause of Action based on a purported "misapplication" of 18 U.S.C. § 922(g)(4) ("(g) It shall be unlawful for any person — . . . (4) who has been . . . committed to a mental institution" to receive or possess firearms), and a Second Cause of Action alleging the government violated of 28 U.S.C. § 1346(b) (according exclusive jurisdiction to the district courts of civil actions on claims against the United States for money damages actions as the Federal Tort Claims Act ("FTCA")). He summarizes his Complaint contentions: possession of a firearm he purchased "has been unlawfully withheld from him as a consequence of the denial of a Handgun Certificate by the State of California Firearms Denial Review Unit (`Firearms Unit') and the FBI Appeals Unit (`FBI')" due to their alleged "misinterpretation" of 18 U.S.C. § 922 as applying to a "[California Welfare and Institutions Code §] 5250 14 day hold entered in error by Dr. Cole in the Plaintiff's records for County Mental Health in San Diego California, in October 1999." Compl. p. 8. He identifies the "wrongful act" of the government under 28 U.S.C. § 1346(b) as having "interpreted and applied interstate commerce law 18 U.S.C. 922(e)(4) improperly to Plaintiff as a `lifetime restriction' against owning a firearm." Compl. p. 17.
The State government defendant moves to dismiss on the ground its sovereign immunity precludes Carnohan's suit. The federal government defendant moves to dismiss and for summary judgment on grounds Carnohan fails to state a claim on which relief can be granted under the FTCA, and the administrative record demonstrates their entitlement to summary judgment as a matter of law because Carnohan's commitment under Section 5250 on a Section 5150 hold is an involuntary commitment disqualifying him from possessing a firearm under 18 U.S.C. § 922(g)(4) without durational limitation.
II. DISCUSSION
A. Legal Standards 1. Motions To Dismiss
A motion to dismiss under FED.R.CIV.P. ("Rule") 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal of a claim under this Rule is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Navarro, 250 F.3d at 732. Dismissal is warranted where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law"). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534.
In reviewing a Rule 12(b)(6) motion to dismiss, the court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party, including all reasonable inferences to be drawn from the facts alleged. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). In deciding the motion, the court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the court takes judicial notice. Parrino v. FHP, Inc., 146 F.3d 699, 705-706 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994) overruled on other grounds in Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). Leave to amend is ordinarily denied only when it is clear the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Systems, Inc., 957 F.2d 655, 658 (9th Cir. 1992).
2. Motions For Summary Judgment
Summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party shows there is an absence of evidence to support the non-moving party's claims, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 256 (1986). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1305-1306 (9th Cir. 1982). In summary adjudication proceedings, the court does not make credibility determinations or weigh conflicting evidence, as those are determinations for the trier of fact. Anderson, 477 U.S. at 249. Rather, the Court considers the evidence in the light most favorable to the non-moving party. Id. at 255.
To satisfy the shifted burden, the nonmoving party must establish, beyond the pleadings, that there is a genuine issue for trial. Celotex, 477 U.S. at 324; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). To successfully rebut a properly supported motion, the nonmoving party "must point to some facts in the record that demonstrate a genuine issue of material fact and, with all reasonable inference made in the plaintiff's favor, could convince a reasonable jury to find for the plaintiff." Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000), citing Rule 56, Celotex, 477 U.S. at 323, and Anderson, 477 U.S. at 249. "If reasonable minds could differ," the motion should be denied. Anderson, 477 U.S. at 250-251. However, summary judgment must be entered "if, under the governing law, there can be but one reasonable conclusion as to the verdict." Id. B. State's Motion To Dismiss
The State moves for dismissal on grounds this court lacks jurisdiction to decide the dispute and for failure to state a claim upon which relief can be granted. It argues the Eleventh Amendment to the United States Constitution bars an action for damages against a state in federal court without the state's consent: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another state, or by Citizens or Subjects of any Foreign State." It is well settled that protection extends to lawsuits against a state by its own citizens. See Hans v. Louisiana, 134 U.S. 1, 15 (1890); Pennhurst State School Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Kimel v. Florida Bd. of Regents, 528 U.S. 62, 72-73 (2000). The Eleventh Amendment prevents federal courts from exercising jurisdiction in cases where judgments would be paid directly out of state treasury funds. Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 48 (1994); see Riggle v. California, 577 F.2d 579, 585 (9th Cir. 1978) ("A state may waive immunity from suit in its own courts [for instance, by enacting legislation such as the California Tort Claims Act] without thereby waiving its Eleventh Amendment immunity from suit in federal courts").
Carnohan opposes the State's Motion on grounds the Eleventh Amendment is "excepted" under 42 U.S.C. § 1983 and under 28 U.S.C. § 1331. However, Carnohan has not stated a 42 U.S.C. § 1983 cause of action. In addition, as noted by the State, Congress did not abrogate state sovereign immunity in enacting Section 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 66, 71 (1989) ("Congress in passing § 1983, had no intention to disturb the States' Eleventh Amendment immunity;" and "neither a State nor its officials acting in their official capacity are `persons' under § 1983"); see also Kentucky v. Graham, 473 U.S. 159, 169 n. 17 (1985). Similarly. the jurisdictional provision of 28 U.S. C. § 1331 merely accords federal courts jurisdiction to hear cases arising under federal law, mirroring the language found in Article III, section 2 of the Constitution establishing the scope of federal court jurisdiction. Eleventh Amendment immunity is a limitation on Article III jurisdiction. Pennhurst State School Hospital, 465 U.S. at 98 ("In short, the principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III").
In this lawsuit, Carnohan seeks money damages against the State of California. The State has not consented to federal jurisdiction in these circumstances. The Eleventh Amendment bars his claim. The State's Motion To Dismiss is accordingly GRANTED .
C. United States' Motion To Dismiss And For Summary Judgment 1. Motion To Dismiss
The United States moves for dismissal, contending to the extent the Complaint can be construed as a claim under the FTCA, it fails to state a claim upon which relief can be granted. Carnohan's Second Cause of Action invokes the FTCA to redress the denial of his alleged "loss of use and enjoyment of" his property interest in owning a firearm, for which he seeks compensatory damages in the amount of $12,000.00 from the United States. Compl. ¶ 17. The United States argues he was lawfully and properly denied ownership of a firearm under the Gun Control Act, and his claim is not cognizable under the FTCA. Mot. 12:16-21. Moreover, the government asserts even if the claim were cognizable, FTCA claims for damages must be in a "sum certain" ( 28 C.F.R. § 14.2(a)), and Carnohan stated the "sum certain" in the administrative proceeding as $582.00, so that any FTCA damages would be limited to that amount. See McNeil v. United States, 508 U.S. 106, 108 n. 2 (1993) ("[p]ursuant to 28 U.S.C. § 2675(b), a claimant is barred from seeking in federal court `any sum in excess of the amount of the claim presented to the federal agency'") (citation omitted).
Carnohan attached and relies on the content of multiple exhibits to his Complaint. Neither side contests the authenticity of those documents. Accordingly, the court may properly consider them in deciding a Motion To Dismiss. Parrino, 146 F.3d at 705-06; Branch, 14 F.3d at 453-54. The exhibits substantiate Carnohan appealed to the FBI the state agency's denial of the firearm transfer. On December 27, 2004, the FBI upheld the California DOJ's denial, applying 18 U.S.C. § 922(g)(4), and advised Carnohan of procedures he could use to submit documentation to nullify the FBI's decision or to apply to the California DOJ to correct the record. Carnohan provided additional documentation in support of his appeal, but the FBI again sustained the California DOJ's denial based on the federal firearms disability codified at 18 U.S.C. § 922(g)(4), i.e., a person "who has been committed to a mental institution," explaining to Carnohan that commitment pursuant to Section 5250 is involuntary. The FBI again referred Carnohan to the California DOJ if he had information to show he was involuntarily committed in error, stating until his records were corrected and received by the FBI directly from the state agency, it could take no further action on his claims. Carnohan characterizes the decision to block his ownership of a firearm as a misapplication of the gun control statute.
By letter dated April 6, 2005, the FBI had notified Carnohan that until the record was modified by the state agency reporting the mental health confinement underlying the NICS rejection of his certification to own a firearm, the FBI would take no further action. Compl. Exh. E.
"The FTCA acts as a waiver of the United States' traditional sovereign immunity for certain torts committed by its employees."Delta Savings Bank v. United States, 265 F.3d 1017, 1024 (9th Cir. 2001). Under the FTCA, "[t]he United States shall be liable, . . . relating to tort claims, in the same manner and to the same extend as a private individual under like circumstances." 28 U.S.C. § 2674. However, sovereign immunity prevents suits against the United States without its consent, and the consent must be unequivocally manifested in the plain language of the statute, with the waiver of sovereign immunity extending "unambiguously to such money claims." Lane v. Pena, 518 U.S. 187, 192 (1996), citing United States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992). The United States summarizes Carnohan's FTCA claim as alleging "the FBI breached a duty of care when it `improperly applied 18 U.S.C. § 922 to [Carnohan's] circumstance.'" Mot. P A 13:12-13, quoting Compl. p. 17 ("The `wrongful act' of the government was that it interpreted and applied interstate commerce law 18 U.S.C. 922[(g)(4)] improperly to [Carnohan] as a `lifetime restriction' against owning a firearm"). However, "the source of substantive liability under the FTCA" in its reference to "the law of the place" ( 28 U.S.C. § 1346(b)) has consistently been held to mean "law of the State."FDIC v. Meyer, 510 U.S. 471, 477-78 (1994). "The breach of a duty created by federal law is not, by itself, actionable under the FTCA." Love v. United States, 60 F.3d 642, 644 (9th Cir. 1995). Carnohan needed to base his tort claim on California state tort law. Delta Savings Bank, 265 F.3d at 1025; see Lutz v. United States, 685 F.2d 1178, 1184 (9th Cir. 1982) (source of duty under FTCA must be state law, not military base regulation). Instead, Carnohan bases his tort claim upon alleged misuse or misapplication of a federal statute, defeating his FTCA cause of action.
Contrary to Carnohan's allegations, the record reveals no "misapplication" of the gun control legislation. Carnohan does not dispute in principle "the authority of the United States or the State of California to regulate and control the ownership of handguns by citizens in California." Opp. 2:14-16. He opposes the United States' motions by characterizing his Complaint as presenting the question "whether the language of 18 USC 922(e)(4) can be applied to prevent a citizen from lifetime ownership of a handgun." Opp. 2:6-9. In particular, he articulates the issue to be decided as "whether the language in 18 USC 922(e)(4), namely `. . . [c]ommited to a mental institution' constitutes a dispositive permissive construction" in his circumstances. Id. 2:8-10.
As traced in the federal defendants' Motion, in reliance on Carnohan's exhibits, the NICS applied federal gun control legislation and regulations ( i.e., 18 U.S.C. § 922, 27 C.F.R. § 478.11 (2005)) to the record of Carnohan's Section 5250 certification for confinement to a mental health facility, an event the government contends precludes him from lawfully possessing a firearm. Federal policy and gun control statutes reflect the determination that persons with a history of mental disturbances should not have access to weapons. See United States v. Dorsch, 363 F.3d 784, 787 (8th Cir. 2004) ("One of the purposes of enacting the federal firearms ban was to establish uniformity in determinations of whether a person is within a category of persons prohibited from possessing firearms. Once we determine that a defendant has been committed to a mental institution, state legislative intent is irrelevant").
The ATF regulation associated with implementing 18 U.S.C. § 922(g) criminalizing possession of a firearm by any person who has been committed to a mental institution, defines the term to encompass only involuntary commitments:
A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.27 C.F.R. § 478.11 (2005) (emphasis added).
The California DOJ applied 18 U.S.C. § 922(g) to deny the transfer of the firearm Carnohan because commitments pursuant to CAL. WELF. INST. CODE § 5250 are involuntary. That section provides, in pertinent part (emphasis added):
If a person is detained for 72 hours under the provisions of Article I (commencing with Section 5150) or under court order for evaluation pursuant to Article 2 (commencing with Section 5200) or Article 3 (commencing with Section 5225) and has received an evaluation, he or she may be certified for not more than 14 days of intensive treatment related to the mental disorder or impairment by chronic alcoholism under the following conditions:
(a) The professional staff of the agency or facility providing evaluation services has analyzed the person's condition and has found the person is, as a result of mental disorder or impairment by chronic alcoholism, a danger to others, or to himself or herself, or gravely disabled. . . .
By its terms, detention under Section 5250 is involuntary. See Section 5250(c) ("The person has been advised of the need for, but has not been willing or able to accept, treatment on a voluntary basis") (emphasis added). A Section 5250 detention is also, by its own terms, for intensive treatment of a mental illness. See Bragg v. Valdez, 111 Cal.App.4th 421, 426, 429-30 (2003). Carnohan would have the court construe his post-certification "request" for "voluntary" confinement as trumping the record of his involuntary admission under Section 5250 two days earlier and as converting the required and unambiguous prior finding of "danger" to self and others "as a result of mental disorder or impairment" to detention simply for benign assessment or observation. As a matter of law, Carnohan offers no authority to support that theory of his case. The administrative record supports as the only reasonable construction that Carnohan was "committed" to the mental institution on a 14-day hold after Section 5250 certification.
Carnohan must and does concede he was certified for a Section 5250 commitment. He attempts to circumvent the legal import of that fact by suggesting he could unilaterally convert the formal, involuntary commitment into a voluntary commitment outside the sway of 18 U.S.C. § 922 merely by making that request during the course of his involuntary confinement, and without any evidence the request was granted. He describes his circumstances as "having been admitted to a mental hospital under a 5250 14 day hold that was subsequently changed two days later by the Plaintiff to a Request for Voluntary Admission." Opp. 2:10-12 (emphasis added). On that basis, he takes issue with the United States' construction of his 5250 hold as satisfying the "commitment to a mental institution" criterion in 18 U.S.C. § 922(g)(4) justifying a ban on his subsequent ownership of a firearm and urges the court to "disregard" that argument. Id. 2:21-23. However, the record he provides demonstrates not only that the commitment was certified, not voluntary. Moreover, the record reflects he was re-certified for involuntary commitment under Section 5250 "as being a danger to others and gravely disabled" after he made his Request For Voluntary Commitment. See Compl. Exh. J p. 63 (Dr. Stephen Cole, M.D. Letter).
Carnohan also argues the Section 5250 commitment certification was entered through in error or misunderstanding by his certifying physician. His Complaint Exhibit J is a June 24, 2005 letter from the attending physician at the time of the October 1999 commitment, Dr. Cole. Carnohan wants the court to construe the Section 5250 commitment Dr. Cole unequivocally describes in that letter as involuntary into a "voluntary" commitment outside the scope of the gun control prohibition, on grounds two days into the forced confinement he asked to remain y on a voluntary bases, purportedly "nullifying" the agencies' findings in support of denying him authorization to posses a firearm under 18 U.S.C. § 922(g). However, Dr. Cole substantiates he had Carnohan "admitted to the San Diego County Psychiatric Hospital on 9/23/99 with a 5150 hold as being a danger to others and gravely disturbed," and Carnohan was "certified for a 14-day hospitalization" twice "as being a danger to others and gravely disturbed." Compl. Exh. J at page 61. Similarly, Carnohan's argument that a Section 5250 hold is simply "designed to provide observation and treatment of a patient," thus purportedly outside the scope of the "committed to a mental institution" element of 27 C.F.R. § 478.11 firearm possession exclusion, is without merit. Opp. p. 3. By its terms, a Section 5250 commitment is for "intensive treatment" for mental illness.
As summarized by the United States, from the foregoing authority and an undisputed record: "an involuntary admission to a mental institution in compliance with California law constitutes a commitment for purposes of the federal firearms ban, and, thus, Carnohan is precluded from possessing a firearm" as a matter of law. Mot. 9:21-23. The court concurs on this record Carnohan has not stated a claim upon which relief can be granted and is persuaded any leave to amend the Complaint would be futile. The regulations implementing 18 U.S.C. § 922(g) to preclude firearm possession by certain persons set no limitation on the duration of the prohibition.
The government also argues dismissal and summary judgment are proper because Carnohan can name no Doe defendants, in consideration of the immunity provision of the Gun Control Act codified at 18 U.S.C. § 922(t)(6):
Neither a local government nor an employee of the Federal Government or of any State or local government, responsible for providing information to the national instant criminal background check system shall be liable in an action at law for damages —
(A) for failure to prevent the sale or transfer of a firearm to a person whose receipt or possession of the firearm is unlawful under this section; or
(B) for preventing such a sale or transfer to a person who may lawfully receive or possess a firearm.
Moreover, the defendant Does are defined in the Complaint as individuals acting in their official capacities. See Compl. ¶¶ 6, 7. The Brady Act, 18 U.S.C. § 925A (emphasis added), identifies political entities as the only proper defendants: "Any person . . . may bring an action against the State or political subdivision responsible for providing the erroneous information, or responsible for denying the transfer, or against the United States, as the case may be, for an order directing that the erroneous information be corrected or that the transfer be approved." In addition, leave to sue is restricted to obtaining an order to correct erroneous information. Carnohan has not raised any reasonable inference the classification of his commitment as "involuntary" is erroneous.
Finally, the United States debunks Carnohan's suggested inference he has a constitutionally protected property right under the Second Amendment to own the firearm he purchased. The Second Amendment prohibits the Government from infringing the right "to keep and bear arms." Comp. p. 6. However, Carnohan reads the Second Amendment too broadly. See United States v. Miller, 307 U.S. 174, 178 (1939). Even were a constitutional right to possess a firearm is conferred on individuals, Carnohan's FTCA legal theory provides no remedy for constitutional torts. See FDIC v. Meyer, 510 U.S. 471, 478 (1994). The only other avenue to liability suggested by Carnohan's pleading — interference with a contractual right to own a firearm ( see Compl. pp. 18-20 alleging the Government "delayed rightful ownership of [his] property" that "he purchased") — is also barred by the FTCA, 28 U.S.C. § 2680(h), expressly foreclosing claims brought under the FTCA "arising out of . . . interference with contractual rights." The United States' Motion To Dismiss is accordingly GRANTED .
Carnohan reprises that inference in his Opposition: "Although the government prevented the Plaintiff from taking possession of the subject firearm, the Plaintiff paid value for the firearm, was given a receipt, and has all the rights of ownership of the subject firearm ascribed to property except licensing for use. . . . Ownership occurs at the point of sale of any personal property." Opp. 8:5-9. He should have contract remedies against the gun dealer if the dealer kept his money and the gun after his possession was foreclosed as unlawful.
2. Motion For Summary Judgment
The United States makes an adequate and unrefuted showing of entitlement to summary judgment on the theories and record presented, as Carnohan has identified no triable issue of material fact and the applicable law compels judgment in favor of the United States. The United States presents detailed evidence in the form of a competent Declaration regarding the NICS process, and the application of the background check in Carnohan's case, in support of its showing of entitlement to judgment as a matter of law. The system regulates the transfer of firearms from Federal Firearms Licensees ("FFL") ( i.e., persons licensed by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives as manufacturers, dealers, or importers of firearms) to non-licensed persons and was implemented to comply with the 1993 Brady Handgun Violence Prevention Act. See P As pp. 2-3; Haslebacher Decl. The United States Attorney General delegated to the FBI the authority to perform that function. Under FBI regulations, these background checks may be conducted either by the FBI or by a state or local law enforcement agency acting as an intermediary between an FFL and the FBI. P A's 2:16-22; Haslebacher Decl. The California Department of Justice is designated in this state as the contact point for FFLs' requests for background checks before they may transfer any firearm to a non-licensed individual. Mot. 2:22-3:32. The United States' explanation of the statutory scheme, the complying review process that was followed in Carnohan's case, and its appropriate construction of a Section 5250 involuntary commitment to a mental institution, such as Carnohan's in 1999, as an event foreclosing his certification to own a firearm, shifted the burden to Carnohan to create a triable issue of material fact on the issue of the nature (voluntary or involuntary) of his commitment. As discussed above, the only evidence he produces in purported support of that dispositive element is the June 24, 2005 letter from Dr. Cole, on County of San Diego Health And Human Services Agency letterhead and signed by him. Carnohan characterizes the contents of that letter as demonstrating Dr. Cole erred and had recorded the hospital admission as involuntary solely for his own convenience. The actual contents do not support Carnohan's interpretation. The letter provides, in its entirety:
The United States contends that Carnohan's Complaint is more properly construed as an action under 18 U.S.C. § 925A, a statutory provision providing a judicial remedy for persons denied a firearm due either to reliance on erroneous information about the person provided by state or federal entities, or who was not prohibited from receipt of a firearm under § 922(g) or (n), rather than as a FTCA action. P A 1:25-2:2. Carnohan rejects that construction: "[N]othing requires the Plaintiff to seek remedy from Federal or State statute under 18 U.S.C. 925A. The US has no authority to presume the Plaintiff must do so. The Plaintiff is free to file under any applicable tort liability, and he has done so by filing under FTCA." Opp. 8:231-24. A plaintiff is master of his own pleading, and the court decides these motions on the theories pled, with the observation that, as Carnohan appears to acknowledge, he could not successfully proceed under 18 U.S.C. § 925A.
The detail of the NICS system and process to determine an individual's "eligibility to possess or receive a firearm pursuant to the Brady Handgun Violence Prevention Act (Brady Act), Title 18, United States Code, (U.S.C.), § 922(t)(1) and the Gun Control Act, Title 18 U.S.C. § 922(g) and (n) and state law, as well as the procedural history of Carnohan's background check, are traced in the Declaration of Fanny L. Haslebacher, Esq. Ms. Haslebacher is an attorney employed by the FBI whose duties include providing guidance to the NICS and serving as its custodian of records. She authenticates the records pertaining to Carnohan's NICS transaction number. Carnohan does not challenge the accuracy of the affidavit contents. However, he objects that Haslebacher's presentation is voluminous, distracts with "every permutation and exception imaginable, for processing a handgun certificate, or licensing a citizen to own a handgun in California," creating a "snow storm" tactic with "diverse and irrelevant argument" he contends the court should ignore. Opp. p. 5. The court properly considers pertinent portions of the Declaration as admissible evidence in support of a summary judgment motion. Carnohan does not refute Haslebacher's substantiation, with citations to the agency records provided: Carnohan attempted to purchase a handgun from a California Federal Firearms Licensee (FFL) on January 13, 2004; a subsequent background check conducted by the California DOJ revealed he had been previously involuntarily committed to a mental institution for intensive treatment under the CAL. WELF. INST. CODE § 5250; the California DOJ denied the transfer on that basis, but under a section of that Code alluding to a Section 5250 certification for a period of five years; Carnohan appealed to the California DOJ citing the passage of the five year state prohibition period; the California DOJ subsequently upheld the denial on federal grounds ( 18 U.S.C. § 922(g)(4)) rather than state law grounds; Carnohan appealed to the FBI; on December 27, 2004, the FBI upheld the California DOJ's denial of a firearm under federal law, in particular the prohibitive criteria under 18 U.S.C. § 922(g)(4) for a person who has been committed to a mental institution, but advised Carnohan of procedures, among others, to submit certified documents that could nullify the FBI's denial decision or could challenge the accuracy of the record on which the FBI based denial by applying to the original submitting agency ( i.e., the California DOJ) for correction of the record; Carnohan's additional documentation in support of his appeal, submitted January 13-14, 2005, with the FBI again sustaining, on February 2, 2005, the California DOJ denial based on the federal firearms disability in 18 U.S.C. § 922(g)(4), i.e., a person who has been committed to a mental institution, in recited reliance on state records demonstrating Carnohan had undergone a Section 5250 involuntary commitment sufficient to subject him to the federal firearm prohibition of Section 922(g)(4), but inviting him to submit to the California DOJ any information he had to demonstrate he was involuntarily committed in error, but that the FBI could take no further action until his records were corrected by the state agency and the corrected records received from the agency by the FBI; Carnohan wrote to the FBI on February 11, 2005 to inquire regarding the status of his appeal; the FBI advised him on April 6, 2005 that the NICS section appeal services had received no notification from California that its record had been modified, so no further action would be taken by the FBI; and based on the administrative record it has, the FBI maintains it properly determined Carnohan was subject to a federal firearms disability under 18 U.S.C. § 922(g)(4) for having been "committed to a mental institution," and properly sustained the California DOJ's denial of possession of a firearm as prohibited under federal law. Haslebacher Decl. ¶¶ 16-23.
Dear Mr. Carnohan:
This is in response to your letter dated June 12, 2005. After review of your medical records, the documentation confirms the following:
• You were admitted to the San Diego County Psychiatric Hospital on 9/23/99 with a 5150 hold as being a danger to others and gravely disabled.
• On 9/26/99, you were certified for a 14-day hospitalization.
• On 9/28/99 after 2 days of treatment, you signed a Request for Voluntary Admission.
• On 9/29/99, you were again certified as being a danger to others and gravely disabled.
• On 10/7/99, a Temporary Conservator was appointed to you.
I understand your need and interest in developing a hobby, however the documentation during your hospital stay supports my decisions.
Compl. Exh. J, p. 61.
Moreover, Carnohan attempts no explanation how the second certification for involuntary confinement Dr. Cole substantiates, after Carnohan's request that his admission be voluntary and the appointment of a temporary conservator about ten days later supports a "voluntary commitment" inference. He offers no evidence that he was granted a reclassification of his commitment from involuntary to voluntary in response to his request. On the contrary, Dr. Cole's letter reflects that the day after that request, Carnohan was again found to be a danger to others and himself, warranting continuance of the compulsion associated with involuntary commitments.
The government has shown a complete absence of evidence to support Carnohan's claims, making summary judgment appropriate. See Celotex, 477 U.S. at 325. The court finds the three "facts in controversy" Carnohan identifies as purportedly precluding summary judgment are either immaterial, unsupported by any evidence, contrary to the evidence before the court, or are actually conclusions of law. None is adequate to meet his shifted burden to avoid summary judgment. Carnohan has provided no Declaration or affidavit in support of his bare allegations and arguments. Dr. Cole's letter does not satisfy his shifted burden to raise a triable issue of fact on the voluntariness of his certified commitment, on the allegation of "error" in the record, or of any inadvertence in Dr. Cole's intent to compel Carnohan's 1999 confinement. The purpose of Section 5250 holds is unequivocally to obtain treatment for severe mental health episodes of persons found to be in serious difficulty under Section 5150, not for simple assessment at the request of the patient. Accordingly, applying the 18 U.S.C. § 922 and implementing regulations, Carnohan was properly denied possession of a firearm as a matter of law, warranting summary judgment in favor of defendant the United States.
Carnohan lists: "(1) The definition of `commitment' is a fact in controversy. The application of the term `commitment' to a temporary 5250 hold is in controversy. The issue of whether a temporary 5250 hold constitutes `commitment to an institution' is a triable issue of fact;" "(2) The Plaintiff was never committed to a mental institution. . . .;" "(3) The AG's conclusion that the Plaintiff is a `person with a history of mental disturbances [who should not nave] access to weapons' is false, unsupported by fact, and a triable issue of fact." Opp. 7:9-23.
D. Carnohan's Purported Motion In Limine
After defendants' motions were fully briefed, Carnohan presented a purported "Motion In Limine" objecting under FED.R.EVID. 403 to "statements, representations, and argument" that he has been committed to a mental institution and any bipolar diagnosis as prejudicial, conclusory, and irrelevant. Dkt No. 31. The court rejects the purported "Motion In Limine" as immaterial to its decision on defendants' dispositive motions. In deciding motions to dismiss and motions for summary judgment, the court resolves no factual disputes and makes no factual findings. The court disregards as immaterial to these motions the underlying condition or cause of Carnohan's 1999 confinement in a psychiatric hospital. The fact and record of the commitment itself are the relevant considerations in assessing whether his Complaint states a claim and whether summary judgment for defendants is proper. The court confines its considerations to the Complaint allegations, materials attached to the Complaint, and competent evidence the court is permitted to consider under Rule 12(b)(6) or Rule 56 standards. The Motion In Limine is REJECTED .
III. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED:
1. Defendant State of California's Motion To Dismiss is GRANTED , with prejudice.
2. Defendant United States' Motion To Dismiss is GRANTED , with prejudice, and judgment on the merits in its favor shall be entered, constituting a GRANT of its Motion For Summary Judgment.
3. Carnohan's Motion In Limine is REJECTED .
IT IS SO ORDERED.