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Nhia Kao Vang v. Decker

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
Oct 16, 2012
No. 2:12-cv-01226-MCE-EFB (E.D. Cal. Oct. 16, 2012)

Summary

In Vang, the district court held that a false imprisonment claim accrued when the plaintiffs were arrested and charged based on allegedly false evidence.

Summary of this case from Gonzalez v. United States

Opinion

No. 2:12-cv-01226-MCE-EFB

10-16-2012

NHIA KAO VANG, et al., Plaintiffs, v. STEVEN DECKER, et al., Defendants.


MEMORANDUM AND ORDER

Through this action, Plaintiffs Nhia Kao Vang, Chao Xiong, David Vang, Chong Yang, Chue Hue Vang, and Pang Her (collectively, "Plaintiffs") allege violations of federal law arising out of the 2007 criminal investigation and prosecution of Plaintiffs Chue Hue Vang, Nhia Kao Vang and David Vang (collectively, "the Vang Plaintiffs") for an alleged plot to obtain military weapons to overthrow the government of Laos. Plaintiffs allege violations of the First, Fifth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Plaintiffs also allege state law tort claims for malicious prosecution, wrongful arrest, wrongful imprisonment and intentional infliction of emotional distress. Finally, Plaintiffs request declaratory and injunctive relief. On July 31, 2012, Defendants Jones and the United States' (collectively, "Defendants") moved to dismiss Plaintiffs' Complaint for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 9.) Defendants also moved to dismiss the Complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). Defendant Steven Decker, a special agent of the Bureau of Alcohol, Tobacco, Firearms, and Explosives who was sued in his individual capacity, has not been served pursuant to Rule 4, and therefore does not join the present motion. On August 22, 2012, Plaintiffs filed a timely reply. (ECF No. 13.) For the reasons set forth below, Defendants' Motion to Dismiss is GRANTED.

Although Plaintiffs do not specifically bring suit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680, the FTCA is Plaintiffs' only potential route for their claims to defeat sovereign immunity. 28 U.S.C. § 2679. The Court therefore construes Plaintiffs' claims as being brought under the FTCA.

All further references to "Rule" or "Rules" are to the Federal Rules of Civil Procedure unless otherwise noted.

Because oral argument will not be of material assistance, the Court orders this matter submitted on the briefs. E.D. Cal. Local Rule 78-230(h).

BACKGROUND

Unless otherwise stated, the following facts are derived from Plaintiffs' Complaint. (ECF No. 2.)

Plaintiffs are three Hmong couples residing in West Sacramento and Fresno, California. Plaintiffs contend that the Hmong people who remain in Laos are subject to a genocide carried out by the Laotian government. Plaintiffs further contend that the United States, which called on the Hmong people to fight on its behalf against pro-communist forced during the Vietnam War, has failed to aid the Hmong people in their plight in Laos. Plaintiffs were involved in efforts to bring about a peaceful solution to the Hmong genocide in Laos.

Plaintiff Chue Hue Vang served as secretary to an individual identified as General Vang Pao and was interested in producing a documentary film concerning the Hmong plight, as well as interested in raising money and increasing the overall support for aiding the Hmong people in Laos. Plaintiff Chue Hue Vang was told by an individual named Locha Thao that a meeting to discuss documentary film production was going to be held in Sacramento. Locha Thao received this information from Defendant Decker. On February 7, 2007, Plaintiff Chue Hue Vang met at a Sacramento restaurant with other Hmong elders and Defendant Decker. At the meeting, the group gave Defendant Decker maps that they had created, which showed the locations of Hmong people trapped in the jungles of Laos. Plaintiff Chue Hue Vang primarily served as an interpreter at the meeting. Defendant Decker later asked the group to follow him across the street to a mobile trailer where weapons of various kinds were on display. Plaintiff Chue Hue Vang understood the meeting and the display of weapons to mean that the United States was interested in assisting the Hmong people in escaping from Laos. At no time during this meeting was there any discussion, plan, or agreement regarding a military takeover of Laos, nor did Plaintiff Chue Hue Vang make any agreement regarding the purchase, possession, or transportation of weapons.

Plaintiff Chue Hue Vang attended a second meeting on February 18, 2007, where a documentary film was discussed. After the meeting, Plaintiff Chue Hue Vang was invited to go to a new location at the Doubletree Hotel in Sacramento. He understood the meeting at the hotel to be connected to the documentary film project. However, at the hotel, Defendant Decker showed Plaintiff Chue Hue Vang and other Hmong elders several AK 47s. Defendant Decker led a discussion about a military-backed effort to save the trapped Hmong people in Laos. Plaintiff Chue Hue Vang was confused by the conversation, as he knew that General Vang Pao did not have the money to fund the type of effort Defendant Decker was discussing. According to Plaintiffs, the discussion focused on using weapons as a means to help the Hmong people in Laos defend themselves and escape; an overthrow of the Laotian government was never mentioned. Again, Plaintiff Chue Hue Vang inferred that the United States supported this plan.

Plaintiff Nhia Kao Vang was also asked to attend a meeting to discuss helping the Hmong people in Laos. He was asked to attend the meeting "with an American government person," and was asked to drive a Hmong doctor to the meeting. The group went to a hotel where Defendant Decker showed Plaintiff Nhia Kao Vang and others a display of weapons. At no point was a military takeover of Laos discussed. Plaintiff Nhia Kao Vang was also asked to go on a trip to Washington, D.C. He agreed to go on the trip, with six other individuals. Plaintiffs allege that this trip was simply for tourism and "had nothing to do with any kind of fundraising effort" as Defendant Decker later claimed.

Plaintiff David Vang was told by Locha Thao to prepare a document called "the Popcorn document." Defendant Decker told Locha Thao to ask Plaintiff David Vang to do so. The Popcorn document detailed a plan for a military coup of Laos. Locha Thao also told Plaintiff David Vang that Defendant Decker had stated that the United States not only supported the coup described in the Popcorn document but was going to fund the operation and provide arms and special forces for it. Plaintiff David Vang was also told that the United States would pay him $5000 for preparing the document. Plaintiff David Vang thus prepared the Popcorn document with the understanding that the operation detailed therein was a government-backed military operation. The Criminal Case

The facts regarding the criminal case against the Vang Plaintiffs are taken from reference to the docket in that case unless otherwise stated. (ECF No. 10-1). The Court may consider documents referenced in a complaint, or which a complaint in some way depends on, in a motion to dismiss without converting the motion to dismiss into a motion for summary judgment. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).
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As a result of the above listed facts, a criminal complaint was filed before this Court on June 4, 2007, charging the Vang Plaintiffs, among others, with conspiracy to violate the Neutrality Act and conspiracy to receive and possess missiles, among other things. Plaintiffs allege that Defendant Decker intentionally deceived the grand jury, as Defendant Decker knew that the Vang Plaintiffs did not have any criminal intent to enter into an illegal conspiracy to overthrow the Laotian government, or to possess military equipment unlawfully. (ECF No. 2 at 10.)

Arrest warrants were returned executed on June 4, 2007, for Plaintiff Chue Hue Vang, and on June 5, 2007, for Nhia Kao Vang. An arrest warrant was returned executed on June 14, 2007, for Plaintiff David Vang. On June 14, 2007, the Vang Plaintiffs were charged with numerous counts arising from the alleged conspiracy to overthrow the government of Laos. Plaintiffs were held in custody until they were released on bond on July 13, 2007.

On March 9, 2009, the Vang Plaintiffs, among others, filed a Motion to Dismiss for Outrageous Government Conduct. Plaintiffs alleged that both the undercover agents and the prosecutors engaged in misconduct throughout the prosecution and the underlying investigation. (ECF No. 10-3.) The Court denied the motion on May 11, 2009, but provided that Plaintiffs could renew the motion after further discovery.

Ultimately, a Second Superseding Indictment was returned on June 24, 2010. Plaintiffs filed numerous motions to dismiss, including a renewed Motion to Dismiss for Outrageous Government Conduct. On November 12, 2010, the Court granted in part and denied in part Plaintiffs' motion to dismiss Counts One, Three, Four, and Five. The Court dismissed Counts Four and Five on the grounds that the Second Superseding Indictment "fail[ed] to put each defendant on notice of the nature of charges against him in order to allow him to prepare a defense or to ensure he is being prosecuted on the basis of the facts presented to the grand jury" and "fail[ed] to apprise each defendant of the specific conduct he engaged in the allegedly violates the [Neutrality] Act." (ECF No. 10-6.)

Subsequently, on January 10, 2011, the government moved to dismiss all charges against the Vang Plaintiffs "in the interests of justice." (ECF No. 10-8.) The Court granted the motion that same day.

Administrative Claims

On July 12, 2011, Plaintiffs Nhia Kao Vang, Chao Xiong, David Vang, and Chong Yang served FTCA claims on the United States. On July 29, 2011, Plaintiffs Chue Hue Vang and Pang Her served their FTCA claims on the United States. On July 18, 2011, and August 11, 2011, respectively, the Government acknowledged receipt of the claims. More than six months have passed since the submission of Plaintiffs' FTCA claims, and the government has neither accepted nor denied the claims.

STANDARDS

A. Standard under Rule 12(b)(6)

On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the non-moving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant a fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (1997) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual allegations. Id. However, "a plaintiff's obligations to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (internal citations and quotations omitted). A court is not required to accept as true a "legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the pleading must contain something more than a "statement of facts that merely creates a suspicion [of] a legally cognizable right of action.")).

Furthermore, "Rule 8(a)(2) . . . requires a 'showing,' rather than a blanket assertion, of entitlement to relief." Twombly, 550 U.S. at 556 n.3 (internal citations and quotations omitted). "Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirements of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests." Id. (citing 5 Charles Alan Wright & Arthur R. Miller, supra, at § 1202). A pleading must contain "only enough facts to state a claim to relief that is plausible on its face." Id. at 570. If the "plaintiffs . . . have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed." Id. However, "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

B. Standard under Rule 12(b)(1)

Federal courts are courts of limited jurisdiction and are presumptively without jurisdiction over civil actions. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The burden of establishing the contrary rests upon the party asserting jurisdiction. Id. Because subject matter jurisdiction involves a court's power to hear a case, it can never be forfeited or waived. United States v. Cotton, 535 U.S. 625, 630 (2002). Accordingly, lack of subject matter jurisdiction may be raised by either party at any point during the litigation, through a motion to dismiss pursuant to Rule 12(b)(1). Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); see also Int'l Union of Operating Eng'rs v. Cnty. of Plumas, 559 F.3d 1041, 1043-44 (9th Cir. 2009). Lack of subject matter jurisdiction may also be raised by the district court sua sponte. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). Indeed, "courts have an independent obligation to determine whether subject matter jurisdiction exists, even in the absence of a challenge from any party." Id.; see Fed. R. Civ. P. 12(h)(3) (requiring the court to dismiss the action if subject matter jurisdiction is lacking).

There are two types of motions to dismiss for lack of subject matter jurisdiction: a facial attack and a factual attack. Thornhill Publ'g Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). Thus, a party may either make an attack on the allegations of jurisdiction contained in the nonmoving party's complaint, or may challenge the existence of subject matter jurisdiction in fact, despite the formal sufficiency of the pleadings. Id.

When a party makes a facial attack on a complaint, the attack is unaccompanied by supporting evidence, and it challenges jurisdiction based solely on the pleadings. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). If the motion to dismiss constitutes a facial attack, the Court must consider the factual allegations of the complaint to be true, and determine whether they establish subject matter jurisdiction. Savage v. Glendale High Union Sch. Dist. No. 205, 343 F.3d 1036, 1039 n.1 (9th Cir. 2003). In the case of a facial attack, the motion to dismiss is granted only if the nonmoving party fails to allege an element necessary for subject matter jurisdiction. Id. However, in the case of a facial attack, district courts "may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment." Safe Air for Everyone, 373 F.3d at 1039.

In the case of a factual attack, "no presumptive truthfulness attaches to plaintiff's allegations." Thornill, 594 F.2d at 733 (internal citation omitted). The party opposing the motion has the burden of proving that subject matter jurisdiction does exist and must present any necessary evidence to satisfy this burden. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989). If the plaintiff's allegations of jurisdictional facts are challenged by the adversary in the appropriate manner, the plaintiff cannot rest on the mere assertion that factual issues may exist. Trentacosta v. Frontier Pac. Aircraft Ind., Inc., 813 F.2d 1553, 1558 (9th Cir. 1987) (quoting Exch. Nat'l Bank of Chi. v. Touche Ross & Co., 544 F.2d 1126, 1131 (2d Cir. 1976)). Furthermore, the district court may review any evidence necessary, including affidavits and testimony, in order to determine whether subject matter jurisdiction exists. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988); Thornhill, 594 F.2d at 733. If the nonmoving party fails to meet its burden and the court determines that it lacks subject matter jurisdiction, the court must dismiss the action. Fed. R. Civ. P. 12(h)(3).

A court granting a motion to dismiss a complaint must then decide whether to grant leave to amend. Leave to amend should be "freely given" where there is no "undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment . . . ." Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to be considered when deciding whether to grant leave to amend). Not all of these factors merit equal weight. Rather, "the consideration of prejudice to the opposing party . . . carries the greatest weight." Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that "the complaint could not be saved by any amendment." Intri-Plex Techs. v. Crest Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006, 1013 (9th Cir. 2005)); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) ("Leave need not be granted where the amendment of the complaint . . . constitutes an exercise in futility . . . .")).

ANALYSIS

A. Section 1983 Claims

Plaintiffs' First Cause of Action alleges that Defendants violated their First Amendment right to freedom of speech and right to petition the government for redress of grievances, as well as their Fifth Amendment and Fourteenth Amendment rights to due process. (ECF No. 2 at 22.) Plaintiffs' Fifth Cause of Action alleges that Defendants violated Plaintiffs' Fifth Amendment substantive due process rights by interfering with their spousal relationships. (ECF No. 2 at 56.)

Section 1983 provides a cause of action against persons acting under the color of state law. See 42 U.S.C. § 1983. To act under state law, a defendant must "exercise power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." West v. Atkins, 487 U.S. 42, 49 (1988). "There is no valid basis for a claim under § 1983" brought against a federal official acting under color of federal law. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987). In the present case, while Plaintiffs allege that Defendant Jones is liable under § 1983 for violating Plaintiffs' constitutional rights, Plaintiffs make no allegation that Defendant Jones acted under the color of state law. Defendant Jones is clearly a federal actor and acted under the color of federal, rather than state, law. Accordingly, Plaintiffs have failed to state a cognizable claim against Defendant Jones under § 1983.

Furthermore, § 1983 provides recourse to persons who have been deprived of their constitutional rights by the actions of a person acting under color of law. 42 U.S.C. § 1983 (emphasis added). The United States is not a "person" within the meaning of § 1983. See Jachetta v. United States, 653 F.3d 898, 908 (9th Cir. 2011) (discussing suit against federal agencies pursuant to § 1983); Fixel v. United States, 737 F. Supp. 593, 596 (D. Nev. 1990) ("The United States is not a 'person' and cannot be sued under § 1983) (citing Accardi v. United States, 435 F.2d 1239 (3d Cir. 1970)).

Plaintiffs argue that the United States waived its sovereign immunity in § 1983 actions when it signed the United Nations International Covenant on Civil and Political Rights ("ICCPR"), and that the doctrines of treaty estoppel and judicial estoppel prevent the government from claiming sovereign immunity in such actions. However, "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." United States v. Mitchell, 463 U.S. 206, 212 (1983). Before a court may exercise jurisdiction over any suit against the government, there must be "a clear statement from the United States waiving sovereign immunity, together with a claim falling within the terms of the waiver." United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003). "The government's waiver of sovereign immunity cannot be implied, but 'must be unequivocally expressed in statutory text.'" Jachetta, 653 F.3d at 903. "Absent a waiver of sovereign immunity, courts have no subject matter jurisdiction over cases against the government." Kaiser v. Blue Cross of Cal., 347 F.3d 1107, 1117 (9th Cir. 2003) (citing Mitchell, 463 U.S. at 212). "The ICCPR contains no explicit language waiving sovereign immunity of the United States." Godfrey v. Ross, No. CIV 2:11-2308 WBS EFB, 2012 WL 507162, *5 (E.D. Cal. Feb 15, 2012). Rather, the ICCPR "contains general statements affirming the rights of individuals to live free from discrimination and oppression." Id. Accordingly, the ICCPR is not a waiver of sovereign immunity, id., and Plaintiffs' argument fails.

Moreover, the United States is not judicially estopped from asserting its sovereign immunity. The doctrine of judicial estoppel provides that "where a party assumed a certain position in a legal proceeding, and succeeds in maintaining that position, he many not thereafter, simply because his interests have changed, assume a contrary position . . . ." Davis v. Wakelee, 156 U.S. 680, 689 (1895). "This rule . . . 'generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase." New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting Pegram v. Herdrich, 530 U.S. 211, 227 n.8 (2000)). The government has not taken any contrary positions regarding its sovereign immunity in the present litigation. Thus, it is not judicially estopped from raising its sovereign immunity as an affirmative defense against Plaintiffs' claims.

Because the United States has not waived its sovereign immunity in this case, the Court does not have subject matter jurisdiction over Plaintiffs' § 1983 claims against the government. Defendants' motion to dismiss Plaintiffs' § 1983 claims is therefore granted.

B. Bivens Violations

Plaintiffs' Second Cause of Action alleges violations of Plaintiffs' Fourth, Fifth, and Fourteenth Amendment rights pursuant to Bivens. (ECF No. 2 at 26, citing 403 U.S. 388.) Bivens created a remedy for violations of constitutional rights committed by federal officers acting in their individual capacities. Consejo de Desarrollo Economico de Mexicall, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007) (citing Bivens, 403 U.S. 388)). Thus, to state a Bivens claims, a plaintiff must allege that persons acting under the color of federal law violated his constitutional rights. Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (citing Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991)). An action under Bivens is therefore identical to one brought under 42 U.S.C. § 1983 except for the replacement of a state actor under § 1983 by a federal actor under Bivens. Id.

1. Sovereign Immunity

"In a suit against the United States, there cannot be a right to money damages without waiver of sovereign immunity." United States v. Testan, 424 U.S. 392, 400 (1976). The doctrine of sovereign immunity bars Bivens actions against the United States. Arnsberg v. United States, 757 F.2d 971, 980 (9th Cir. 1984). The Court therefore lacks subject matter jurisdiction over Plaintiffs' Bivens claims against the government.

Moreover, "[i]t has long been the rule that the bar of sovereign immunity cannot be avoided by naming officers and employees of the United States as defendants." Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688 1949)). Claims against federal officials in their official capacities are essentially claims against the United States. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (citing Monell v. N.Y.C. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). Thus, a Bivens action "can be maintained against a defendant in his or her individual action only, and not in his or her official capacity." Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996) (quoting Daly-Murphy, 837 F.2d 348 (9th Cir. 1987)). As such, Plaintiffs' claims against Defendant Jones in his personal capacity are essentially claims against the United States, and therefore is without merit.

Plaintiffs argue that Ex Parte Young, 209 U.S. 123 (1908), protects their claim against Defendants. However, Ex Parte Young "provides a narrow exception to Eleventh Amendment immunity for certain suits seeking declaratory and injunctive relief against unconstitutional actions taken by state actors in their official capacities." Rounds v. Or. State Bd. of Higher Ed., 166 F.3d 1032, 1036 (9th Cir. 1999) (citing Ex Parte Young, 209 U.S. at 155-56). The Eleventh Amendment precludes states from being sued in federal court, and thus bars § 1983 suits against state governments. See, e.g., Alabama v. Pugh, 438 U.S. 781 (1978); Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982). Ex Parte Young is thus inapplicable to Plaintiffs' case as it is sovereign immunity and not Eleventh Amendment immunity that bars Plaintiffs' claims. Plaintiffs have therefore failed to state a claim upon which relief can be granted, and the Court lacks subject matter jurisdiction over Plaintiffs' claim. Accordingly, Defendants' motion to dismiss Plaintiffs' Bivens claims against both the United States and Defendant Jones in his official capacity is granted.

2. Claim against Defendant Jones in his Personal Capacity

Sovereign immunity does not bar actions for damages, including a Bivens claim, against a federal employee in his individual capacity for violations of a plaintiff's constitutional rights. Gilbert, 756 F.2d at 1459. However, the plaintiff "must plead that each [g]overnment-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676. Moreover, "vicarious liability is inapplicable to Bivens . . . ." Id. Plaintiffs' Complaint contains no allegation that Defendant Jones was personally involved in the facts giving rise to Plaintiffs' Bivens claims. Rather, Plaintiffs assert only that Defendant Jones "is the director of the United States of America Bureau of Alcohol Tobacco and Firearms." (ECF No. 2 at 3.) Plaintiffs plead no other facts to suggest that Defendant Jones, through his "own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676. As such, Plaintiffs have failed to state a claim against Defendant Jones in his individual capacity. Defendants' motion to dismiss Plaintiffs' Bivens claims against Defendant Jones in his individual capacity is therefore granted.

C. FTCA Claims

Plaintiffs' Third Cause of Action alleges state law tort claims for malicious prosecution, wrongful arrest, and wrongful imprisonment. (ECF No. 2 at 40.) Plaintiffs' Fourth Cause of Action asserts that Defendants are liable for intentional infliction of emotional distress. (ECF No. 2 at 53.) As noted above, while Plaintiffs do not specifically bring suit under the FTCA, 28 U.S.C. §§ 2679(b)(1), 2679(d)(1), the FTCA is Plaintiffs' only potential route for their claims to defeat sovereign immunity. 28 U.S.C. § 2679. The FTCA specifies that the "United States shall be liable . . . to tort claims in the same manner and to the same extent as a private individual under like circumstances." Id. § 2676. The terms of the FTCA create liability for the government if the act is a tort in the state where the conduct occurred. Id. § 2671. The FTCA is the exclusive remedy for any tort claim resulting from the act or omission of a government employee acting within the scope his or her employment, with the exception of Bivens remedies for constitutional tort claims. See id. § 2679. The FTCA waives sovereign immunity for claims against the federal government arising from torts committed by federal employees who are acting within the scope of their employment. Id. §§ 1346(b)(1), 2679(d)(1). Thus, Plaintiffs may properly bring suit against Defendants for their state law tort claims.

However, the FTCA has a two-year statute of limitations. 28 U.S.C. § 2401(b). "[T]he statute of limitations in 28 U.S.C. § 2401(b) is jurisdictional . . . ." Marley v. United States, 567 F.3d 1030, 1032 (9th Cir. 2009). "As a general rule, a claim accrues 'when a plaintiff knows or has reason to know of the injury which is the basis of his action.'" Hensley v. United States, 531 F.3d 1052, 1056 (9th Cir. 2008) (quoting Gibson v. United States, 781 F.2d 1334, 1344 (9th Cir. 1986)). Under California law, "[t]he elements of a tortious claim of false imprisonment are: (1) the non-consensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief." Bulfer v. Dobbins, No. 09-CV-1250 JLS (POR), 2011 WL 530039, *14 (S.D. Cal. Feb. 7, 2011) (quoting Easton v. Sutter Coast Hosp., 80 Cal. App. 4th 485 (2000)). "False arrest is not a different tort; it is merely 'one way of committing a false imprisonment." Id. (quoting Martinez v. City of L.A., 141 F.3d 1373, 1379 (9th Cir. 1998)). "A cause of action for false arrest accrues on the arrest and is actionable immediately." Id. (quoting Mohlman v. City of Burbank, 179 Cal. App. 3d 1037 (1986)). A cause of action for intentional infliction of emotional distress accrues, and the two-year statute of limitations begins to run, when the plaintiff suffers the severe emotional distress. Thomas v. Hickman, No. 1:06-CV-0215 AWI SMS, 2009 WL 1273190, *19 (E.D. Cal. May 5, 2009) (quoting Cantu v. Resolution Trust Corp., 4 Cal. App. 4th 857, 889 (1992)).

In early June of 2007, the Vang Plaintiffs were arrested and charged with counts arising from an alleged conspiracy to overthrow the government of Laos. (ECF No. 10-1.) Plaintiffs' claims for false arrest and false imprisonment thus accrued in June 2007, and the statute of limitations for those claims expired in early June 2009. Assuming that Plaintiffs suffered severe emotional distress at the time of the Vang Plaintiffs' arrest, as Plaintiffs allege that they were "quite literally scared to death over the decision by the [United States] to bring these false charges," Plaintiffs' cause of action for intentional infliction of emotional distress also accrued at the time of the arrest.

The Vang Plaintiffs filed their motion to dismiss for outrageous government conduct on March 9, 2009. (ECF No. 10-3.) Thus, at the very latest, Plaintiffs knew or had reason to know of Defendants' tortious conduct, and their injuries arising therefrom, by March 2009. Under this view, Plaintiffs' claims for wrongful arrest, wrongful imprisonment, and intentional infliction of emotional distress accrued in March 2009, and the statute of limitations for those claims expired in March of 2011. However, Plaintiffs did not present their tort claims to the Bureau of Alcohol, Tobacco, Firearms, and Explosives until July of 2011. (ECF No. 2 at 6-7.) Thus, whether Plaintiffs' claims accrued in June 2007 or March 2009, Plaintiffs' claims for wrongful arrest, wrongful imprisonment and intentional infliction of emotional distress are barred by the FTCA's statute of limitations. Because the FTCA's statute of limitations is jurisdictional, Marley, 567 F.3d at 1032, the Court lacks jurisdiction over Plaintiffs' claims. Defendants' motion to dismiss the claims is therefore granted.

The two-year statute of limitations does not, however, bar Plaintiffs' malicious prosecution claim. A common law action for malicious prosecution requires a plaintiff to establish that "the underlying prosecution: (1) was commenced by or at the direction of the defendant and terminated in [the plaintiff's] favor; (2) was brought without probable cause, and (3) was initiated with malice." Conrad v. United States, 447 F.3d 760, 767 (9th Cir. 2006) (quoting Sheldon Appel Co. v. Albert & Oliker, 47 Cal. 3d 863 (1989)). A malicious prosecution claim accrues when the underlying prosecution terminates in the plaintiff's favor. Geiche v. City of S.F., No. C 08-3233 JL, 2009 WL 1948830, *3 (N.D. Cal. July 2, 2009) (citing Babb v. Sup. Ct., 3 Cal. 3d 841, 846 (1971)); see also Heck v. Humphrey, 512 U.S. 477, 484-85 (1994). "The theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused, and coupled with the other elements of lack of probable cause and malice, establishes the tort, that is, the malicious and unfounded charge against an innocent person." Jaffe v. Stone, 18 Cal. 2d 146, 150 (1941). The California Supreme Court has indicated that "if . . . the dismissal is on technical grounds, or for procedural reasons, or for any other reason not inconsistent with [the plaintiff's] guilt, it does not constitute a favorable termination." Id.; see also Babb, 3 Cal. 3d at 750-751. Moreover, California courts have held that a dismissal "in the interests of justice" is not a favorable termination for purposes of a malicious prosecution claim, as it "does not necessarily imply factual innocence, but rather may reflect the result of a negotiated or pragmatic disposition of the case." People v. Matthews, 7 Cal. App. 4th 1052, 1056 (1992) (citing People v. Glimps, 92 Cal. App. 3d 323-24 (1979)).

Here, Plaintiffs do not allege facts sufficient to demonstrate that the prosecution of the Vang Plaintiffs terminated in their favor. The charges against the Vang Plaintiffs were dismissed in part on their own motion and in part "in the interests of justice." These dismissals do not constitute a favorable termination for purposes of a malicious prosecution claim under California law, as they do not "necessarily imply" the Vang Plaintiffs' "factual innocence." Matthews, 7 Cal. App. 4th at 1056. Accordingly, Plaintiffs have failed to state a claim for malicious prosecution, and Defendants' motion to dismiss the claim is granted.

D. Requests for Declaratory and Injunctive Relief

In each cause of action, Plaintiffs request that the Court enjoin Defendants from retaliating against Plaintiffs for bringing suit and committing an act in retaliation for Plaintiffs' previous attempts to bring justice for the Hmong people in Laos. Plaintiffs also seek an affirmative injunction and ask that the Court require Defendants to issue a declaration that Defendants violated Plaintiffs' civil rights, and that Plaintiffs are factually innocent of the criminal charges brought against them.

As established above, neither § 1983 nor Bivens affords Plaintiffs relief in the present case. See supra. Accordingly, Defendants' motion to dismiss Plaintiffs' requests for declaratory and injunctive relief pursuant to both § 1983 and Bivens is granted.

To the extent that Plaintiffs request declaratory and injunctive relief pursuant to the FTCA, these claims also fail. The FTCA provides federal jurisdiction only for civil claims against the United States "for money damages." 28 U.S.C. § 1346(b)(1). The FTCA does not provide for injunctive relief. Id. Thus, Defendants' motion to dismiss Plaintiffs' claims for declaratory and injunctive relief pursuant to the FTCA is also granted.

CONCLUSION

For the reasons set forth above, Defendants' Motion to Dismiss Plaintiffs' Complaint (ECF No. 9) is GRANTED with leave to amend. Not later than twenty (20) days following the date of this Memorandum and Order is electronically filed, Plaintiffs may file an amended complaint. If no amended complaint is filed within said twenty- (20) day period, without further notice to the parties, the causes of action dismissed by virtue of the Memorandum and Order will be dismissed with prejudice.

IT IS SO ORDERED.

______________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE


Summaries of

Nhia Kao Vang v. Decker

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
Oct 16, 2012
No. 2:12-cv-01226-MCE-EFB (E.D. Cal. Oct. 16, 2012)

In Vang, the district court held that a false imprisonment claim accrued when the plaintiffs were arrested and charged based on allegedly false evidence.

Summary of this case from Gonzalez v. United States
Case details for

Nhia Kao Vang v. Decker

Case Details

Full title:NHIA KAO VANG, et al., Plaintiffs, v. STEVEN DECKER, et al., Defendants.

Court:UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Oct 16, 2012

Citations

No. 2:12-cv-01226-MCE-EFB (E.D. Cal. Oct. 16, 2012)

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