Michel v. United States Customs and Border Protection, et al., No. 3:2016cv00277 - Document 86 (S.D. Cal. 2017)

Court Description: ORDER Granting United States of America's 49 Motion for Summary Judgment and Denying Plaintiff's 52 Motion for Partial Summary Judgment. The Clerk of Court is directed to enter judgment accordingly. Signed by Judge Gonzalo P. Curiel on 10/31/17. (dlg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 DOYMA VANESSA MICHEL, an individual, 15 16 17 18 ORDER GRANTING DEFENDANT UNITED STATES OF AMERICA’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff, 13 14 Case No.: 16CV277-GPC(AGS) v. UNITED STATES OF AMERICA, B. GIBBONS, an individual, E. GARZA, an individual, G. GARCIA, an individual, SAFARILAND, LLC, a Delaware limited liability company, AND DOES 1 THROUGH 100, inclusive, [Dkt. Nos. 49, 52.] Defendants. 19 20 Before the Court are Defendant United States of America’s motion for summary 21 22 judgment filed on July 19, 2017 and Plaintiff Doyma Vanessa Michel’s motion for partial 23 summary judgment against the United States of America filed on July 24, 2017. (Dkt. 24 Nos. 49, 52.) Both parties filed their respective oppositions and replies. (Dkt. Nos. 59, 25 62, 68, 711) A hearing was held on September 8, 2017. (Dkt. No. 74.) Eugene Iredale, 26 27 1 28 On August 25, 2017, Plaintiff filed an ex parte application to file an oversized reply brief which the Court granted. (Dkt. Nos. 70, 72.) 1 16CV277-GPC(AGS) 1 Esq. and Grace Jun, Esq. appeared on behalf of Plaintiff, and Steve Chu, Esq. appeared 2 on behalf of the United States of America.2 (Dkt. No. 74.) After consideration of the 3 briefs, supporting documentation, the applicable law, and oral argument, the Court 4 GRANTS Defendant United States of America’s motion for summary judgment and 5 DENIES Plaintiff’s motion for partial summary judgment. 6 Procedural Background On February 2, 2016, Plaintiff Doyma Vanessa Michel (“Plaintiff” or “Michel”) 7 8 filed a complaint against Defendant United States of America (“Defendant” or 9 “Government”), three individual Government defendants, and Defendant Safariland, LLC 10 (“Safariland”) claiming she was wrongfully arrested and detained in jail for over six 11 months based on a “positive” test result for methamphetamine, generated by a field drug 12 test kit called Narco Pouch 923, manufactured by Safariland, on four bottles containing a 13 liquid substance found in Michel’s vehicle while crossing the San Ysidro Port of Entry, 14 which later confirmed by laboratory testing to be negative for methamphetamine. (Dkt. 15 No. 1.) A first amended complaint was filed. (Dkt. No. 6.) Pursuant to a joint motion by 16 the parties, Michel filed a second amended complaint (“SAC”). (Dkt. Nos. 20, 22.) On 17 August 2, 2016, Michel filed a notice of voluntary dismissal as to the individual 18 Government defendants, B. Gibbons, E. Garza and G. Garcia.3 (Dkt. No. 29.) 19 Michel alleges four causes of action against the Government. They are the fourth 20 cause of action for negligence; fifth cause of action for false imprisonment; sixth cause of 21 action for negligent infliction of emotional distress; and seventh cause of action for 22 intentional infliction of emotional distress. (Dkt. No. 22.) 23 24 25 26 27 28 2 At the hearing, Steven Smelser, Esq. appeared on behalf of Defendant Safariland, LLC. The Court also heard oral argument on Safariland, LLC’s and Michel’s motions for summary judgment. (Dkt. No. 74.) 3 The dismissal of the individual Government defendants disposes of the first three causes of action alleging violations of the U.S. Constitution under 42 U.S.C. § 1983. 2 16CV277-GPC(AGS) 1 On July 19, 2017, the Government moved for summary judgment on all causes of 2 actions against it. (Dkt. No. 49.) On July 24, 2017, Michel filed a motion for partial 3 summary judgment on three causes of action for negligence, false imprisonment, and 4 intentional infliction of emotional distress. (Dkt. No. 52.) 5 6 Factual Background A. San Ysidro Port of Entry Detention On June 2, 2014, Customs and Border Protection (“CBP”) Officer Eduardo Garza 7 8 (“Officer Garza”) was on duty at the San Ysidro Port of Entry. (Dkt. No. 62-1, P’s 9 Response to D’s SSUMF, No. 1.) Officer Garza was a member of the Antiterrorism 10 Contraband Enforcement Team. (Id.) Officer Garza was conducting a pre-primary 11 roving inspection which involved random checks of vehicles that were entering the 12 United States from Mexico looking for narcotics or contraband. (Id.; Dkt. No. 49-2, D’s 13 Index of Exs., Ex. A, Garza Depo. at 15:2-224.) Officer Garza noticed a black 2001 Audi 14 waiting in a vehicle line and observed the driver, Michel, avoiding eye contact. (Dkt. No. 15 62-1, P’s Response to D’s SSUMF, No. 2; Dkt. No. 49-2, D’s Index of Exs., Ex. B, 16 Garza’s Incident Report.) Officer Garza looked inside the vehicle and noticed that there 17 were loose car seat covers and began asking questions of Michel who said she was going 18 to do a smog check. (Dkt. No. 62-1, P’s Response to D’s SSUMF, No. 2; Dkt. No. 49-2, 19 D’s Index of Exs., Ex. B, Garza’s Incident Report.) While Officer Garza spoke with 20 Michel, another CBP officer stood in front of the vehicle on the passenger side, and a 21 third CPB officer searched the inside of the car on the passenger side by the dashboard. 22 (Dkt. No. 49-2, D’s Index of Exs., Ex. A, Garza Depo. at 17:21-25; 18:20-23; 19:17-21.) 23 When Officer Garza asked Michel for her passport, she presented a valid U.S. 24 passport. (Dkt. No. 59-1, Ds’ Response to P’s SSUMF, No. 3; Dkt. No. 49-2, D’s Index 25 of Exs., Ex. B, Garza Incident Report.) Officer Garza stood approximately two feet away 26 27 28 4 Deposition pages numbers are based on the pagination of the deposition transcript. 3 16CV277-GPC(AGS) 1 and noticed that Plaintiff’s hands were shaking as he stood there, and her left jugular vein 2 was pulsing. (Dkt. No. 62-1, P’s Response to D’s SSUMF, No. 3; Dkt. No. 49-2, D’s 3 Index of Exs., Ex. A, Garza Depo. at 21:3-16.) The other CBP officer on the other side 4 of the car signaled to Officer Garza to go come over and they discovered a bottle inside a 5 sock, “in the glove box behind the glove in front of the firewall.” (Dkt. No. 62-1, P’s 6 Response to D’s SSUMF, No. 3; Dkt. No. 49-2, D’s Index of Exs., Ex. A, Garza Depo. at 7 21:20-22:13.) The bottle inside the black sock contained a brown substance. (Dkt. No. 8 62-1, P’s Response to D’s SSUMF, No. 3; Dkt. No. 49-2, D’s Index of Exs., Ex. A, 9 Garza Depo. at 22:17-20.) Officer Garza asked Michel what was in the sock, and she 10 turned and said she did not know. (Dkt. No. 62-1, P’s Response to D’s SSUMF, No. 4; 11 Dkt. No. 49-2, D’s Index of Exs., Ex. A, Garza Depo. at 23:24-24:4; Dkt. No. 49-2, D’s 12 Index of Exs., Ex. B, Garza Incident Report.) Officer Garza had previously encountered 13 liquid methamphetamine on a prior occasion and recalled that liquid methamphetamine 14 had a similar brownish haze color. (Dkt. No. 62-1, P’s Response to D’s SSUMF, No. 4; 15 Dkt. No. 49-2, D’s Index of Exs., Ex. A, Garza Depo. at 43:2-19.) The appearance of the 16 substance, coupled with the fact that it had been concealed in the car, made Officer Garza 17 suspect that the substance could be liquid methamphetamine. (Dkt. No. 62-1, P’s 18 Response to D’s SSUMF, No. 4; Dkt. No. 49-2, D’s Index of Exs., Ex. A, Garza Depo. at 19 43:2-19.) Officer Garza then escorted Michel to the vehicle secondary line in order to do 20 a more intensive search of the vehicle. (Dkt. No. 62-1, P’s Response to D’s SSUMF, No. 21 4; Dkt. No. 49-2, D’s Index of Exs., Ex. A, Garza Depo. at 25:3-10; id., Ex. B, Garza 22 Incident Report.) 23 As the car was being escorted to vehicle secondary, Michel then said that the liquid 24 in the bottle contained something used to make cheese. (Dkt. No. 62-1, P’s Response to 25 D’s SSUMF, No. 5; Dkt. No. 49-2, D’s Index of Exs., Ex. A, Garza Depo. at 27:2-6; id., 26 Ex. B, Garza Incident Report.) Officer Garza asked Michel why she would put a bottle in 27 the dash above the glove box in a sock if it was simply to make cheese and she had no 28 answer. (Dkt. No. 62-1, P’s Response to D’s SSUMF, No. 5; Dkt. No. 49-2, D’s Index of 4 16CV277-GPC(AGS) 1 Exs., Ex. A, Garza Depo. at 27:7-10; id., Ex. B, Garza Incident Report.) Once arriving 2 at vehicle secondary, Officer Garza obtained a field drug test kit, the NarcoPouch 9235, 3 and it tested positive. (Dkt. No. 62-1, P’s Response to D’s SSUMF, Nos. 5, 8; Dkt. No. 4 49-2, D’s Index of Exs., Ex. A, Garza Depo. at 28:1-5; id., Ex. B, Garza Incident Report; 5 Dkt. No. 52-6, P’s Index of Exs., Ex. 2, Garza Depo. at 30:18-31:1.) Officer Garza 6 believed the substance in the bottle was methamphetamine as he had been taught that a 7 positive reaction from the field test kit meant the substance was methamphetamine. (Dkt. 8 No. 49-2, D’s Index of Exs., Ex. A, Garza Depo. at 34:22-35:8.) 9 NarcoPouch 923 is a presumptive test that produces a color change based on the 10 presence of a secondary amine, some of which may be illegal substances and others 11 which are not illegal. (Dkt. No. 59-1, D’s Response to P’s SSMUF, Nos. 109, 111, 112.) 12 A presumptive test is neither definitive or certain. (Id., No. 110.) One secondary amine 13 is methamphetamine. (Id., No. 113.) There are other secondary amines that give the 14 same result, such as diphendyramine, a major ingredient in Dramamine, and produce the 15 same color change as methamphetamine on the NarcoPouch 923. (Id., Nos. 120, 121.) 16 The NarcoPouch 923 tests for the presence of any secondary amine, and does not 17 specifically test for the presence of methamphetamine. (Id., No. 114.) 18 A presumptive test is only a field test, and the content of the substance must still be 19 confirmed by testing at the Drug Enforcement Agency (“DEA”) lab. (Dkt. No. 62-1, P’s 20 Response to D’s SSUMF, No. 6.) Because a field test is only considered a presumptive 21 test, pursuant to DEA procedures, the DEA will only testify at trial about a substance 22 after a confirmatory lab test is also performed. (Id., No. 7.) 23 Given the positive reaction, Officer Garza took Michel into custody. (Dkt. No. 62- 24 1, P’s Response to D’s SSUMF, No. 8; Dkt. No. 49-2, D’s Index of Exs., Ex. A, Garza 25 Depo. at 28:1-5; id., Ex. B, Garza Incident Report.) Officer Garza placed Michel in 26 27 5 28 Officer Garza testified that the field drug test he used looked similar to the box of the NarcoPouch 923. (Dkt. No. 52-6, P’s Index of Exs., Ex. 2, Garza Depo. at 30:18-31:1.) 5 16CV277-GPC(AGS) 1 handcuffs and escorted her to the security office. (Dkt. No. 62-1, P’s Response to D’s 2 SSUMF, No. 8; Dkt. No. 49-2, D’s Index of Exs., Ex. A, Garza Depo. at 35:9-13; id., Ex. 3 B, Garza Incident Report.) Officer Garza then turned the case over to another CBP 4 officer. (Dkt. No. 62-1, P’s Response to D’s SSUMF, No. 8; Dkt. No. 49-2, D’s Index 5 of Exs., Ex. A, Garza Depo. at 36:4-7; id., Ex. B, Garza Incident Report.) 6 CBP Officer Brandon Gibbons (“Officer Gibbons”) conducted a search of 7 Plaintiff’s car and discovered five bottles of alcohol that were concealed throughout the 8 vehicle and three additional bottles of the yellowish substance in a plastic container found 9 deep inside the dashboard. (Dkt. No. 49-2, D’s Index of Exs., Ex. C, Gibbons Depo. at 10 12:20-13:7;Dkt. No. 62-1, P’s Response to D’s SSUMF, No. 8; Dkt. No. 49-2, D’s Index 11 of Exs., Ex. A, Garza Depo. at 48:3-9.) Officer Gibbons tested all four bottles of the 12 brown6 substance using the a field drug test kit, NarcoPouch 923, and all four bottles 13 turned into a dark blue color indicating a positive result. (Dkt. No. 62-1, P’s Response to 14 D’s SSUMF, No. 9; Dkt. No. 49-2, D’s Index of Exs., Ex. D, Gibbons Incident Report; 15 Dkt. No. 52-7, P’s Index of Exs., Ex. 3, Gibbons Depo. at 18:11-12.) Due to the positive 16 test results, Officer Gibbons placed Michel under arrest. (Dkt. No. 62-1, P’s Response to 17 D’s SSUMF, No. 9.) 18 B. Arrest and Criminal Complaint Immigration and Customs Enforcement (“ICE”) was then notified so that an agent 19 20 could be sent to question Plaintiff. (Id.) Homeland Security Investigation (“HIS”) 21 Special Agent Zachary Bulman (“Agent Bulman”) arrived and Michel voluntarily gave a 22 statement. (Id.; Dkt. No. 49-2, D’s Index of Exs., Ex. E, Bulman Depo. at 7:10-14.) She 23 24 25 26 27 28 6 At his deposition and on his Incident Report, Officer Gibbons described the substance in the four bottles as yellowish in color while Officer Garza described the substance as brown in color. (Compare Dkt. No. 49-2, D’s Index of Exs., Ex. C, Gibbons Depo. at 12:20-13:7; id., Ex. D, Gibbons Incident Report with Dkt. No. 49-2, D’s Index of Exs., Ex. B, Garza Incident Report; id., Ex. A, Garza Depo. at 22:17-20.) 6 16CV277-GPC(AGS) 1 explained that the plastic bottle contained cuajo7, a substance used to manufacture cheese, 2 and that she planned to take the cuajo to a man in San Bernardino. (Dkt. No. 49-2, D’s 3 Index of Exs., Ex. E, Bulman Depo. at 47:14-48:1.) She continued to tell Agent Bulman 4 that it was not methamphetamine and it was cuajo. (Id. at 54:17-19.) He responded that 5 she was lying and he did not believe her. (Dkt. No. 52-8, P’s Index of Exs., Ex. 4, 6 Bulman Depo. at 69:2-7.) She said that the bottle still needed to be examined by a lab 7 and Agent Bulman agreed. (Dkt. No. 52-8, P’s Index of Exs., Ex. 4, Bulman Depo. at 8 55:3-5.) After the interview, on June 2, 2014, Agent Bulman prepared a criminal 9 complaint, and transported Michel to the Metropolitan Correctional Center (“MCC”) in 10 San Diego. (Dkt. No. 49-2, D’s Index of Exs., Ex. E, Bulman Depo. at 16:13-20.) On June 3, 2014, with Michel’s consent, Agent Bulman searched her storage unit 11 12 in Chula Vista. (Dkt. No. 49-2, D’s Index of Exs., Ex. E, Bulman Depo. at 43:18-22.) 13 During the search of the storage unit, 36 bottles of Tequila were found as well as 15 more 14 bottles of the cuajo, similar to what Michel had in her car, were found. (Id. at 56:4-17.) 15 Three bottles were field tested at random and resulted in a positive reaction. (Id. at 50:7- 16 25.) 17 Meanwhile, a criminal complaint was filed against Michel on June 3, 2014 for one 18 count of knowingly and intentionally importing approximately 4.45 kilograms of 19 methamphetamine, a schedule II controlled substance in violation of 21 U.S.C. §§ 952, 20 960. (United States v. Doyma Vanessa Michel, Case No. 14cr1864-DMS, Dkt. No. 1.) 21 The probable cause statement, incorporated by reference in the criminal complaint, 22 stated, 23 On June 2, 2014, at approximately 2:10 p.m., Doyma Vanessa MICHEL applied for admission into the United States from Mexico through the San Ysidro, California Port of Entry (POE) as the driver and sole occupant of a Black 2001 Audi A4 bearing California license plate 4UBZ197. A Customs 24 25 26 27 28 7 Officer Garza testified that after research, he learned that cuajo is a type of enzyme used to make cheese. (Dkt. No. 49-2, D’s Index of Exs., Ex. A, Garza Depo. at 23:9-16.) 7 16CV277-GPC(AGS) 1 and Border Protection Officer (CBPO) was conducting roving pre-primary inspection operations when he encountered MICHEL in her Audi. MICHEL presented her valid U.S. Passport for entry into the U.S. During an inspection of the vehicle, the CBPO noticed a bottle within a sock concealed within the dashboard above the glove compartment. A subsequent field test of the liquid within the bottle resulted in a positive reaction for the properties of methamphetamine. 2 3 4 5 6 At approximately 4:20 p.m., a CBPO was assigned to conduct a detailed inspection of MICHEL's Audi. A total of four (4) bottles weighing approximately 4.45 kilograms were found within the vehicle. Field tests were conducted on the contents of of (sic) all four bottles resulting in four positive reactions for the properties of methamphetamine. MICHEL was arrested for violation of Title 21 USC 952, 960, Importation of a Controlled Substance. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (United States v. Michel, Case No. 14cr1864-DMS, Dkt. No. 1 at 2.) On that same day, Michel was brought before Magistrate Judge Jill L. Burkhardt for her initial appearance. (Id., Dkt. No. 3.) C. Testing by DEA Laboratory Alexandra Ambriz (“Ambriz”), a senior forensic chemist at the DEA, went to the CBP vault on June 9, 2014 to take representative samples of the liquid substance. (Dkt. No. 62-1, P’s Response to D’s SSUMF, No. 13; Dkt. No. 59-1, D’s Response to P’s SSUMF, No. 76.) At the CBP evidence vault, Ambriz conducted a field test using NarcoPouch 923 which turned out positive. (Dkt. No. 59-1, Ds’ Response to P’s SSUMF, Nos. 60, 75.) The DEA laboratory received the bottles found in Michel’s car on July 3, 2014. (Dkt. No. 62-1, P’s Response to D’s SSUMF, No. 13; Dkt. No. 59-1, D’s Response to P’s SSUMF, No. 91.) On August 18, 2014, Ambriz received the liquid bottles for analysis and had been assigned to conduct the lab testing a few days before. (Dkt. No. 59-1, D’s Response to P’s SSUMF, No. 92.) On September 10, 2010 she conducted the gas chromatography mass spectrometry (“GC/MS”) test, which is the most common instrument for analysis used in the DEA laboratory and one of the most accurate. (Id., No. 93.) The GC/MS testing on each of 8 16CV277-GPC(AGS) 1 the samples showed no presence of a controlled substance. (Id., Nos. 94, 95.) She then 2 conducted additional GCFID8 analysis after the GC/MS testing to make sure there were 3 no other controlled substance in the samples that she could have missed. (Id., No. 96.) 4 By September 29, 2014, Ambriz completed all GC/MS and GCFID testing and concluded 5 with 95% confidence that there was no controlled substance in the samples. (Id., No. 97.) 6 According to protocol, Ambriz then submits her report to her supervisor who 7 reviews it for approval. (Dkt. No. 49-2, D’s Index of Exs., Ex. H, Ambriz Depo. at 8 134:16-23.) She testified that the average time to submit a report to her supervisor after 9 lab testing is complete is about a week. (Id. at 135:12-136:6.) However, in this case, she 10 did not get her report to her supervisor until November 21, 2014. (Id. at 135:6-8.) She 11 explained that during this time that she had other rushes, attended a training, and testified 12 in court. (Id. at 135:16-25.) Her supervisor approved her report a week later on Friday, 13 November 28, 2014. (Id. at 135:9-11.) Once the report gets approved, the program 14 assistant sends out the lab report to the agency. (Id. at 134:19-23.) 15 Ambriz is a senior forensic chemic at the DEA and her primary job duties include 16 analyzing evidence for the presence or absence of controlled substances, writing reports 17 on the analyses and testifying in court. (Dkt. No. 59-1, D’s Response to P’s SSUMF, No. 18 76.) She was trained for six months at the DEA laboratory in Chicago, Illinois and then 19 received an additional one month training in Quantico, VA. (Id., No. 77.) She knew a 20 presumptive test would not establish, to a degree of scientific certainty, the identity of the 21 liquid being identified. (Id., No. 78.) She was taught that a field test or a presumptive 22 test is not a confirmatory or definitive test. (Id., No. 82.) 23 Ambriz had been taught and trained that a person charged with a crime involving 24 controlled substances requires that the substance is, in fact, illegal to possess or distribute. 25 (Dkt. No. 59-1, D’s Response to P’s SSMUF, Nos. 98, 99.) If it was proven that the 26 27 28 8 Neither party has explained this acronym and test. 9 16CV277-GPC(AGS) 1 suspected substance was not a controlled substance, then the person cannot be guilty of 2 having committed the crime. (Id., No. 99.) When Ambriz found that the liquid substance 3 from Michel’s car and storage unit contained no methamphetamine, she did not alert 4 Agent Bulman, her supervisor or any laboratory official. (Dkt. No. 52-9, P’s Index of 5 Ex., Ex. 5, Ambriz Depo. at 129:13-130:8.) 6 The DEA regional lab in Vista provides drug lab testing support for multiple states 7 and multiple offices. (Dkt. No. 62-1, P’s Response to D’s SSUMF, No. 14.) During the 8 year of 2014, although the lab had positions for 33 chemists, the lab had only 25 chemists 9 on board and there was also a supervisor vacancy and administrative vacancies. (Id.; No. 10 15.) The shortage was due to a federal hiring freeze that had been in place for several 11 years. During the year of 2014, the processing time for the Southwest Region DEA lab to 12 test a non-rushed exhibit was between six to nine months due to a high volume of work 13 and very limited resources. (Id., No. 15.) This severely affected the laboratory’s 14 operations and the ability of the lab to test drug exhibits. (Id.) As an example, staffing 15 was short to the point where chemists had to do additional tasks that would ordinarily be 16 performed by support staff such as washing their own dishes, and restocking their own 17 supplies. (Dkt. No. 49-2, D’s Index of Exs., Ex. G, Malone Depo. at 57:4-21.) 18 Moreover, the volume of incoming drug exhibits increased in 2013 and 2014 19 resulting in a backlog of 5400 drug exhibits in 2014. (Id. at 58:20-59:12.) Due to the 20 backlog and shortage of resources, the lab devised a procedure with submitting federal 21 officers, including the U.S. Attorney’s office, to ensure that lab results were completed as 22 required. Therefore, cases that had a pending court date would be given first priority and 23 could be rushed and those without a court date would not be rushed. (Id. at 59:13-60:5.) 24 On average, an unrushed lab result would be completed between six to nine months while 25 a rushed case would be a two to three month wait. (Id. at 60:6-17.) 26 Ambriz has received requests to do rush analyses. (Dkt. No. 59-1, D’s Response to 27 P’s SSMUF, No. 84.) The “Rush Analysis Request Form” is a standard form used to 28 request the rush of the lab analysis which Ambriz has seen hundreds of times. (Id., Nos. 10 16CV277-GPC(AGS) 1 85, 86.) She testified she is not aware of any policy that would have forbidden her from 2 notifying the case agent that the results showed there was no controlled substance in the 3 substance being tested. (Id. at 136:16-21.) She testified she would have accommodated 4 Agent Bulman’s request for a rush analysis, if he made one, and tries to accommodate all 5 agents’ rush requests. (Dkt. No. 59-1, D’s Response to P’s SSMUF, No. 90.) On September 22, 2014, Assistant U.S. Attorney (“AUSA”) Julia Cline sent an 6 7 email to Agent Bulman requesting that he rush the lab results. (Dkt. No. 52-17, P’s Index 8 of Exs., Ex. 13 at 5-69.) Then on September 27, 2014, AUSA Matthew Sutton emailed 9 Agent Bulman asking him to check with the DEA lab on their analysis. (Id. at 3.) While 10 Agent Bulman responded to other requests made by the AUSAs in the email, he did not 11 respond to either ASUA’s rush request or inquiry into the lab testing. Agent Bulman 12 explained that despite AUSA Julia Cline’s request for a rush request, he did not make a 13 request to rush the testing with the DEA lab because he understood that the lab requires a 14 trial date or plea agreement date in order to make a request to rush the testing or under 15 extenuating circumstances where the AUSA, directly, or a judge is making the request for 16 a rush. (Dkt. No. 49-2, D’s Index of Exs., Ex. E, Bulman Depo. at 99:7-100:13.) 17 Agent Bulman received the test results electronically on the afternoon of December 18 2, 2014, but was at the shooting range and had no opportunity to view the results until the 19 next day on December 3, 2014. (Dkt. No. 49-2, D’s Index of Exs., Ex. E, Bulman Depo. 20 at 91:13-92:7.) On Wednesday, December 3, 2014, Agent Bulman first learned that the 21 DEA lab test results were negative, and informed the AUSA assigned to the matter. (Id. 22 at 97:16-25.) On December 4, 2015, the AUSA moved to dismiss the information. (Case 23 No. 14cr1864-DMS, Dkt. No. 28.) On December 8, 2014, the Court granted the 24 Government’s motion to dismiss the information. (Id., Dkt. No. 29.) Michel was 25 released on December 9, 2014. (Id., Dkt. No. 31.) 26 27 28 9 Except for deposition transcripts, pages numbers to documents are based on the CM/ECF pagination. 11 16CV277-GPC(AGS) 1 Michel filed this case on February 2, 2016. (Dkt. No. 1.) Michel seeks to proceed 2 against the United States under tort theories of liability for (1) negligence (2) false 3 imprisonment, (3) negligent infliction of emotional distress, and (4) intentional infliction 4 of emotional distress. 5 6 Discussion A. Request for Judicial Notice Plaintiff requests judicial notice of the Court’s docket entries in the criminal case 7 8 of United States of America v. Doyma Michel, Southern District of California, Case No. 9 14CR1864-DMS. (Dkt. No. 52-3.) No party has objected to the request for judicial 10 notice. Facts proper for judicial notice are those not subject to reasonable dispute and 11 either “generally known” in the community or “capable of accurate and ready 12 determination” by reference to sources whose accuracy cannot be reasonably questioned. 13 Fed. R. Evid. 201. Here, the criminal docket in the court records are proper documents 14 subject to judicial. See United States v. Howard, 381 F.3d 873, 876 n. 1 (9th Cir. 2004) 15 (taking judicial notice of court records in underlying criminal case). Thus, the Court 16 GRANTS Plaintiff’s request for judicial notice of the Court’s docket entries in Case No. 17 14CR1864-DMS. 18 B. 19 Legal Standard on Motion for Summary Judgment Federal Rule of Civil Procedure 56 empowers the Court to enter summary 20 judgment on factually unsupported claims or defenses, and thereby “secure the just, 21 speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 22 U.S. 317, 325, 327 (1986). Summary judgment is appropriate if the “pleadings, 23 depositions, answers to interrogatories, and admissions on file, together with the 24 affidavits, if any, show that there is no genuine issue as to any material fact and that the 25 moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A fact is 26 material when it affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 27 U.S. 242, 248 (1986). 28 12 16CV277-GPC(AGS) 1 The moving party bears the initial burden of demonstrating the absence of any 2 genuine issues of material fact. Celotex Corp., 477 U.S. at 323. The moving party can 3 satisfy this burden by demonstrating that the nonmoving party failed to make a showing 4 sufficient to establish an element of his or her claim on which that party will bear the 5 burden of proof at trial. Id. at 322-23. If the moving party fails to bear the initial burden, 6 summary judgment must be denied and the court need not consider the nonmoving 7 party’s evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970). 8 Once the moving party has satisfied this burden, the nonmoving party cannot rest 9 on the mere allegations or denials of his pleading, but must “go beyond the pleadings and 10 by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions 11 on file’ designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 12 477 U.S. at 324. If the non-moving party fails to make a sufficient showing of an 13 element of its case, the moving party is entitled to judgment as a matter of law. Id. at 14 325. “Where the record taken as a whole could not lead a rational trier of fact to find for 15 the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. 16 Zenith Radio Corp., 475 U.S. 574, 587 (1986). In making this determination, the court 17 must “view[] the evidence in the light most favorable to the nonmoving party.” Fontana 18 v. Haskin, 262 F.3d 871, 876 (9th Cir. 2001). The Court does not engage in credibility 19 determinations, weighing of evidence, or drawing of legitimate inferences from the facts; 20 these functions are for the trier of fact. Anderson, 477 U.S. at 255. 21 C. 22 23 Federal Tort Claims Act Michel alleges four California state tort claims against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. 24 Under the FTCA, the United States is liable for common law torts committed by 25 federal employees within the scope of their federal employment. 28 U.S.C. § 1346(b); 26 § 2674; Nurse v. United States, 226 F.3d 996, 1000 (9th Cir. 2000) (“The FTCA provides 27 a limited waiver of the sovereign immunity of the United States for torts committed by 28 federal employees acting within the scope of their employment.”). Liability is 13 16CV277-GPC(AGS) 1 determined “in accordance with the law of the place where the [allegedly tortious] act or 2 omission occurred.” 28 U.S.C. § 1346(b); Avina v. United States, 681 F.2d 1127, 1130 3 (9th Cir. 2012). The parties agree that the alleged tortious acts occurred in California; 4 therefore, California law applies. 5 D. False Imprisonment 6 Defendant seeks summary judgment on the false imprisonment claim arguing that 7 the search of Plaintiff’s vehicle and her arrest and detention were reasonable and proper, 8 and supported by probable cause.10 Michel seeks summary judgment on this claim 9 arguing that no probable cause to detain her ever existed; that there was never a 10 legitimate judicial determination of probable cause; and that state law immunities for law 11 enforcement officers do not apply. 12 The FTCA allows liability for false arrest or false imprisonment when they are 13 committed by federal law enforcement officers. 28 U.S.C. § 2680(h); Collins v. City & 14 Cnty. of San Francisco, 50 Cal. App. 3d 671, 674 (1975) (stating that false arrest is “but 15 one way of committing a false imprisonment, and they are distinguishable only in 16 terminology”). Both parties11 agree that in California, the “elements of a tortious claim of false 17 18 imprisonment are: (1) the nonconsensual, intentional confinement of a person, (2) 19 without lawful privilege, and (3) for an appreciable period of time, however brief.” Tekle 20 v. United States, 511 F.3d 839, 854 (9th Cir. 2007) (citing Easton v. Sutter Coast Hosp., 21 80 Cal. App. 4th 485, 495 (2000)); see also Fermino v. Fedco., Inc., 7 Cal. 4th 701, 715 22 (1994) (merchant’s arrest). 23 24 25 26 27 28 10 In its reply, the Government raises for the first time that the false imprisonment cause of action is barred by the discretionary function exception to the FTCA. (Dkt. No. 68 at 8.) The Court declines to address an argument raised for the first time in its reply. See State of Nev. v. Watkins, 914 F.2d 1545, 1560 (9th Cir.1990) (“[Parties] cannot raise a new issue for the first time in their reply briefs.”); Ass’n of Irritated Residents v. C & R Vanderham Dairy, 435 F. Supp. 2d 1078, 1089 (E.D. Cal. 2006) (“It is inappropriate to consider arguments raised for the first time in a reply brief.”). 11 (See Dkt. No. 52-1 at 19 and Dkt. No. 68 at 11.) 14 16CV277-GPC(AGS) 1 California Penal Code Section 847(b) protects a law enforcement officer from 2 liability for false arrest when an officer, acting within the scope of his or her authority 3 either effects a lawful arrest or has “reasonable cause to believe the arrest was lawful.” 4 Cal. Penal Code § 847(b). In other words, if there was probable cause to arrest Michel, 5 there can be no liability for false arrest. See Pierson v. Ray, 386 U.S. 547, 555 (1967) (a 6 California peace officer may arrest an individual without a warrant if the “officer as 7 probable cause to believe that the person to be arrested has committed a felony, whether 8 or not a felony, in fact, has been committed.”). 9 Meanwhile, in California, a private individual has lawful privilege to effectuate a 10 citizen’s arrest if there is probable cause to detain. Fermino v. Fedco., Inc., 7 Cal. 4th 11 701, 715 (1994) (“Merchants who detain individuals whom they have probable cause to 12 believe are about to injure their property are privileged against a false imprisonment 13 action.”); Johnson v. United States, Case No. 13cv2405-JD, 2016 WL 4488180, at *8 14 (N.D. Cal. Aug. 26, 2016) (applying private person standard to false arrest claim against 15 federal officer under the FTCA stating that “a federal officer – like a private person – has 16 lawful privilege to “arrest someone for a misdemeanor when the offense actually has 17 been committed or attempted in his presence.”). 18 1. Probable Cause to Arrest Michel 19 The United States Supreme Court has described probable cause as a “flexible, 20 common-sense standard. It merely requires that the facts available to the officer would 21 ‘warrant a man of reasonable caution in the belief.’” Texas v. Brown, 460 U.S. 730, 742 22 (1983). The belief that certain items may be contraband need not be correct or even more 23 likely true than false. Id. All probable cause requires is “[a] ‘practical, nontechnical’ 24 probability that incriminating evidence is involved is all that is required.” Id. (citation 25 omitted). “The substance of all the definitions of probable cause is a reasonable ground 26 for belief of guilt.” Id. A subsequent acquittal has no bearing on whether there was 27 probable cause to arrest. Krause v. Bennett, 887 F.2d 362, 370 (2d Cir. 1989) (probable 28 cause determined at time of arrest based on facts available to the officer). 15 16CV277-GPC(AGS) 1 Here, Officer Gibbons, the arresting officer, believed that Michel had committed a 2 felony, a violation of 21 U.S.C. §§ 952, 960. Michel challenges her false imprisonment 3 of more than six months arguing there was no probable cause during that period because 4 she did not actually possess methamphetamine. (Dkt. No. 62 at 3, 7; Dkt. No. 52-1 at 5 19.) She argues she was detained and brought before a magistrate judge based solely on 6 the results of the NarcoPouch 923, and a positive drug field test, by itself, does not 7 constitute probable cause to arrest an individual. 8 9 When Officer Garza approached Michel in her vehicle, he noticed that she was avoiding eye contact and was visibly nervous. Her hands were shaking and he could see 10 her left jugular vein pulsing. He and another CBP officer also discovered a brownish 11 substance in a plastic bottle hidden in a black sock and the sock was “in the glove box 12 behind the glove in front of the firewall.” (Dkt. No. 62-1, P’s Response to D’s SSUMF, 13 No. 3.) Once at secondary, Officer Gibbons then searched Michel’s vehicle where he 14 found three additional bottles of the substance hidden deep inside the dashboard along 15 with five bottles of alcohol. The brownish substance in all four bottles were tested and 16 they all came out presumptively positive for methamphetamine. These facts support a 17 reasonable basis for an officer to believe that Michel was transporting controlled 18 substance across the border. 19 At the hearing on the summary judgment motions, Plaintiff argued that Officer 20 Gibbons improperly relied solely on the positive results of the NarcoPouch 923 test to 21 arrest Michel and did not have specific personal knowledge of facts to support probable 22 cause. The Ninth Circuit has held that probable cause can be established by the 23 “collective knowledge” of the law enforcement officers involved in an investigation. 24 United States v. Jensen, 425 F.3d 698, 704-05 (9th Cir. 2005). Therefore, an arresting 25 officer need not have personal knowledge of all the facts known to the other officers 26 involved in the arrest and can rely on the knowledge of these other officers involved in 27 the investigation. Id. at 705 (quoting United States v. Bernard, 623 F.2d 551, 560-61 (9th 28 Cir. 1980) (“In effect all of them participated in the decision to make the arrests . . .[One 16 16CV277-GPC(AGS) 1 officer] was entitled to rely on the observations and knowledge of [the others], even 2 though some of the critical information had not been communicated to him.”). In other 3 words, “probable cause may be based on the collective knowledge of all the officers 4 involved in the investigation and all of the reasonable inferences that may be drawn 5 therefrom.” Id. (citation omitted). Therefore, the arrest by Officer Gibbons and the 6 subsequent interrogation of Michel conducted by Agent Bulman were supported by 7 probable cause. Michel was promptly brought before the Magistrate Judge the next day 8 on June 3, 2014. 9 10 2. Judicial Determination of Probable Cause to Arrest Michel next argues that there was no legitimate judicial determination of probable 11 cause to detain her pending trial. She claims that her lengthy pretrial detention was 12 unlawful and without probable cause because it was based on false evidence. While 13 Plaintiff concedes that she was brought promptly before the Magistrate Judge, she 14 contends the Magistrate Judge’s determination of probable cause to detain her was 15 defective because it was based on false evidence. It was based on the positive results of 16 the NarcoPouch 923 tests which did not demonstrate the substance was 17 methamphetamine but merely indicated the presence of a secondary amine. Therefore, 18 the Magistrate Judge’s order detaining Michel prior to trial “lacked any proper basis.” 19 The Government opposes contending that Agent Bulman’s statement was truthful and 20 established probable cause. 21 Here, the probable cause statement relied on more than just the positive results 22 from the field drug test. (United States v. Michel, Case No. 14cr1864, Dkt. No. 1 at 2.) 23 The probable cause statement also explained that the CBP Officer “noticed a bottle 24 within a sock concealed within the dashboard above the glove compartment.” (Id.) 25 Moreover, Agent Bulman’s statement truthfully stated that the field test resulted in a 26 “positive reaction for the properties of methamphetamine.” (Id.) 27 28 Plaintiff cites to the Supreme Court case of Manuel v. City of Joliet, 137 S. Ct. 911 (2017) as being factually similar. However, in that case, the lab technicians lied in his 17 16CV277-GPC(AGS) 1 report and falsely stated there was a positive result for controlled substances which the 2 Magistrate Judge relied on in deciding probable cause. Here, Agent Bulman did not 3 provide false information in the probable statement but presented truthful facts he 4 received from Officers Garza and Gibbons from the results of the drug field test and 5 accurately wrote that the tests came back “positive for properties of methamphetamine.” 6 (See Dkt. No. 50-4, Smelser Decl., Ex. A, Bulman Inv. Report at 10 (“Special Agent . . 7 Zachary Bulman . . . was advised of the seizures and of MICHEL’s arrest.”); United 8 States v. Michel, Case No. 14cr1864, Dkt. No. 1 at 2.) 9 Even if the arrest and subsequent arraignment were based solely on the positive 10 field drug test, courts have held that a positive field test, by itself, constitutes probable 11 cause. See Pennington v. Hobson, 719 F .Supp. 760, 767-69 (S.D. Ind. 1989) (probable 12 cause to arrest existed where field test indicated powder was cocaine even though 13 subsequent laboratory test identified powder as aspirin and record contained no evidence 14 defendants were disingenuous in performing field test); Herron v. Lew Sterrett Justice 15 Ctr., No. 07cv357-N ECF, 2007 WL 2241688, at *3 (N.D. Tex. Aug. 6, 2007) (probable 16 cause to arrest based on field drug test indicating that the powder was a controlled 17 substance although the substance was later found not to be a controlled substance); Hines 18 v. Port Authority of New York and New Jersey, No. 94 CIV 5109 NRB, 2000 WL 19 420555, at *4-5 (S.D.N.Y. Apr. 18, 2000) (field tests showing the white powdery 20 substance tested positive for heroin were sufficient to establish probable cause, although 21 laboratory eventually found substance negative for cocaine). 22 23 The Court concludes there is no genuine issue of material fact that there was a legitimate judicial determination of probable cause to detain Michel pending trial. 24 3. Liability Under Private Person or Government Function Standard 25 While the Court has found that there was a legitimate judicial determination of 26 probable cause to arrest Michel, there is an issue as to whether Defendant is liable for 27 false imprisonment once Ambriz learned, on September 29, 2014, that the substance 28 found in Michel’s car was not an illegal substance. Plaintiff asserts that applying a private 18 16CV277-GPC(AGS) 1 person standard to Ambriz’ actions, Michel was held without lawful privilege from 2 September 29, 2015 once Ambriz learned that the substance found in her car was not an 3 illegal substance, through November 21, 2014, when Ambriz completed her report to her 4 supervisor for approval, and until December 9, 2014, when Michel was released from 5 detention. Defendant asserts that the judicial determination of probable cause forecloses 6 liability after the date of such determination and that Ambriz’s actions are protected 7 under the intentional tort exception to the FTCA general waiver of sovereign immunity. 8 “A person may not be arrested, or must be released from arrest, if previously 9 established probable cause has dissipated.” United States v. Ortiz–Hernandez, 427 F.3d 10 567, 574 (9th Cir. 2005), cert denied, 549 U.S. 876 (2006). “The continuation of even a 11 lawful arrest violates the Fourth Amendment when the police discover additional facts 12 dissipating their earlier probable cause.” United States v. Lopez, 482 F.3d 1067, 1073 13 (9th Cir. 2007) (quoting BeVier v. Hucal, 806 F.2d 123, 129 (7th Cir. 1986)); Sialoi v. 14 City of San Diego, 823 F.3d 1223, 1232 (9th Cir. 2016) (officers may not disregard facts 15 that dissipate probable cause). 16 Under the state law enforcement privilege/immunity, liability for false 17 imprisonment is limited to the time-period between when the false arrest and/or false 18 imprisonment occurs and when criminal charges are instituted. Asgari v. City of Los 19 Angeles, 15 Cal. 4th 744, 753-54 (1997). In the case of a private person, there would be 20 no such limitation for liability. Here, to the extent that the state law enforcement 21 immunity applies, there can be no liability for false imprisonment and false arrest after 22 the judicial determination of probable cause. See Cal. Penal Code § 847(b). Plaintiff 23 does not dispute the effect of the state law immunity, instead she argues that the 24 immunity does not apply under the FTCA. The Court finds that the state law 25 enforcement immunity applies to Agent Bulman. 26 The FTCA provides that the government “is liable in the same manner and to the 27 same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. The 28 parties disagree as whether the state law enforcement privilege/immunity applies to a 19 16CV277-GPC(AGS) 1 claim of false imprisonment by a federal law enforcement officer under the FTCA. 2 Defendant argues that because law enforcement officers engage in a unique governmental 3 function that has no private sector analogue, the law governing state law enforcement 4 officers performing similar actions applies. In response, Plaintiff contends that the 5 Government is liable under a “private person standard” or in this case, the standard for 6 citizen’s arrest as directed by the United States Supreme Court in United States v. Olson, 7 546 U.S. 43 (2005) and the Ninth Circuit case of Tekle v. United States, 511 F.3d 839 8 (9th Cir. 2007). 9 In Olson, a case concerning federal mine inspectors’ negligence that caused a mine 10 accident causing injury to two workers, the United States Supreme Court held that under 11 the FTCA, the scope of liability depends on state law liability of a “private person” or 12 “private entities” and not liability based on state law of public entities, even where 13 uniquely governmental functions are at issue and even “in the performance of activities 14 which private persons do not perform.” United States v. Olson, 546 U.S. 43, 45-47 15 (2005). Even if the conduct entails uniquely governmental functions, the court is to look 16 “further afield” to examine the liability of private persons in analogous situations. Id. at 17 47. In Olson, the government conceded that private persons who conduct safety 18 inspections would be analogous to what federal mine inspectors do. Id. 19 In Tekle, a case without a majority opinion, Judge Tashima followed the holding in 20 Olson in a case involving, inter alia, a claim for false arrest against a minor boy. Tekle, 21 511 F.3d at 851-54. In doing so, Judge Tashima applied California’s law of citizen’s 22 arrest, the state law’s private person analogue. Id. at 854. In applying this standard, 23 Judge Tashima concluded there were genuine issues of material fact regarding the 24 officer’s liability for false arrest. Id. In a concurring opinion, Judge Fisher found that 25 “Olson could be read to support the conclusion that law enforcement privileges should 26 not be recognized in FTCA suits, and that federal officers are left only with those 27 privileges available to private citizens such as the citizen’s arrest privilege. But I would 28 read Olson’s instruction . . . to provide courts with enough flexibility to preserve law 20 16CV277-GPC(AGS) 1 enforcement privileges.” Id. at 857 (Fisher, J., concurring in part and in judgment) 2 (citation omitted). Judge Kleinfeld’s concurring opinion stated that the panel “should not 3 reach the [FTCA] issues,” but “agree[d] with Judge Fisher that the [FTCA] does not 4 expose federal law enforcement officers to liability when they are acting within the 5 confines of the special law enforcement privileges conferred upon them by other 6 statutes.” Id. at 859-62 (Kleinfeld, J., concurring). 7 Given the split decision in Tekle, it provides no binding authority for this Court to 8 apply the law of citizen’s arrest to Plaintiff’s false imprisonment claim against federal 9 border patrol agents. Instead, two of the panel judges have left undisturbed Ninth Circuit 10 precedent supporting the application of the law enforcement privilege to federal law 11 enforcement officers in actions brought under the FTCA. 12 In Arnsberg v. United States, the Ninth Circuit, relying on the reasoning in a 13 Second Circuit case, Caban v. United States, 728 F.2d 68 (2nd Cir. 1984), declined to 14 apply the law of private individuals on law enforcement officers because they “have law 15 enforcement obligations, such as the duty to execute warrants, which private citizens 16 lack; those obligations make the law of citizen arrests an inappropriate instrument for 17 determining FTCA liability. The proper source for determining the government’s 18 liability is not the law of citizen’s arrests, but rather the law governing arrests pursuant to 19 warrants.” Arnsberg v. United States, 757 F.2d 971, 979 (9th Cir. 1985). The court 20 explained that because law enforcement officers have different privileges and duties than 21 private individuals, “a private citizen making a citizen’s arrest does not act under the ‘like 22 circumstances’ required” under the FTCA. Id. 23 In Rhoden, the Ninth Circuit concluded that courts “must apply the law the state 24 courts would apply in the analogous tort action, including federal law.” Rhoden v. 25 United States, 55 F.3d 428, 431 (1995). The court explained that under California law, “a 26 California court would apply federal law to determine whether an arrest by a federal 27 officer was legally justified and hence privileged.” Id. at 431. In reversing the district 28 court’s grant of summary judgment for the government, the court concluded that the 21 16CV277-GPC(AGS) 1 government’s liability would be based on whether the INS agents complied with the 2 relevant federal standards when they detained the plaintiff. Id. 3 In Cervantes, the Ninth Circuit applied California law, specifically, California 4 Penal Code section 847(b),12 which is a law enforcement immunity13 to customs agents 5 who were subject to a false arrest and false imprisonment claim. Cervantes v. United 6 States, 330 F.3d 1186, 1188 (9th Cir. 2003) (applying California Penal Code section 7 847(b) to FTCA claims for false arrest and false imprisonment and concluded that there 8 was probable cause sufficient for the arrest and the district court properly dismissed those 9 claims). In Galvin v. Hay, 374 F.3d 739, 758 (9th Cir. 2004), a protestor brought false 10 arrest claims against the United States under the FTCA for his arrest by members of the 11 Federal Park Police. Citing Arnsberg for the proposition that law enforcement 12 responsibilities make the law of citizens arrests an inappropriate standard to determine 13 FTCA liability, the Ninth Circuit, following Cervantes, applied California law that 14 protects a law enforcement officer from liability for false arrest if the officer, acting 15 within the scope of his authority, effects a lawful arrest or has reasonable cause to believe 16 the arrest was lawful. Id. at 758. 17 18 12 19 20 21 22 23 24 25 26 27 28 Section 847(b) provides that, There shall be no civil liability on the part of, and no cause of action shall arise against, any peace officer or federal criminal investigator or law enforcement officer described in subdivision (a) or (d) of Section 830.8, acting within the scope of his or her authority, for false arrest or false imprisonment arising out of any arrest under any of the following circumstances: (1) The arrest was lawful, or the peace officer, at the time of the arrest, had reasonable cause to believe the arrest was lawful. (2) The arrest was made pursuant to a charge made, upon reasonable cause, of the commission of a felony by the person to be arrested. (3) The arrest was made pursuant to the requirements of Section 142, 837, 838, or 839. Cal. Penal Code § 847(b). 13 Courts have referred to California Penal Code section 847(b) as a statutory immunity. Blankenhorn v. City of Orange, 485 F.3d 463, 486-487 (9th Cir. 2007) (officers were entitled to immunity under California Penal Code section 847(b)); see O’Toole v. Superior Ct., 140 Cal. App. 4th 488, 510-11 (2006). 22 16CV277-GPC(AGS) 1 In Tekle, Judge Fisher noted the “slight tension” between Rhoden, applying federal 2 law enforcement privilege, and Galvin, applying state law enforcement immunity but 3 concluded it is settled that California courts would apply a law enforcement privilege to 4 federal law enforcement officers sued under the FTCA. Id. at 859. 5 The Court agrees with Judge Fisher and Judge Kleinfeld’s opinions that law 6 enforcement privileges may still be applicable even after Olson as it does not explicitly 7 foreclose the applicability of the privilege. Thus, the Court applies the state law 8 enforcement privilege to the false arrest claim brought by Plaintiff. In so doing, liability 9 for false imprisonment is extinguished for the actions or inactions of Agent Bulman as of 10 11 June 3, 2014. Assuming that the private actor standard applies to the actions of Agent Bulman, 12 there is no evidence that he knew of Ambriz’s test results until December 3, 2014 or that 13 he had a duty to continue investigating the drug test results. Cf. Gramenos v. Jewel 14 Companies, Inc., 797 F.2d 432, 437-42 (7th Cir. 1986) (officer who has established cause 15 on every element of the crime need not continue investigating to check out leads or test 16 the suspect’s claim of innocence). 17 The state law enforcement officer immunity would not apply to the actions of 18 chemist Ambriz. However, Ambriz, as a chemist, is immune under the intentional tort 19 exception to the FTCA’s waiver sovereign immunity. The intentional tort exception 20 states that the FTCA’s general waiver of sovereign immunity shall not apply to “[a]ny 21 claim arising out of assault, battery, false imprisonment, false arrest, malicious 22 prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference 23 with contract rights” except when the “acts or omissions” are by “investigative or law 24 enforcement officers.” 28 U.S.C. § 2680(h); Millbrook v. United States, 133 S. Ct. 1441, 25 1446 (2013) (holding that this exception to the § 2680(h) bar applies “regardless of 26 whether the officers are engaged in investigative or law enforcement activity, or are 27 executing a search, seizing evidence, or making an arrest”). An “investigative or law 28 enforcement officer” is defined by statute as “any officer of the United States who is 23 16CV277-GPC(AGS) 1 empowered by law to execute searches, to seize evidence, or to make arrests for 2 violations of Federal law.” 28 U.S.C. § 2680(h). 3 By its terms, this provision [28 U.S.C. § 2680(h)] focuses on the status of persons whose conduct may be actionable, not the types of activities that may give rise to a tort claim against the United States. The proviso thus distinguishes between the acts for which immunity is waived (e.g., assault and battery), and the class of persons whose acts may give rise to an actionable FTCA claim. The plain text confirms that Congress intended immunity determinations to depend on a federal officer’s legal authority, not on a particular exercise of that authority. 4 5 6 7 8 9 10 Millbrook, 133 S. Ct. at 1445. 11 The parties do not dispute that as a senior forensic chemist, Ambriz’ primary job 12 duties involve analyzing evidence for the presence or absence of controlled substances, 13 writing reports on the analyses and testifying in Court. (Dkt. No. 59-1, D’s Response to 14 P’s SSUMF, No. 76.) Because there are no facts to demonstrate that Ambriz has the 15 power to “execute searches, to seize evidence, or to make arrest”, she is not an 16 “investigative or law enforcement officer.” Thus, she is not subject to liability for any 17 intentional tort specified in 28 U.S.C. § 2680(h). See Bunch v. Frank, Cause No. 18 14cv438-WTL-DKL, 2016 WL 5409153, at *4 (S.D. Ind. Sept. 28, 2016) (evidence 19 demonstrated that government employee, who was chemist for ATF (Bureau of Alcohol, 20 Tobacco, Firearms, and Explosive) and a gunshot residue analyst specialist was not 21 investigative or law enforcement officer since he was not authorized to obtain a search 22 warrant, execute a search warrant, or seize evidence). Therefore, any claim for false 23 imprisonment for the acts or omissions by Ambriz fails under the intentional tort 24 exception of the FTCA. Thus, even applying the citizen’s arrest standard, the Court 25 GRANTS Defendant’s motion for summary judgment and DENIES Plaintiff’s motion for 26 partial summary judgment on the false imprisonment/false arrest cause of action. 27 //// 28 24 16CV277-GPC(AGS) 1 E. Discretionary Function Exception to the FTCA 2 Michel’s negligence and negligent infliction of emotional distress claims are based 3 on the period between September 29, 2014, when Ambriz definitively learned that the 4 substance in the bottles found in Michel’s car was not a controlled substance, and 5 December 9, 2014, when Michel was released from jail. Michel contends that Ambriz and 6 Agent Bulman failed to exercise due care imposed on them by the Fourth Amendment to 7 immediately seek to release Michel from jail upon a definitive determination of her 8 innocence. (Dkt. No. 52-1 at 28.) 9 In its motion, Defendant asserts that the discretionary function exception to the 10 FTCA, 28 U.S.C. § 2680(a), bars Plaintiff’s negligence and negligent infliction of 11 emotional distress claims. It maintains that Ambriz and Agent Bulman were following 12 government procedures and that Plaintiff does not have a constitutional right to have her 13 drug samples tested at a lab within a specified time period when her situation did not fall 14 within the types of cases where the drug testing is rushed. Michel argues that the 15 discretionary function exception does not apply to override constitutional mandates of the 16 Fourth Amendment. 17 The FTCA provides a broad waiver of the government’s sovereign immunity for 18 “the negligent or wrongful act or omission of any employee of the Government while 19 20 21 22 23 24 25 26 acting within the scope of his office or employment.” 28 U.S.C. § 1346(b). However, the FTCA’s waiver of immunity is limited by certain statutory exceptions. 28 U.S.C. § 2680. If the cause of action falls under any of these exceptions, then federal courts lack subject matter jurisdiction. Nurse v. United States, 226 F.3d 996, 1000 (9th Cir. 2000). One such exception is the discretionary function exception when the claim is based upon the “exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a).1 “[I]t is the nature of the conduct, 27 28 1 The discretionary function exception provides that the waiver of sovereign immunity does not apply to: “(a) Any claim based upon an act or omission of an employee of the 25 16CV277-GPC(AGS) 1 rather than the status of the actor, that governs whether the discretionary function exception 2 applies in a given case.” United States v. Varig Airlines, 467 U.S. 797, 813 (1984). If 3 governmental conduct falls within the discretionary function exception, it is irrelevant 4 whether the United States abused its discretion or acted negligently. U.S. Fidelity & Guar. 5 Co. v. United States, 837 F.2d 116, 120 (3d Cir. 1988) cert denied, 487 U.S. 1235 (1988). 6 The applicability of the discretionary function exception involves a two part test. 7 First, a court must determine whether the challenged actions involve an “element of 8 judgment or choice.” Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 (1988). 9 “In examining the nature of the challenged conduct, a court must first consider whether the 10 action is a matter of choice for the acting employee.” Id. “Thus, the discretionary function 11 exception will not apply when a federal statute, regulation, or policy specifically prescribes 12 a course of action for an employee to follow. In this event, the employee has no rightful 13 option but to adhere to the directive.” Id. “When established governmental policy, as 14 expressed or implied by statute, regulation, or agency guidelines, allows a Government 15 agent to exercise discretion, it must be presumed that the agent’s acts are grounded in policy 16 when exercising that discretion.” United States v. Gaubert, 499 U.S. 315, 324 (1991). 17 Here, it is not disputed that there is no federal statute, policy or regulation requiring 18 the manner that DEA labs should test incoming drug exhibits. The DEA lab implemented 19 20 21 22 a prioritization policy, based on budgetary restrictions and staff shortages due to a federal hiring freeze where the ones with a trial date, a plea agreement or court order for immediate testing would be given priority. The Court concludes that the DEA’s prioritization policy on drug testing involves an element of judgment and choice based on considerations of 23 24 25 26 27 Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). 28 26 16CV277-GPC(AGS) 1 budgetary restrictions, staff shortages and an increase in the number of drug exhibits in 2 2014 resulting in a backlog of 5400 drug exhibits to be tested. 3 If the discretionary element is met, then at the second step, the court “must determine 4 whether that judgment is of the kind that the discretionary function exception was designed 5 to shield.” Berkovitz by Berkovitz, 486 U.S. at 536. The exception protects “only 6 governmental actions and decisions based on considerations of public policy.” Id. at 537. 7 “In sum, the discretionary function exception insulates the Government from liability if the 8 action challenged in the case involves the permissible exercise of policy judgment.” Id. 9 “Public policy has been understood to include decisions ‘grounded in social, economic, or 10 political policy.’” Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008) (quoting 11 United States v. S.A. Empresa De Viacao Aerea Rio Grandense, 467 U.S. 797, 814 (1984)). 12 The challenged decision “need not actually be grounded in policy considerations” so long 13 as it is, “by its nature, susceptible to a policy analysis.” Nurse, 226 F.3d at 1001 (quoting 14 Miller v. United States, 163 F.3d 591, 593 (9th Cir. 1998) (emphasis in original)). Even if 15 a decision is an abuse of the discretion, the exception still applies. Soldano v. United States, 16 453 F.3d 1140, 1145 (9th Cir. 2006). 17 The Court agrees with Defendant that the DEA lab’s decision on which track, rushed 18 or not rushed, to test the substance found in Plaintiff’s vehicle was driven by policy 19 20 21 22 23 24 25 26 27 considerations. The Government explains and the evidence demonstrates that the DEA, during 2014, was understaffed due to a hiring freeze, where the lab had only 25 chemists instead of the fully staffed 33 chemists, and there were also supervisory and administrative vacancies. Moreover, there was an increase in the number of drug in 2013 and 2014 that resulted in a backlog of 5400 drug exhibits in 2014. The DEA lab’s prioritization balanced policy considerations of completing accurate drug testing despite a backlog, a staffing shortage and a significant increase in the number of incoming drug exhibits. The Court concludes that the DEA lab’s policy concerning how it prioritizes when drug samples are to be tested is discretionary. See Nurse, 226 F.3d at 1002 (promulgation of polices and rules is protected by discretionary function exception); Weissich v. United 28 27 16CV277-GPC(AGS) 1 States, 4 F.3d 810, 813 (9th Cir. 1993) (policy concerns such as budget and personnel 2 allocation fall within discretionary function exception); Miller, 163 F.3d at 596 (quoting 3 Parsons v. United States, 811 F. Supp. 1411, 1420 (E.D. Cal. 1992) (establishing priorities 4 and assigning resources are discretionary choices protected by section 2680(a)). Therefore, 5 the discretionary function exception bars the negligence claims, based on Ambriz’ failure 6 to timely report her findings and on Agent Bulman’s failure to follow up with the DEA 7 Lab and make a rush request upon the AUSA’s request. Ambriz and Agent Bulman 8 exercised their discretion in complying with the prioritization policy established by the 9 DEA lab. 10 Michel does not dispute the two factors the Court must consider in determining 11 whether the discretionary function exception applies, but contends that the discretionary 12 function exception should not apply once probable cause dissipated when the drug testing 13 confirmed that the substance was not a controlled substance. In her response and in her 14 motion, Plaintiff argues that the federal law enforcement officers had no discretion to 15 exercise because the Fourth Amendment requires probable cause to detain an individual 16 and a federal agent has no authority or discretion to extend a pretrial deprivation of liberty 17 for a criminal defendant once definitive results showed that there was no probable cause to 18 continue detaining that individual. 19 20 21 22 23 24 25 26 The discretionary function exception does not apply if it violates the Constitution, a statute, or an applicable regulation since federal officers do not possess discretion to violate constitutional rights or federal statutes. U.S. Fidelity & Guar. Co., 837 F.2d at 120; Nurse, 226 F.3d at 1002 (“governmental conduct cannot be discretionary if it violates a legal mandate.”). In Galvin, the Ninth Circuit held that the discretionary function exception did not apply because “federal officials do not possess discretion to violate constitutional rights.” Galvin, 374 F.3d at 758 (quoting U.S. Fidelity & Guar. Co., 837 F.2d at 120) (since court already concluded that defendant violated the constitution, the discretionary function exception did not apply to false arrest claim). 27 28 28 16CV277-GPC(AGS) 1 Michel argues once Ambriz learned, on September 29, 2014, that testing confirmed 2 no methamphetamine or other controlled substance in the plastic bottles, there was no 3 discretion to continue to detain Michel in jail. In addition, she contends that Agent Bulman 4 should have remained vigilant of the possibility that probable cause could dissipate. 5 Michel asserts that Agent Bulman and Chemist Ambriz are responsible for her continued 6 detention from September 29, 2014 until December 9, 2014. 7 In reviewing the cases cited by Plaintiff and on the Court’s own review of cases 8 concerning the dissipation of probable cause, the imposition of a duty to act once probable 9 cause has dissipated requires actual knowledge of the underlying investigation or arrest 10 and actual knowledge of facts that probable cause has dissipated. See United States v. 11 Grubbs, 547 U.S. 90, 95 n.2 (2006) (“The police may learn, for instance, that contraband 12 is no longer located at the place to be searched.”); Hernandez ex rel. Hernandez v. Foster, 13 657 F.3d 463, 479 (7th Cir. 2011) (defendants were Department of Children and Family 14 Services’ investigator, supervisor and manager and took protective custody of a child and 15 refused to release the child to his parents even after probable cause had dissipated); United 16 States v. Ortiz-Hernandez, 427 F.3d 567, 574-75 (9th Cir. 2005) (if “probable cause is 17 established at any early stage of the investigation, it may be dissipated if the investigating 18 officer later learns additional information that decreases the likelihood that the defendant 19 20 21 22 23 24 25 26 27 has engaged, or is engaging, in criminal activity.”). In this case, Ambriz, as a chemist, had no actual knowledge concerning the facts in Michel’s underlying criminal case and no duty to promptly act to secure the release of Michel. Ambriz was not an investigating officer, as such, she was not involved in the detention and arrest of Michel, involved in the filing of the criminal complaint, aware of Michel’s bail status or aware of the evidence in the possession of the Government supporting Michel’s charges. She testified that she had no knowledge about the underlying criminal case and did not know whether Michel was in custody or not. (Dkt. No. 52-9, P’s Index of Exs., Ex. 5, Ambriz Depo. at 124:3-15.) Plaintiff’s argument that Ambriz, due to her experience, knowledge and training on whether an individual has committed a crime, 28 29 16CV277-GPC(AGS) 1 should have understood the significance of her findings is unsupported by case law. Since 2 she was not involved in the investigation of Michel, Ambriz did not know that the drug 3 testing she performed would have dissipated probable cause to detain Michel. Plaintiff has 4 failed to demonstrate that Ambriz had a duty to promptly act to secure the release Michel. 5 As to Agent Bulman, he did not know about the results of the drug tests until he 6 received an email from the DEA lab on December 3, 2014. Plaintiff claims he should have 7 remained vigilant because of the possibility that probable cause could dissipate and should 8 have complied with the AUSA’s request to have the drug testing rushed. Agent Bulman 9 knew about the DEA lab’s prioritization policy concerning drug testing which is subject to 10 the discretionary function exception. Since there was no court date or sentencing date or 11 any extenuating circumstance for a rush request in Michel’s criminal case, Agent Bulman 12 had discretion to not make the request. Since Agent Bulman did not acquire notice or 13 knowledge that the tests confirmed the absence of a controlled substance until December 14 3, 2014, he cannot be liable for his failure to act. 15 Accordingly, the Court concludes that the discretionary function exception applies 16 to the conduct of Ambriz and Agent Bulman’s actions and/or failure to act concerning the 17 drug testing, and the Court lack subject matter jurisdiction over the claims. Thus, the Court 18 GRANTS Defendant’s motion for summary judgment and DENIES Plaintiff’s motion for 19 20 21 22 23 partial summary judgment on the negligence and negligent infliction of emotional distress causes of action. F. Intentional Infliction of Emotional Distress Defendant moves for summary judgment arguing that there is no viable claim for intentional infliction of emotional distress based on the facts presented. Moreover, the Government contends that Ambriz cannot be liable for intentional infliction of emotional 24 distress because the intentional tort exception bars Plaintiff’s claim since she is not an 25 investigator or law enforcement officer. Plaintiff does not respond to the Defendant’s 26 27 arguments in her opposition. However, in her motion for partial summary judgment, she moves for summary judgment arguing that Ambriz and Bulman engaged in outrageous 28 30 16CV277-GPC(AGS) 1 conduct with reckless disregard for the probability of causing Michel distress. She claims 2 they ignored evidence exonerating Michel and allowed an innocent person to remain in 3 jail. Agent Bulman took no action despite two requests by two AUSAs to either rush or 4 inquire into the status of the lab results and Ambriz, who knew the significance of her 5 findings, did nothing to report her findings for nearly two months. In response, the 6 Government, similar to its moving brief, asserts that the evidence does not demonstrate a 7 claim for intentional infliction of emotional distress and that any claim against DEA 8 chemists, as a non-law enforcement officers, fails. In reply, Plaintiff again does not 9 address the Government’s contention. 10 “A cause of action for intentional infliction of emotional distress exists when there 11 is (1) extreme and outrageous conduct by the defendant with the intention of causing, or 12 reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's 13 suffering severe or extreme emotional distress; and (3) actual and proximate causation of 14 the emotional distress by the defendant's outrageous conduct.” Hughes v. Pair, 46 Cal. 15 4th 1035, 1050 (2009) (quoting Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 16 1001 (1993)); see also Christensen v. Superior Court, 54 Cal. 3d 868, 903 (1991). “A 17 defendant’s conduct is ‘outrageous’ [only] when it is so ‘extreme as to exceed all bound 18 of that [which is] usually tolerated in a civilized community.’” Hughes, 46 Cal. 4th at 19 1050-51 (quoting Potter, 6 Cal. 4th at 1001). “Severe emotional distress means 20 emotional distress of such substantial . . . or enduring quality that no reasonable [person] 21 in civilized society should be expected to endure it.” Id. at 1051 (quoting Potter, 6 Cal. 22 4th at 1004). The California Supreme Court has set a “high bar” to demonstrate severe 23 emotional distress. Id. Suffering discomfort, worry, anxiety, an upset stomach, concern 24 and agitation do not constitute emotional distress. Id. Under California law, where 25 reasonable persons may differ as to whether “the conduct has been sufficiently extreme 26 and outrageous to result in liability,” the issue is a question for the trier of fact. Alcorn v. 27 Anbro Eng’g, Inc., 2 Cal. 3d 493, 798 (1970). 28 31 16CV277-GPC(AGS) 1 Plaintiff relies on extreme and outrageous conduct based on “reckless disregard for 2 the probability of causing emotional distress.” Under that standard, “it is not essential to 3 liability that a trier of fact find a malicious or evil purpose. It is enough that defendant 4 ‘devoted little or no thought’ to the probable consequences of his conduct.” KOVR-TV, 5 Inc. v. Superior Ct., 31 Cal. App. 4th 1023, 1031 (1995). 6 Here, as discussed above on the discretionary function exception, Agent Bulman 7 was exercising his discretion in complying the DEA lab policy concerning prioritization 8 of drug testing. Because he was aware of DEA lab policy, he did not comply with the 9 two requests by the AUSAs’ to either rush or inquire into the status of the lab results. 10 Plaintiff has not demonstrated any facts that Agent Bulman acted with reckless disregard 11 to cause emotional distress to Michel. The Court GRANTS Defendant’s motion for 12 summary judgment on the intentional infliction of emotional distress claim as to Agent 13 Bulman. 14 As discussed above, Ambriz, as a DEA chemist, is subject to the intentional tort 15 exception to the FTCA. See 28 U.S.C. § 2680(h). Defendant argues that the intentional 16 tort exception bars Plaintiff from proceeding against the chemists, who are non-law 17 enforcement officers, under a tort theory. Plaintiff does not address or dispute the 18 Government’s position. As stated above, because there are not facts showing Ambriz, as 19 a chemist, has any authority to “execute searches, to seize evidence, or to make arrest”, 20 she is not an “investigative or law enforcement officer.” The Court concludes that the 21 chemists are not subject to liability for any intentional tort specified in 28 U.S.C. § 22 2680(h). The issue in this case is whether intentional infliction of emotional distress, 23 while not an enumerated act under 28 U.S.C. § 2680(b), may still be barred. 24 The Ninth Circuit has held that “the tort of intentional infliction of emotional 25 distress is not excluded as a matter of law from FTCA by § 2680(h).” Sheehan v. United 26 States, 896 F.2d 1168, 1172 (9th Cir. 1990), amended, 917 F.2d 424 (9th Cir. 1990). 27 However, instead of the label or characterization of the cause of action, the Supreme 28 Court has focused the inquiry on the conduct upon which the plaintiff’s claim is based. 32 16CV277-GPC(AGS) 1 Id. at 1171 (discussing Block v. Neal , 460 U.S. 289, 298 (1983)); Thomas– Lazear v. 2 Federal Bureau of Inv., 851 F.2d 1202, 1207 (9th Cir. 1988) (negligent infliction of 3 emotional distress is merely a restatement of the slander claim which is barred by § 4 2680(h) or “put another way the Government’s actions that constitute a claim for slander 5 are essential to [the plaintiff’s] claim for negligent infliction of emotional distress.”); 6 Metz v. United States, 788 F.2d 1528, 1535 (11th Cir. 1986) (concluding that facts that 7 support intentional infliction of emotional distress claims arise out of the false arrest 8 claim and are barred by § 2680(h), or in other words, “the injury the plaintiff suffered as 9 a result of the alleged torts stems from his false arrest, a tort expressly exempted under 10 the FTCA”). 11 Similarly, in this case, the claim for intentional infliction of emotional distress is 12 based upon the facts that support the false imprisonment cause of action and the injury 13 Michel suffered originate from the false imprisonment claim which is explicitly exempt 14 under the FTCA. Thus, the Court concludes that the intentional infliction of emotional 15 distress claims against the DEA chemists, including Ambriz, are barred. 16 In conclusion, the Court GRANTS Defendant’s motion for summary judgment and 17 DENIES Plaintiff’s motion for partial summary judgment on the intentional infliction of 18 emotional distress claim. 19 20 Conclusion Based on the above, the Court GRANTS Defendant’s motion for summary 21 judgment on all causes of action, and DENIES Plaintiff’s motion for partial summary 22 judgment. The Clerk of Court is directed to enter judgment accordingly. 23 24 IT IS SO ORDERED. Dated: October 31, 2017 25 26 27 28 33 16CV277-GPC(AGS)

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