United States District Court, D. Arizona
REPORT AND RECOMMENDATION
CHARLES R. PYLE, District Judge.
Plaintiff, proceeding pro se, has filed a Complaint that originally named as a Defendant Brian R. Decker. (Doc. 1-3). A Notice of Substitution was filed substituting the United States of America as Defendant in place of Defendant Decker who is an Assistant United States Attorney. (Doc. 3).
Defendant United States ("Defendant") has filed a Motion to Dismiss (Doc. 4, Motion). Plaintiff has filed a "Motion Against Defendant's Motion to Dismiss Claim" construed as a Response (Doc. 25), Defendant has filed a Reply in Support of Motion to Dismiss (Doc. 28), Plaintiff has filed a "Motion Against Defendant's Motion to Dismiss Claim" which is construed as a Supplemental Response (Doc. 29) and Defendant United States has filed a Surreply. (Doc. 37).
This case has been referred to the Magistrate Judge for a Report and Recommendation. (Doc. 11, Order). On February 11, 2016, the Magistrate Judge heard oral argument on Defendant's Motion to Dismiss. (Doc. 50). For the reasons that follow, the Magistrate Judge recommends that the Motion to Dismiss (Doc. 4) filed by Defendant United States should be granted.
Plaintiff has filed a Complaint seeking money damages as a result of actions involving the taking of depositions of certain witnesses in relation to a criminal case filed against him in United States v. Tony Nixon, Case No. CR-14-00668-TUC-DCB. Plaintiff has asserted claims for breach of covenant of good faith and fair dealing, breach of implied in fact contract, breach of written contract, negligence, pain and suffering, pain and unusual punishment, false incarceration, danger to Plaintiff's health, life, and safety due to false incarceration, and loss of personal property due to false incarceration. (Doc. 1-3, Complaint). Plaintiff also alleges a series of claims that refer to counsel's representation. Based on the allegations in the Complaint, it appears that AUSA Decker was the prosecutor in Plaintiff's criminal case and Defendant D. Tyler Francis was Plaintiff's defense counsel. The basis of Plaintiff's allegations in the Complaint is that AUSA Decker and Defendant Francis conspired to engage in unlawful tactics by taking video depositions of certain witnesses and allowing the witnesses to return to Mexico without being charged.
Standards of Review
Defendant United States moves to dismiss the Complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 4, Motion at 1). A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure addresses the court's subject matter jurisdiction. "It is to be presumed that a cause of action lies outside this limited jurisdiction, " and the burden of establishing that jurisdiction exists rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). A Rule 12(b)(1) motion may be either facial, where the inquiry is confined to the allegations in the complaint, or factual, where the court is permitted to look beyond the complaint to extrinsic evidence. Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
"A Rule 12(b)(6) motion tests the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "[A] plaintiff's complaint must have sufficient facts to state a facially plausible claim to relief.'" Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010)). That is, a "plaintiff must plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Telesaurus VPC, LLC. v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The factual allegations asserted in the complaint must be sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Dismissal can be based on the "lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Conservation Force, 646 F.3d at 1241-42. The allegations of a pro se plaintiff are liberally construed. Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007).
Defendant United States contends that the claims asserted against AUSA Decker are in reality against the United States and that Plaintiff has not established or alleged a valid waiver of sovereign immunity as to those claims. (Doc. 4, Motion at 4-5). Defendant contends that Plaintiff has not exhausted administrative remedies for state tort claims pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2675(a), prior to filing this lawsuit by first filing an administrative claim with the appropriate federal agency. ( Id. ). Defendant last argues that the Complaint should be dismissed because any claims against the United States under the FTCA and any claims construed as against AUSA Decker in his individual capacity are barred by the doctrine of absolute prosecutorial immunity. ( Id. at 5-7). Defendant United States requests that the Court take judicial notice of the pleadings filed in United States v. Tony Nixon, Case No. CR-14-00668-TUC-DCB (D. Ariz.), in resolving these issues. ( Id. at 2, n.2).
In support of its Motion to Dismiss, Defendant has submitted the Declaration of Brandon Brokaw, Deputy Administrative Officer in the United States Attorney's Office, District of Arizona, who states in the June 4, 2015 Declaration that Plaintiff has not filed an administrative claim. (Doc. 4-1). In his first Response, Plaintiff contends that he was told by attorney Francis not to bring charges against AUSA Decker but he did file an administrative claim with the U.S. Border Patrol or agency. (Doc. 25). Defendant United States argues in its Reply "[c]ourts have uniformly held that litigants must strictly comply with the requirements of the Federal Tort Claims Act, including the requirement that an administrative claim be filed prior to filing suit, " citing McNeil v. United States, 508 U.S. 106, 113 (1993); Johnson v. United States, 704 F.2d 1431, 1442 (9th Cir. 1983). (Doc. 28 at 2). Defendant has submitted the August 28, 2015 Declaration of Elaine O'Hara, Deputy Assistant Chief Counsel with the U.S. Customs and Border Protection Agency, who states that an examination of records indicates that to date no administrative claims have been filed by or on behalf of Tony Nixon. (Doc. 28-1).
Plaintiff in his Supplemental Response again contends that he filed an administrative claim with the U.S. Border Patrol agency but he was not told about filing a separate claim regarding AUSA Decker. (Doc. 29). Plaintiff submitted with this Supplemental Response copies of a Claim for Damage, Injury, or Death (Standard Form 95), dated August 30, 2015, signed by Tony Nixon, and showing the forms were sent to the U.S. Department of Justice, United States Attorney, and the Border Patrol agency. (Doc. 29). In his more recent "Motion to Dismiss Defendant's Motion, " Plaintiff reasserts that he filed administrative paper work with the Border Patrol agency in 2014 and that he has a receipt and copy of the paper work. (Doc. 41). Plaintiff contends he could not file a claim with two federal agencies because he was told he had to make a choice. (Doc. 41) Defendant United States has responded that the submitted administrative forms are not sufficient to waive sovereign immunity because the forms are dated after the lawsuit was filed and Plaintiff has not shown that the claim forms were actually received. (Doc. 37 & 43).
"[T]he United States may not be sued without its consent" and "the existence of consent is a prerequisite for jurisdiction." Jachetta v. United States, 653 F.3d 898, 903 (9th Cir. 2011) (quoting United States v. Mitchell, 463 U.S. 206, 212 (1983)). The FTCA grants the federal court jurisdiction to hear claims for certain torts allegedly caused by the negligent or wrongful act or omission of any federal employee acting within the scope of his office or employment. 28 U.S.C. § 1346(b). To fall within the waiver of sovereign immunity for state tort claims pursuant to the FTCA, the plaintiff must exhaust administrative remedies prior to filing suit, meaning that the plaintiff must first file an administrative claim with the appropriate federal agency. 28 U.S.C. § 2675(a). This requirement is a "threshold jurisdictional requirement" and failure to comply results in an absolute bar to suit in the federal district court. McNeil, 508 U.S. at 113 ("the FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies."); Johnson, 704 F.2d at 1442 ("Exhaustion of the claims procedures established under the [FTCA] is a prerequisite to district ...