even if the court decides the alleged conduct involved an element 13 of choice or discretion the court must then consider whether that choice “involved the type 14 of public policy judgment that the discretionary function exception is designed to shield.”
How later courts described this case
- even if the court decides the alleged conduct involved an element 13 of choice or discretion the court must then consider whether that choice “involved the type 14 of public policy judgment that the discretionary function exception is designed to shield.”
- “Issues of employee supervision and retention generally 11 involve the permissible exercise of policy judgment and fall with the discretionary function 12 exception.”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 JANE DOE, Case No. 21-cv-00039-BAS-AGS
12 Plaintiff,
ORDER GRANTING IN PART AND
13 v. DENYING IN PART UNITED
STATES’ MOTION TO DISMISS
14 JAMES HEBBARD, et al.,
WITHOUT PREJUDICE
15 Defendants. (ECF No. 14)
16
17
18
19 I. BACKGROUND
20 According to Plaintiff’s complaint, on January 20, 2018, while she was in custody
21 at the MCC, Correctional Officer James Hebbard sexually assaulted her. (First Am.
22 Compl. (“FAC”) ¶¶ 16–18, ECF No. 9.) Plaintiff alleges Hebbard also “engaged in
23 improper and assaultive sexual conduct with other female pretrial detainees and inmates
24 (i.e. post conviction detainees) at the MCC.” (Id. ¶18.)
25 Plaintiff initially filed a Complaint against Hebbard (ECF No. 1), but then amended
26 the Complaint to add the United States as a party, alleging violations of the Federal Tort
27 Claims Act (“FTCA”). (FAC, ECF No. 9.) The United States moves to dismiss under
28 Rule 12(b)(6), claiming Plaintiff’s claims are time-barred, and under Rule 12(b)(1) because
1 the negligence claims are barred by the discretionary function exception to FTCA liability.
2 (ECF No. 14.) Plaintiff responds (ECF No. 17), and the United States replies (ECF No.
3 18). The Court finds this motion suitable for determination on the papers submitted and
4 without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons stated below, the Court
5 DENIES the Motion to Dismiss under Rule 12(b)(1) but GRANTS the Motion to Dismiss
6 under Rule 12(b)(6) with leave to amend.
7
8 II. ANALYSIS
9 A. Rule 12(b)(6)—Time Limits of FTCA
10 A district court may dismiss a claim under Rule 12(b)(6) of the Federal Rules of
11 Civil Procedure “‘[i]f the running of the statute is apparent on the face of the complaint.’”
12 Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1045 (9th Cir. 2011) (quoting
13 Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980)). Under 28 U.S.C.
14 §2401(b), “[a] tort claim against the United States shall be forever barred unless it is
15 presented in writing to the appropriate Federal agency within two years after such claim
16 accrues[.]” 28 U.S.C. § 2401(b). The claim is deemed “presented” when it is received by
17 the agency. Redlin v. United States, 921 F.3d 1133, 1136 (9th Cir. 2019) (citing 28 C.F.R.
18 § 14.2(a)). The claim accrues at the time of the injury. Hensley v. United States, 531 F.3d
19 1052, 1056 (9th Cir. 2008).
20 This FTCA limitation is non-jurisdictional and thus subject to equitable tolling.
21 United States v. Wong, 575 U.S. 402, 410–12 (2015). “‘Generally, a litigant seeking
22 equitable tolling bears the burden of establishing two elements: (1) that he has been
23 pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his
24 way.’” Redlin, 921 F.3d at 1140 (quoting Credit Suisse Secs. (USA) LLC v. Simmonds,
25 566 U.S. 221, 227 (2012)).
26 “When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers
27 evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule
28 56 motion for summary judgment, and it must give the nonmoving party an opportunity to
1 respond.” United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). “A court may,
2 however, consider certain materials—documents attached to the complaint, documents
3 incorporated by reference in the compliant, or matters of judicial notice—without
4 converting the motion to dismiss into a motion for summary judgment.” Id. at 908. “Even
5 if a document is not attached to a complaint, it may be incorporated by reference into a
6 complaint if the plaintiff refers extensively to the document or the document forms the
7 basis of the plaintiff’s claim.” Id.; see also Zappulla v. Fischer, No. 11 Civ. 6733 (JMF),
8 2013 WL 1387033, at *1 (S.D.N.Y. Apr. 5, 2013) (“[A] court may consider documents
9 attached to the complaint, statements or documents incorporated into the complaint by
10 reference, matters of which judicial notice may be taken, public records, and documents
11 that the plaintiff either possessed or knew about, and relied upon, in bringing the suit.”).
12 Plaintiff alleges she was injured on January 20, 2018. (FAC ¶ 17.) Therefore, under
13 § 2401(b), she was required to present her claims under the FTCA by January 19, 2020.
14 Plaintiff alleges she “filed an administrative claim with the Bureau of Prisons (BOP) under
15 the Federal Tort Claims Act (FTCA). The claim was denied by the BOP in a letter to
16 Plaintiff’s counsel dated March 1, 2021. Thus, Plaintiff has exhausted her administrative
17 remedies.” (FAC ¶ 10.) Although Plaintiff does not allege the date she filed the
18 administrative claim, the Court may consider the actual documents that form the basis of
19 this claim and on which she relied in bringing this suit. The Government presents a copy
20 of the claim signed by Plaintiff’s counsel, dated January 10, 2021, and sent via certified
21 mail. (See Attach. A to Declaration of Jennifer Vickers (“Vickers Decl.”), ECF No. 14-
22 1.) The BOP responded on January 15, 2021, that it was denying the claim as untimely
23 since it was filed in excess of the two-year filing limitation. (Attach. B to Vickers Decl.)
24 Thus, it is clear that the claim was not timely filed within the two-year period.
25 Counsel argues, both in his brief and in the original claim, that the statutory period
26 was both equitably tolled and that equitable estoppel should be applied to toll the statute.
27 Although ordinarily the applicability of the equitable tolling doctrine depends on matters
28 outside the pleadings and is not generally amenable to resolution on a Rule 12(b)(6) motion
1 (Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995)), in this case,
2 plaintiff has made no allegations in the pleading whatsoever that would support either
3 equitable tolling or equitable estoppel. Plaintiff vaguely suggests in his papers that because
4 of “the vulnerability of inmates vis-à-vis guards,” equitable tolling could be applicable.
5 That well may be true, but not every inmate is entitled to equitable tolling. See Davis v.
6 Jackson, No. 15-cv-5359 (KMK), 2016 WL 5720811 (S.D.N.Y. Sept. 30, 2016). If that
7 was the case, the limitations of the FTCA would be eviscerated with respect to lawsuits
8 brought by prisoners. Instead, Plaintiff must allege some set of facts that would support
9 the argument she is now making that she has been pursuing her rights diligently and some
10 extraordinary circumstance took that ability away. This she has not done. However,
11 because she may be able to allege facts that support her arguments regarding equitable
12 estoppel and/or equitable tolling, the Court will grant her leave to amend to add these
13 allegations. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[D]istrict
14 court should grant leave to amend . . . unless it determines that the pleading could not
15 possibly be cured by the allegation of other facts.’”).
16
17 B. Rule 12(b)(1)—Discretionary Function Exception to FTCA Liability
18 “The FTCA waives the federal government’s sovereign immunity for tort claims arising
19 out of the negligent conduct of government employees or agencies in circumstances where
20 the United States, if a private person, would be liable to the claimant under the law of the
21 place where the act or omission occurred.” Green v. United States, 630 F.3d 1245, 1249
22 (9th Cir. 2011), citing Terbush v. United States, 516 F.3d 1125, 1128-29 (9th Cir. 2008).
23 “However, the discretionary function exception provides an exception to the waiver of
24 immunity from suit under the FTCA for ‘any claim . . . based upon the exercise or
25 performance or the failure to exercise or perform a discretionary function or duty on the
26 part of the federal agency or employee of the Government, whether or not the discretion
27 involved be abused.’” Id. (quoting 28 U.S.C. § 2680(a)). “If the exception applies,
28 immunity is reinstated.” Id. Thus, the Government in this case moves to dismiss Counts
1 14–16, the negligence claims against the United States, as barred by the discretionary
2 exception to the FTCA.
3 In analyzing the discretionary function exception, “first, the court must determine
4 whether the challenged conduct involves an element of judgment or choice.” Nurse v.
5 United States, 226 F.3d 996, 1001 (9th Cir. 2000). “An agency must exercise judgment or
6 choice where no statute or agency policy dictates the precise manner in which the agency
7 is to complete the challenged task.” Green v. United States, 630 F.3d at 1250 (citing
8 Childers v. United States, 40 F.3d 973, 976 (9th Cir. 1994)).
9 If the court determines the challenged conduct involves a choice or discretion on the
10 part of the government, “the court must [then] determine whether the conduct implements
11 social, economic or political policy considerations.” Nurse, 226 F.3d at 1001; see also
12 Green, 630 F.3d at 1251 (even if the court decides the alleged conduct involved an element
13 of choice or discretion the court must then consider whether that choice “involved the type
14 of public policy judgment that the discretionary function exception is designed to shield.”)
15 The purpose behind the discretionary function exception is “to prevent judicial second-
16 guessing of legislative and administrative decisions grounded in public policy.’” Green,
17 630 F.3d at 1249 (quoting Berkovitz v. United States, 486 U.S. 531, 536–37 (1988)).
18 The Ninth Circuit has recognized “the difficulty of charting a clear path through the
19 weaving lines of precedent regarding what decisions are susceptible to social, economic,
20 or political policy analysis” and what are not. Whisnant v. United States, 400 F.3d 1177,
21 1181 (9th Cir. 2005). “Government actions can be classified along a spectrum, ranging
22 from those ‘totally divorced from the sphere of policy analysis,’ such as driving a car, to
23 those ‘fully grounded in regulatory policy,’ such as regulation and oversight of a bank.”
24 Id. (quoting O’Toole v. United States, 295 F.3d 1029, 1035 (9th Cir. 2002)). In determining
25 where on the spectrum a given allegation against the government falls, the Court provides
26 two guidelines. First, the Court distinguishes between design and implementation: “we
27 have generally held that the design of a course of governmental action is shielded by the
28 discretionary function exception, whereas the implementation of that course of action is
1 not.” Id. “Second, and relatedly, matters of scientific and professional judgment—
2 particularly judgments concerning safety—are rarely considered to be susceptible to social,
3 economic, or political policy.” Id.
4 Generally, when deciding a Rule 12(b)(1) motion challenging subject matter
5 jurisdiction, the burden of proof is on the party asserting jurisdiction and the court will
6 presume a lack of jurisdiction until the pleader proves otherwise. Kokkonen v. Guardian
7 Life Ins. Co. of Am, 511 U.S. 375, 377 (1994). However, the burden of proving that an
8 exception to the FTCA exists lies with the government. Prescott v. United States, 973 F.2d
9 696, 702 (9th Cir. 1992). Nonetheless, “a plaintiff must advance a claim that is facially
10 outside the discretionary function exception in order to survive a motion to dismiss.” Doe
11 v. Holy See, 557 F.3d 1066, 1084 (9th Cir. 2009) (quoting Prescott, 973 F.2d at 702 &
12 n. 4).
13 As explained by the Court in Prescott:
14 [A] plaintiff can invoke jurisdiction only if the complaint is facially outside
the exceptions of § 2680. This does not mean, [however,] that the plaintiff
15
must disprove every exception under § 2680 to establish jurisdiction pursuant
16 to the FTCA. What it does mean is that a plaintiff may not invoke federal
jurisdiction by pleading matters that clearly fall within the exceptions of
17
§ 2680. Only after a plaintiff has successfully invoked jurisdiction by a
18 pleading that facially alleges matters not excepted by § 2680 does the burden
fall on the government to prove the applicability of a specific provision of
19
§ 2680.
20
21 973 F.2d at 701 (quoting Carlyle v. United States, 674 F.2d 554, 556 (6th Cir. 1982)).
22 When analyzing whether the discretionary exception applies, “‘the question of how
23 the government is alleged to have been negligent is critical.’” Young v. United States, 769
24 F.3d 1047, 1054 (9th Cir. 2014) (quoting Whisnant, 400 F.3d at 1185). The Court must
25 focus on the nature and conduct being alleged by the plaintiff rather than the status of the
26 actor. Nurse, 226 F.3d at 1001. “[T]he question of whether the government was negligent
27 is irrelevant to the discretionary function exception” but “the issue of how the government
28 was negligent remains ‘critical’ to the discretionary function exception inquiry—indeed,
1 determining the precise action the government took or failed to take (that is, how it is
2 alleged to have been negligent) is a necessary predicate to determining whether the
3 government had discretion to take that action.” Young, 769 F.3d at 1054.
4 “[T]he decision of whether and how to retain and supervise an employee, as well as
5 whether to warn about his dangerous proclivities, are the type of discretionary judgments
6 that the exclusion was designed to protect.” Holy See, 557 F.3d at 1084; see also Vickers
7 v. United States, 228 F.3d 944, 950 (9th Cir. 2000) (“[D]ecisions relating to the hiring,
8 training, and supervision of employees usually involve policy judgments of the type
9 Congress intended the discretionary function exception to shield”); Tonelli v. United States,
10 60 F.3d 492, 496 (8th Cir. 1995) (“Issues of employee supervision and retention generally
11 involve the permissible exercise of policy judgment and fall with the discretionary function
12 exception.”) However, allegations that the government failed to act after notice of an
13 illegal act “does not represent a choice based on plausible policy considerations.” Tonelli,
14 60 F.3d at 496; see also Milano v. Aguilerra, No. 09-cv-2469-L (BLM), 2011 WL 662973
15 (S.D. Cal. Feb. 14, 2011) (holding that if the gravamen of the claim is that, despite
16 knowledge of government employee’s track record for sexual harassment, the government
17 retained him and did not take any corrective action, this goes beyond negligent hiring,
18 training and supervision, and is not subject to the discretionary function exception).
19 In this case, Plaintiff makes two allegations with respect to the United States. In
20 claim 14, Plaintiff alleges that the United States was negligent in hiring, retention,
21 supervision and control of Hebbard. (FAC ¶ 84.) Plaintiff claims the United States was
22 aware or reasonably should have been aware of Hebbard’s conduct. (Id. ¶ 5.) And Plaintiff
23 alleges the government either facilitated Hebbard’s conduct or willfully and recklessly
24 ignored it. (Id.) Second, Plaintiff alleges that the United States had a special relationship
25 with the plaintiff because she was under their care and control and that they committed or
26 facilitated or failed to take reasonable measures to prevent the sexual assault that occurred.
27 (Id. ¶¶ 71, 84.) Specifically, Plaintiff alleges that the United States was aware of the
28 conduct or willfully and recklessly ignored it and did nothing to protect the plaintiff. (FAC
1 19.) Finally, plaintiff alleges the conduct could not have occurred but for the help,
2 || assistance and/or acquiescence of other officials. (FAC § 20.)
3 Considering these allegations in the light most favorable to the plaintiff, the Court
4 || finds the alleged conduct is not shielded by the discretionary function exception. Although
5 || generally supervision, retention, and hiring fall within this exception, in this case Plaintiff
6 || alleges more, claiming that the United States was aware of Hebbard’s conduct, ignored and
7 || assisted in it and this led to Hebbard being able to take advantage of the plaintiff. This
8 ||conduct, if it is proven true, does not represent a choice based on plausible policy
9 ||considerations. Similarly, claims that the United States facilitated, assisted, and
10 || acquiesced in the conduct fall outside the discretionary function exception. These actions
11 ||reflect the implementation of a course of action rather than the design of a course of
12 || governmental action.
13
14 CONCLUSION
15 For the reasons stated above, the Court DENIES Defendant’s Motion to Dismiss
16 |}under Rule 12(b)(1) and finds that the allegations are not subject to the discretionary
17 function exception. However, the Court GRANTS the Motion to Dismiss under Rule
18 || 12(b)(6) as the claims were not timely presented to the appropriate federal agency as
19 ||required by the FTCA. Because Plaintiff may be able to allege sufficient facts showing
20 || equitable tolling, the Court grants Plaintiff leave to amend. Any amended pleading must
21 filed on or before January 7, 2022.
22
23 IT IS SO ORDERED.
24 /\ yy
25 || DATED: December 8, 2021 (ypillg (Mohan 6
26 United States District Judge
27
28