J. G. v. United States of America et al, No. 3:2019cv00623 - Document 36 (N.D. Cal. 2019)
Court Description: ORDER GRANTING MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION; DISMISSING COMPLAINT. Signed by Judge Maxine M. Chesney on August 5, 2019. (mmclc2, COURT STAFF) (Filed on 8/5/2019)
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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 J. G., Case No. 19-cv-00623-MMC Plaintiff, 8 v. 9 United States District Court Northern District of California ORDER GRANTING MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION; DISMISSING COMPLAINT 10 UNITED STATES OF AMERICA, et al., 11 Defendants. Re: Dkt. No. 27 12 13 Before the Court is defendant United States’ Motion to Dismiss, filed May 22, 14 2019, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Plaintiff J.G. has 15 filed opposition, to which the United States has replied. Having read and considered the 16 papers filed in support of and in opposition to the motion, the Court rules as follows. 1 17 BACKGROUND 18 On March 25, 2016, J.G., “an eight-year-old female,” went to a dental clinic 19 operated by La Clinica De La Raza (“La Clinica”) “to obtain dental care and treatment.” 20 (See Compl. ¶¶ 5, 11.) According to J.G., while she was receiving treatment, she was 21 “sexually molested” by Alejandro Saro (“Saro”), a dental assistant employed by La 22 Clinica. (See id. ¶ 12.) J.G. alleges that, at some point in time after the above- 23 referenced appointment, she “informed her mother that Saro had sexually abused her 24 during the visit on . . . March 25, 2016,” and that “Saro had previously sexually abused 25 her on at least one earlier occasion” during another dental appointment that took place 26 “between approximately September 2015 and March 25, 2016.” (See id. ¶ 13.) 27 28 1 By order filed July 5, 2019, the Court took the motion under submission. 1 Based on the above, J.G. asserts a single claim of negligence against La Clinica 2 and the United States pursuant to the Federal Torts Claims Act (“FTCA”), 28 U.S.C. 3 § 1346(b); 28 U.S.C. §§ 2671-2680 (“First Claim for Relief”). Specifically, J.G. alleges, 4 La Clinica is an “agent and employee” of the United States (see Compl. ¶ 9), and that, 5 “[a]s a result of La Clinica’s negligent hiring, negligent retention and negligent supervision 6 of Saro, J.G. was placed in a position of being sexually . . . assaulted . . . by Saro while 7 she was a patient receiving dental treatment at La Clinica.” (See id. ¶ 31.) LEGAL STANDARD 8 United States District Court Northern District of California 9 A motion to dismiss for lack of subject matter jurisdiction, unlike a motion for failure 10 to state a claim under Rule 12(b)(6), “may be made as a speaking motion attacking the 11 existence of subject matter jurisdiction without converting the motion into a motion for 12 summary judgment.” See Trentacosta v. Frontier Pac. Aircraft Indus., 813 F.2d 1553, 13 1558 (9th Cir. 1987) (internal quotation and citation omitted). In analyzing a motion to 14 dismiss for lack of subject matter jurisdiction, the district court assumes as true the 15 factual allegations in the complaint, see Dreier v. United States, 106 F.3d 844, 847 (9th 16 Cir. 1997), other than factual allegations that bear on jurisdiction, to which “no 17 presumptive truthfulness attaches,” see Augustine v. United States, 704 F.2d 1074, 1077 18 (9th Cir. 1983) (internal quotation and citation omitted). With respect to jurisdictional 19 facts, the district court is “ordinarily free to hear evidence regarding jurisdiction and to rule 20 on that issue prior to trial, resolving factual disputes where necessary.” See id. DISCUSSION 21 22 As noted, J.G. asserts against the United States and La Clinica, pursuant to the 23 FTCA, a single claim of negligence, predicated on theories of negligent hiring, retention, 24 and supervision. 25 By the instant motion, the United States first moves for dismissal of La Clinica, 26 pursuant to 42 U.S.C. § 233. In support thereof, the United States has submitted 27 unchallenged evidence demonstrating: (1) during the relevant time period, La Clinica 28 was deemed an employee of the federal Public Health Service (“PHS”) pursuant to 42 2 United States District Court Northern District of California 1 U.S.C. § 233(g) (see Decl. of Frances M. Reico, Ex. B); and (2) the United States 2 Attorney has certified La Clinica “was acting within the scope of its deemed employment 3 as an employee of the PHS during the timeframe of events giving rise to the First Claim 4 for Relief in the Complaint” (see Certification ¶ 2). Under such circumstances, to the 5 extent the First Claim for Relief is asserted against La Clinica, said claim is barred by 42 6 U.S.C. §§ 233(a) and (g), and thus is subject to dismissal. See 42 U.S.C. § 233(a) 7 (providing “[t]he remedy against the United States provided by [FTCA]” for injuries 8 resulting from dental functions performed by PHS employees “acting within the scope of 9 their employment, shall be exclusive of any other civil action or proceeding by reason of 10 the same subject-matter against . . . the employee . . . whose act gave rise to the claim”); 11 see also id. § 233(g) (providing § 233(a) applies to entities deemed to be PHS 12 employees). 13 Next, the United States seeks an order dismissing the Complaint, as brought 14 against the United States, for lack of subject matter jurisdiction. In particular, the United 15 States contends the Complaint is subject to dismissal because the sole claim asserted 16 therein “is barred by the discretionary function exception to the FTCA.” (See Mot. at 17 5:19-20.) 18 The FTCA was “enacted to waive the Government’s sovereign immunity” under 19 limited circumstances. See Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193- 20 94 (1983). Specifically, under the FTCA, the United States may be sued for claims 21 alleging, inter alia, “personal injury or death caused by the negligent or wrongful act or 22 omission of any employee of the Government while acting within the scope of his office or 23 employment, under circumstances where the United States, if a private person, would be 24 liable to the claimant in accordance with the law of the place where the act or omission 25 occurred.” See 28 U.S.C. § 1346(b)(1); see also United States v. Orleans, 425 U.S. 807, 26 813 (1976) (referring to FTCA as “a limited waiver of sovereign immunity”). 27 28 The waiver set forth in the FTCA is, however, subject to exceptions, one of which being the “discretionary function exception.” See Berkovitz v. United States, 486 U.S. 3 1 531, 535-36 (1988). Under such exception, the FTCA does not apply to claims “based 2 upon the exercise or performance or the failure to exercise or perform a discretionary 3 function or duty on the part of a federal agency or employee of the Government, whether 4 or not the discretion involved be abused.” See 28 U.S.C. § 2680(a). 5 Where a claim falls within the discretionary function exception, “federal courts lack 6 subject matter jurisdiction to hear [the] claim,” see Nurse v. United States, 226 F.3d 996, 7 1000 (9th Cir. 2000), and, in determining whether the discretionary function exception 8 bars a claim, courts apply a “two-part test,” see Gonzalez v. United States, 814 F.3d 9 1022, 1027 (9th Cir. 2016). United States District Court Northern District of California 10 First, “a court must . . . consider whether the [challenged] action is a matter of 11 choice for the acting employee.” See Berkovitz, 486 U.S. at 536. “This inquiry is 12 mandated by the language of the exception; conduct cannot be discretionary unless it 13 involves an element of judgment or choice.” Id. Thus, where a “federal statute, 14 regulation, or policy specifically prescribes a course of action for an employee to follow, 15 . . . there is no discretion in the conduct for the discretionary function exception to 16 protect,” as “the employee has no rightful option but to adhere to the directive.” See id. 17 Second, “assuming the challenged conduct involves an element of judgment, a 18 court must determine whether that judgment is of the kind that the discretionary function 19 exception was designed to shield.” See id. “The focus of [the second step] is not on the 20 agent’s subjective intent in exercising [his or her] discretion . . . , but on the nature of the 21 actions taken and whether they are susceptible to policy analysis.” See United States v. 22 Gaubert, 499 U.S. 315, 325 (1991). 23 Although the United States bears the “ultimate burden of proving” the discretionary 24 function exception applies, “a plaintiff must advance a claim that is facially outside the 25 discretionary function exception in order to survive a motion to dismiss.” See Prescott v. 26 United States, 973 F.2d 696, 702 n. 4 (9th Cir. 1992). 27 Here, the United States contends J.G. has failed to “make out a claim that is 28 facially outside the discretionary function exception.” (See Mot. at 7:11-15 (internal 4 1 United States District Court Northern District of California 2 quotation and citation omitted).) For the reasons set forth below, the Court agrees. At the outset, the Court finds the allegations in the Complaint do not support J.G.’s 3 contention that “La Clinica did not have discretionary decision [sic] in how they trained 4 and supervised Saro” (see Opp. at 7:2-4). Specifically, as the United States points out, 5 J.G.’s allegations do not support a finding that, due to any federal statute, regulation, or 6 policy, La Clinica is required to follow a “specifically prescribe[d] course of action” in 7 making decisions with respect to the hiring, supervision, or retention of its employees. 8 See Berkovitz, 486 U.S. at 536; see also Lu v. Powell, 621 F.3d 944, 950 (9th Cir. 2010) 9 (affirming dismissal of negligent supervision claim based on supervisor’s failure to 10 discipline defendant for violating regulation, where “plaintiffs ha[d] not identified any 11 mandatory duty to discipline”). To the extent J.G. contends La Clinica lacked discretion 12 in making such decisions because “[t]he duties of a dental assistant are outlined in 13 California Business and Profession[s] Code, Section 1750.1” (see Opp. at 4:17-18), such 14 argument fails, as “[s]tate law cannot override the FTCA’s grant of immunity for 15 discretionary conduct.” See Carroll v. United States, 661 F.3d 87, 101 (1st Cir. 2011); 16 see also Sydnes v. United States, 523 F.3d 1179, 1184 (10th Cir. 2008) (holding “[t]o 17 overcome the discretionary function exception . . . , plaintiffs must show that the federal 18 employee’s discretion was limited by a federal statute, regulation, or policy,” as “states 19 can’t waive the federal government’s immunity” (emphasis in original) (internal quotation 20 and citation omitted)). 21 Next, the Court finds J.G.’s claim is predicated on employment decisions that are 22 “of the kind that the discretionary function exception was designed to shield,” see 23 Berkovitz, 486 U.S. at 536, as the Ninth Circuit “ha[s] held the hiring, supervision, and 24 training of employees to be discretionary acts” that involve “the type of discretionary 25 judgments [the discretionary function exception] was designed to protect,” see Doe v. 26 Holy See, 557 F.3d 1066, 1084 (9th Cir. 2009); see also Vickers v. United States, 228 27 F.3d 944, 950 (9th Cir. 2000) (noting Ninth Circuit “ha[s] held that decisions relating to the 28 hiring, training, and supervision of employees usually involve policy judgments of the type 5 1 2 Accordingly, the sole claim asserted in the Complaint is subject to dismissal for 3 lack of subject matter jurisdiction, as said claim falls within the discretionary function 4 exception to the FTCA. Further, because “the bar of sovereign immunity is absolute,” 5 and plaintiff has not explained in her Opposition how she would be able to “redraft [her] 6 claims to avoid the [discretionary function] exception[] to the FTCA,” see Frigard v. United 7 States, 862 F. 2d 201, 204 (9th Cir. 1988), the Court finds leave to amend would be futile. 8 CONCLUSION 9 For the reasons stated above, the United States’ Motion to Dismiss is hereby 10 11 United States District Court Northern District of California Congress intended the discretionary function exception to shield”). GRANTED and the Complaint is hereby DISMISSED. IT IS SO ORDERED. 12 13 Dated: August 5, 2019 MAXINE M. CHESNEY United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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