Iliya v. United States Marshalls Service

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6 UNITED STATES DISTRICT COURT

7 NORTHERN DISTRICT OF CALIFORNIA

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9 DAUDA ILIYA, Case No. 24-cv-03720-TSH

10 Plaintiff,

ORDER GRANTING MOTION TO

11 v. DISMISS

12 UNITED STATES MARSHALS SERVICE, Re: Dkt. No. 11

13 Defendant.

14

15 I. INTRODUCTION

16 Plaintiff Dauda Iliya brings this case against the United States Marshals Service

17 (“USMS”), alleging security officers at the entrance to the Ronald V. Dellums Federal Courthouse

18 in Oakland, California forced him to remove his religious cap. USMS seeks an order dismissing

19 the complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure

20 12(b)(1) and for failure to state a claim upon which relief can be granted under Rule 12(b)(6).

21 ECF No. 11. Plaintiff filed an Opposition (ECF No. 15)1 and USMS filed a Reply (ECF No. 17).

22 For the reasons stated below, the Court GRANTS the motion.2

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1 After Plaintiff initially failed to file an opposition, the Court ordered him to show cause why this

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case should not be dismissed for failure to prosecute and failure to comply with court deadlines.

ECF No. 13. Plaintiff subsequently filed a declaration explaining the delay. ECF No. 15-1.

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Accordingly, the Court DISCHARGES the show cause order.

1 II. BACKGROUND

2 Plaintiff states he has a sincerely held religious belief that requires him to wear a “religious

3 cap” “that covers [his] ears or can be positioned to cover [his] ears, as a measure to reduce the

4 likelihood of airborne germ exposure.” Compl. ¶ 15, ECF No. 1. He states that wearing the cap is

5 necessary “in the presence of others when others sneeze in my vicinity.” Id. Plaintiff states this

6 religious practice is supported by his interpretation of biblical verses. Id.

7 On March 17, 2023, Plaintiff visited the Ronald V. Dellums Federal Courthouse in

8 Oakland, California, with the intention of filing documents with the Clerk of Court. Id. ¶ 16.

9 Plaintiff states several court security officers or “John Does,” who he speculates were “U.S.

10 Marshals,” were stationed at the entrance of the courthouse for security purposes. Id. ¶ 17. One

11 of these court security officers informed Plaintiff that he would not be permitted to enter the

12 courthouse building unless he removed his cap. Id. ¶ 20. Plaintiff explained that he wore the cap

13 “for religious purposes” and requested an accommodation to retain the cap while in the

14 courthouse. Id. ¶ 21. After the officer insisted Plaintiff could not enter the courthouse building

15 without removing the cap, he removed the cap “under duress” so that he could enter the

16 courthouse and timely file documents with the Clerk of Court. Id. ¶¶ 23, 26.

17 Plaintiff submitted an administrative claim under the Federal Tort Claims Act (“FTCA”) to

18 USMS on or around March 20, 2023. Id. ¶ 29. He states that USMS formally denied his

19 administrative claim on December 19, 2023. Id. ¶ 31.

20 Plaintiff filed this case on June 20, 2024, naming USMS and Does 1-10 as defendants.

21 The complaint is premised on 42 U.S.C. § 1983 and alleges seven causes of action: (1) violation of

22 his First Amendment rights, (2) violation of 41 C.F.R. § 102-74.445, (3) violation of the Religious

23 Freedom Restoration Act, 42 U.S.C. § 2000bb, et seq. (“RFRA”), (4) intentional infliction of

24 emotional distress, (5) negligence, (6) discrimination or retaliation under Title VII, and (7)

25 violation of his due process rights under the Fifth Amendment. Compl. ¶¶ 1, 34-88. Plaintiff

26 seeks $3,120,210 in monetary damages as well as equitable relief prohibiting USMS “from

27 enforcing policies that unlawfully restrict Plaintiff’s religious practices.” Id. at 16. Plaintiff also

1 USMS filed the present motion on September 9, 2024. It argues Plaintiff’s claims are all

2 subject to dismissal for lack of subject matter jurisdiction because he does not identify a statutory

3 waiver of sovereign immunity for these claims and/or does not allege facts suggesting that there is

4 a plausible risk of repeated injury. Mot. at 1. USMS also argues the security officers at the

5 entrance to the Oakland courthouse are not Deputy U.S. Marshals (as Plaintiff alleges), but rather

6 are independent contractors employed by Metropolitan Security Services, Inc. dba Walden

7 Security. Accordingly, none of the conduct alleged in the complaint is fairly traceable to USMS,

8 and the lawsuit should be dismissed for lack of Article III standing. Id. at 1-2. Even if the Court

9 has subject matter jurisdiction over this lawsuit, USMS argues Plaintiff’s FTCA claims should be

10 dismissed under Federal Rule of Civil Procedure 12(b)(6) because he did not file suit in federal

11 court until more than six months after the date he alleges the agency finally denied his

12 administrative tort claim. Id. at 2.

13 III. LEGAL STANDARDS

14 A. Rule 12(b)(1)

15 Federal district courts are courts of limited jurisdiction: “They possess only that power

16 authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen

17 v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citation omitted). Accordingly, “[i]t

18 is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing

19 the contrary rests upon the party asserting jurisdiction.” Id.; Chandler v. State Farm Mut. Auto.

20 Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010).

21 Federal Rule of Civil Procedure 12(b)(1) authorizes a party to move to dismiss a lawsuit

22 for lack of subject matter jurisdiction. A jurisdictional challenge may be facial or factual. Safe

23 Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where the attack is facial, the

24 court determines whether the allegations contained in the complaint are sufficient on their face to

25 invoke federal jurisdiction, accepting all material allegations in the complaint as true and

26 construing them in favor of the party asserting jurisdiction. Warth v. Seldin, 422 U.S. 490, 501

27 (1975). Where the attack is factual, however, “the court need not presume the truthfulness of the

1 to the existence of subject matter jurisdiction, a court may review extrinsic evidence beyond the

2 complaint without converting a motion to dismiss into one for summary judgment. Id.; McCarthy

3 v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (holding that a court “may review any

4 evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of

5 jurisdiction”).

6 Dismissal of a complaint without leave to amend should only be granted where the

7 jurisdictional defect cannot be cured by amendment. Eminence Cap., LLC v. Aspeon, Inc., 316

8 F.3d 1048, 1052 (9th Cir. 2003).

9 B. Rule 12(b)(6)

10 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal

11 sufficiency of a claim. A claim may be dismissed only if it appears beyond doubt that the plaintiff

12 can prove no set of facts in support of his claim which would entitle him to relief.” Cook v.

13 Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (citation and quotation marks omitted). Rule 8

14 provides that a complaint must contain a “short and plain statement of the claim showing that the

15 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, a complaint must plead “enough facts

16 to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

17 570 (2007). Plausibility does not mean probability, but it requires “more than a sheer possibility

18 that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 687 (2009). A complaint

19 must therefore provide a defendant with “fair notice” of the claims against it and the grounds for

20 relief. Twombly, 550 U.S. at 555 (quotations and citation omitted).

21 In considering a motion to dismiss, the court accepts factual allegations in the complaint as

22 true and construes the pleadings in the light most favorable to the nonmoving party. Manzarek v.

23 St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008); Erickson v. Pardus, 551

24 U.S. 89, 93–94 (2007). However, “the tenet that a court must accept a complaint’s allegations as

25 true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere

26 conclusory statements.” Iqbal, 556 U.S. at 678.

27 If a Rule 12(b)(6) motion is granted, the “court should grant leave to amend even if no

1 be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en

2 banc) (citations and quotations omitted). A court “may exercise its discretion to deny leave to

3 amend due to ‘undue delay, bad faith or dilatory motive on part of the movant, repeated failure to

4 cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . . .,

5 [and] futility of amendment.’” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892–93 (9th

6 Cir. 2010) (alterations in original) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

7 IV. DISCUSSION

8 A. 42 U.S.C. § 1983

9 Section 1983 “provides a cause of action for the ‘deprivation of any rights, privileges, or

10 immunities secured by the Constitution and laws’ of the United States.” Wilder v. Virginia Hosp.

11 Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of

12 substantive rights, but merely provides a method for vindicating federal rights elsewhere

13 conferred. Graham v. Connor, 490 U.S. 386, 393-94 (1989). To state a claim under § 1983, a

14 plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of

15 the United States was violated and (2) that the alleged violation was committed by a person acting

16 under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda County,

17 811 F.2d 1243, 1245 (9th Cir. 1987).

18 USMS first argues that any claims Plaintiff seeks to bring under 42 U.S.C. § 1983 are

19 subject to dismissal because he does not identify a statutory waiver of sovereign immunity. “It is

20 axiomatic that the United States may not be sued without its consent and that the existence of

21 consent is a prerequisite for jurisdiction.”3 United States v. Mitchell, 463 U.S. 206, 212 (1983);

22 see also United States v. Sherwood, 312 U.S. 584, 586 (1941) (“The United States, as sovereign, is

23 immune from suit save as it consents to be sued, and the terms of its consent to be sued in any

24 court define that court's jurisdiction to entertain suit.”) (citations omitted). The federal

25 government may waive its sovereign immunity by statute, but that waiver “must be unequivocally

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3 Damages actions against federal agencies such as USMS are suits against the sovereign. Land v.

1 expressed in statutory text.” Lane v. Peña, 518 U.S. 187, 192 (1996) (citing United States v.

2 Nordic Village, Inc., 503 U.S. 30, 33–34, 37 (1992)). Waivers may not be implied. Irwin v. Dep’t

3 of Veterans Affairs, 498 U.S. 89, 95 (1990); Soriano v. United States, 352 U.S. 270, 276 (1957).

4 And courts must “strictly construe[ ]” any waiver of sovereign immunity, “in terms of its scope, in

5 favor of the sovereign.” Lane, 518 U.S. at 192 (“To sustain a claim that the Government is liable

6 for awards of monetary damages, the waiver of sovereign immunity must extend unambiguously

7 to such monetary claims.”) (citation omitted); Sherwood, 312 U.S. at 590 (collecting cases). As

8 such, plaintiffs bear the burden of establishing “some form of statutory authorization for their

9 claims.” Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1016 (9th Cir. 2007). Absent a

10 waiver of sovereign immunity the action must be dismissed for lack of subject matter jurisdiction.

11 Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985).

12 Here, the federal government has not waived sovereign immunity for claims under § 1983.

13 See Saucerman v. Norton, 51 F. App’x 241, 243 (9th Cir. 2002) (Section 1983 “contain[s] no

14 explicit waiver of sovereign immunity by the federal government”). Indeed, as the Ninth Circuit

15 has noted, “[l]est there be any continuing confusion, we take this opportunity to remind the Bar

16 that by its very terms, Section 1983 precludes liability in federal government actors.” Morse v. N.

17 Coast Opportunities, Inc., 118 F.3d 1338, 1343 (9th Cir. 1997); see also Daly-Murphy v. Winston,

18 837 F.2d 348, 355 (9th Cir. 1987) (no valid basis for § 1983 claim against federal actors); Barrera

19 v. Dep’t of Homeland Sec., 2022 WL 18539662, at *4 (N.D. Cal. Sept. 12, 2022) (same). Thus, as

20 a federal actor, USMS cannot be liable under § 1983.4 Morse, 118 F.3d at 1343.

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4 In his opposition, Plaintiff acknowledges that 42 U.S.C. § 1983 “is inapplicable to federal

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actors,” but he argues he can bring his constitutional violation claims against USMS pursuant to

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

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Opp’n at 8-9. However, Plaintiff does not raise this claim in his complaint, and he cannot amend

his complaint through an opposition brief. See Harrison v. Robinson Rancheria Band of Pomo

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Indians Bus. Council, 2013 WL 5442987, at *4 (N.D. Cal. Sept. 30, 2013) (“It is axiomatic that

the complaint may not be amended by briefs in opposition to a motion to dismiss.”) (quoting

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Tietsworth v. Sears, 720 F. Supp. 2d 1123, 1145 (N.D. Cal. 2010)). Further, the only named

defendant in this lawsuit is USMS, and Supreme Court precedent demonstrates that Bivens claims

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cannot be maintained against a federal agency. F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994) (a

Bivens action for monetary damages for alleged constitutional violations cannot be maintained

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against a federal agency); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69 (2001) (same); see also

1 Accordingly, the Court GRANTS USMS’s motion to dismiss Plaintiffs 42 U.S.C. § 1983

2 claims against USMS WITHOUT LEAVE TO AMEND.

3 B. First and Fifth Amendment Claims

4 Assuming Plaintiff’s constitutional claims do not arise under § 1983, USMS argues they

5 are still subject to dismissal.

6 The First Amendment’s Establishment Clause provides that “Congress shall make no law

7 respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const.

8 amend. I. In his First Amendment claim, Plaintiff alleges his “religious practice of wearing a

9 religious cap is a sincere and deeply held belief that falls squarely within the protection of the First

10 Amendment” and that “[d]espite my explanation of the religious significance of the attire,

11 Defendants imposed a restriction that directly interfered with my ability to freely exercise my

12 religion by denying me access to a government facility and services based solely on my religious

13 attire.” Compl. ¶¶ 38-39.

14 The Due Process Clause of the Fifth Amendment provides that “[n]o person shall be . . .

15 deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. In his

16 Fifth Amendment claim, Plaintiff alleges he “had a constitutionally protected liberty interest in

17 accessing the court clerk’s office to file documentation without undue interference or

18 discrimination based on my religious attire,” and “Defendants, as federal agents acting under color

19 of federal law, deprived me, the Plaintiff, of my constitutionally protected liberty interest without

20 affording me adequate procedural safeguards or justification.” Compl. ¶¶ 84-85.

21 USMS argues these claims should be dismissed because the federal government has not

22 waived sovereign immunity for monetary damages for constitutional violations. Mot. at 6. The

23 Court agrees. See Meyer, 510 U.S. at 486 (an action for monetary damages for alleged

24 constitutional violations cannot be maintained against a federal agency); Hulstedt v. California,

25 2023 WL 9189316, at *2 (N.D. Cal. May 19, 2023), aff’d, No. 23-15966, 2023 WL 9193060 (9th

26 Cir. Oct. 24, 2023) (there is no “statute generally waiving sovereign immunity as to money

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1 damages arising from a fifth amendment due process violation”) (quoting Karahalios v. Def.

2 Language Inst. Foreign Language Ctr. Presidio of Monterey, 534 F. Supp. 1202, 1212 (N.D. Cal.

3 1982)); Williams v. Lew, 2016 WL 4119954, at *3 (C.D. Cal. June 16, 2016), report and

4 recommendation adopted, 2016 WL 4107650 (C.D. Cal. July 28, 2016) (same); Holly v. Jewell,

5 196 F. Supp. 3d 1079, 1091-92 (N.D. Cal. 2016) (dismissing First Amendment claim for monetary

6 damages as “barred by the doctrine of sovereign immunity”). As such, any claim for monetary

7 damages against USMS under the First and Fifth Amendments must be dismissed.

8 To the extent Plaintiff seeks equitable relief, USMS argues his claims are still subject to

9 dismissal because he does not allege facts showing a real and immediate threat of repeated injury.

10 Mot. at 6-7. A plaintiff can sue the federal government and its agencies for equitable relief based

11 on violations of the First Amendment and/or Fifth Amendment. Through the Administrative

12 Procedure Act, Congress provided a general waiver of the government’s sovereign immunity from

13 injunctive relief. 5 U.S.C. §§ 701–02; see also Mitchell, 463 U.S. at 227 n.32 (Congress generally

14 waived the government’s immunity from suit for injunctive relief in § 702). The Ninth Circuit has

15 held that § 702 serves as “an unqualified waiver of sovereign immunity in actions seeking

16 nonmonetary relief against legal wrongs for which governmental agencies are accountable.” The

17 Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 525 (9th Cir. 1989); see also Navajo

18 Nation v. Dep't of the Interior, 876 F.3d 1144 (9th Cir. 2017). “This waiver is not limited to suits

19 under the Administrative Procedure Act.” Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1233

20 (10th Cir. 2005); see The Presbyterian Church (U.S.A.), 870 F.2d at 524-26 (recognizing waiver

21 of the government’s sovereign immunity in actions seeking equitable relief under the First and

22 Fourth Amendments); Ramon by Ramon v. Soto, 916 F.2d 1377, 1383 (9th Cir. 1989) (recognizing

23 waiver of the government’s sovereign immunity in actions seeking equitable relief under the Fifth

24 Amendment).

25 However, in order to bring a claim for equitable relief, Plaintiff must still establish

26 standing, which “is an essential and unchanging part of the case-or-controversy requirement of

27 Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). To establish standing, a

1 conjectural or hypothetical’; (2) a causal connection between the injury and the defendant’s

2 challenged conduct; and (3) a likelihood that a favorable decision will redress that injury.”

3 Pyramid Lake Paiute Tribe of Indians v. Nev. Dep't of Wildlife, 724 F.3d 1181, 1187 (9th Cir.

4 2013) (quoting Lujan, 504 U.S. at 560–61. To establish Article III standing for injunctive relief, a

5 plaintiff “cannot rely solely on past injury and instead must demonstrate ‘a sufficient likelihood

6 that [he] will again be wronged in a similar way’ and a ‘real and immediate threat of repeated

7 injury.’” Fellowship of Christian Athletes v. San Jose Unified Sch. Dist. Bd. of Educ., 82 F.4th

8 664, 723 (9th Cir. 2023) (quoting Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir.

9 2007)). Thus, “past wrongs do not in themselves amount to [the] real and immediate threat of

10 injury” necessary for standing. City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983). Rather, a

11 party must show “continuing, present adverse effects” of the defendant’s actions. Id. at 102. A

12 threated injury “‘must be certainly impending to constitute injury in fact,’ and ‘allegations of

13 possible future injury are not sufficient.’” Fellowship of Christian Athletes, 82 F.4th at 723

14 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)) (emphasis in original).

15 Here, Plaintiff does not allege facts suggesting there is an immediate threat of repeated

16 injury, as he does not allege USMS has a pattern or practice of refusing entry into the Ronald V.

17 Dellums Federal Courthouse unless visitors remove headgear. See Lovelady v. U.S. Customs &

18 Border Prot., 2024 WL 2788436, at *2 (N.D. Cal. May 30, 2024) (dismissing Fourth Amendment

19 claim for lack of standing where the plaintiff “has not alleged an official policy or ongoing

20 practice that might demonstrate ‘a realistic possibility that the [Customs and Border Protection]

21 would subject him to the injurious acts again in the future’”) (quoting Updike v. Multnomah Cnty.,

22 870 F.3d 939, 948 (9th Cir. 2017)). Indeed, the complaint acknowledges that Plaintiff “has

23 attended numerous proceedings in front of different Judges spanning across multiple jurisdiction

24 [sic] and no Judges has [sic] ever order [sic] him to remove his cap.” Compl. ¶ 22. This

25 admission appears to negate any plausible inference of likelihood of future similar injury.

26 Moreover, the complaint also fails to allege that Plaintiff intends to visit the Ronald V. Dellums

27 Federal Courthouse at any point in the future or that he is deterred from doing so because of the

1 likely recur). Under these alleged facts, Plaintiff fails to establish Article III standing to seek

2 equitable relief for his constitutional violation claims. Lovelady, 2024 WL 2788436, at *2;

3 Updike, 870 F.3d at 947-48. As such, dismissal is appropriate.

4 Accordingly, the Court GRANTS USMS’s motion to dismiss Plaintiff First and Fifth

5 Amendment claims. Dismissal is WITHOUT LEAVE TO AMEND with respect to any claim

6 for monetary damages. Dismissal is WITH LEAVE TO AMEND as to any claim for equitable

7 relief, but only if Plaintiff can allege (1) an immediate threat of repeated injury, and (2) that he

8 intends to visit the Ronald V. Dellums Federal Courthouse at any point in the future or that he is

9 deterred from doing so because of the events alleged in this lawsuit.

10 C. Religious Freedom Restoration Act

11 Under the RFRA, “[g]overnment shall not substantially burden a person’s exercise of

12 religion even if the burden results from a rule of general applicability,” unless the government can

13 demonstrate that the application of the burden “is in furtherance of a compelling governmental

14 interest” and “is the least restrictive means of furthering that compelling governmental interest.”

15 42 U.S.C. § 2000bb–1(a), (b). “To establish a prima facie RFRA claim, a plaintiff must present

16 evidence sufficient to allow a trier of fact rationally to find the existence of two elements. First,

17 the activities the plaintiff claims are burdened by the government action must be an ‘exercise of

18 religion.’” Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1068 (9th Cir. 2008) (quoting 42

19 U.S.C. § 2000bb–1(a)), overruled on other grounds by Apache Stronghold v. United States, 95

20 F.4th 608 (9th Cir. 2024). “Second, the government action must ‘substantially burden’ the

21 plaintiff’s exercise of religion.” Id. (quoting 42 U.S.C. § 2000bb–1(a)).

22 Plaintiff alleges “[w]earing a religious cap is an exercise of my sincerely held religious

23 beliefs, protected under RFRA,” “USMS’s “actions in denying me access to the court clerk’s

24 office unless I removed my religious cap substantially applied burden, imposing upon my exercise

25 of religion and was done by the pre-mentioned Federal employees without a compelling

26 governmental interest,” USMS’s “actions were not the least restrictive means of furthering any

27 governmental interest, nor were they necessary to achieve any legitimate security or operational

1 Plaintiff’s religious exercise without justification, Defendants violated Plaintiff’s rights under

2 RFRA.” Compl. ¶¶ 54-57. USMS argues Plaintiff’s RFRA claim fails because (1) the RFRA

3 does not waive the federal government’s sovereign immunity from damages and (2) to the extent

4 he seeks equitable relief, Plaintiff does not demonstrate a plausible risk of certainly impending

5 repeated injury. Mot. at 8.

6 As to any claim for damages, it is well established that “RFRA does not waive the federal

7 government’s sovereign immunity from damages.” Oklevueha Native Am. Church of Haw., Inc. v.

8 Holder, 676 F.3d 829, 840 (9th Cir. 2012); Donovan v. Vance, 70 F.4th 1167, 1172 (9th Cir. 2023)

9 (same). As such, any claim against USMS for monetary damages must be dismissed. To the

10 extent Plaintiff’s RFRA claim is limited to equitable relief, as noted above, a general waiver of

11 sovereign immunity in actions against the United States for injunctive relief can be found in 5

12 U.S.C. § 702 of the Administrative Procedures Act. However, Plaintiff must still establish

13 standing, and he has alleged no facts suggesting there is an immediate threat of repeated injury, as

14 he does not allege USMS has a pattern or practice of refusing entry into the Ronald V. Dellums

15 Federal Courthouse unless visitors remove headgear, nor does he allege he intends to visit the

16 Ronald V. Dellums Federal Courthouse at any point in the future or that he is deterred from doing

17 so because of the events alleged in this lawsuit. Accordingly, dismissal is appropriate for lack of

18 standing. Lovelady, 2024 WL 2788436, at *2; Updike, 870 F.3d at 947-48.

19 Accordingly, the Court GRANTS USMS’s motion to dismiss Plaintiff RFRA claim.

20 Dismissal is WITHOUT LEAVE TO AMEND with respect to any claim for monetary damages.

21 Dismissal is WITH LEAVE TO AMEND as to any claim for equitable relief, but only if Plaintiff

22 can allege (1) an immediate threat of repeated injury, and (2) that he intends to visit the Ronald V.

23 Dellums Federal Courthouse at any point in the future or that he is deterred from doing so because

24 of the events alleged in this lawsuit.

25 D. Intentional Infliction of Emotional Distress and Negligence

26 As a preliminary matter, Plaintiff’s tort claims against the government may only be

27 brought under the FTCA, which provides the exclusive remedy for persons injured by the

1 the scope of employment. 28 U.S.C. §§ 1346(b)(1), 2679(b)(1); Kennedy v. U.S. Postal Serv., 145

2 F.3d 1077, 1078 (9th Cir. 1998) (per curiam) (“The FTCA is the exclusive remedy for tort actions

3 against a federal agency.”); LaBarge v. Mariposa Cnty., 798 F.2d 364, 366 (9th Cir. 1986) (The

4 FTCA is a “limited waiver” of the federal government’s sovereign immunity.). As a result, the

5 Court lacks jurisdiction over Plaintiff’s state tort claims against the USMS.

6 Assuming for purposes of this motion that Plaintiff brought claims under the FTCA,5 the

7 FTCA is a “limited waiver” of the federal government’s sovereign immunity. LaBarge, 798 F.2d

8 at 366. Thus, Plaintiff’s claims are subject to the FTCA’s limitations on the federal government’s

9 waiver of sovereign immunity. An FTCA action lies against the United States and not its

10 agencies. 28 U.S.C. § 2679(a); see also Kennedy, 145 F.3d at 1078; FDIC v. Craft, 157 F.3d 697,

11 706 (9th Cir. 1998); Domantay v. United States Dep’t of Veterans Affairs, 2018 WL 10501631, at

12 *2 (N.D. Cal. Dec. 10, 2018) (granting motion to dismiss agency defendant for lack of jurisdiction

13 because “[t]he United States is the only proper party defendant in a FTCA action”). Thus, because

14 USMS is the only named defendant, Plaintiff’s tort claims against it must be dismissed.

15 Even if they were brought against the United States, USMS argues Plaintiff’s FTCA

16 claims would be subject to dismissal under Rule 12(b)(6) because he did not initiate suit in federal

17 court within six months of the date he alleges USMS formally denied his administrative claim

18 (i.e., December 19, 2023). Mot. at 14. “A tort claim against the United States shall be forever

19 barred . . . unless action is begun within six months after the date of mailing . . . of notice of final

20 denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b). Thus, an

21 FTCA action may not be maintained when the claimant fails to exhaust administrative remedies

22 prior to filing suit. Jerves v. United States, 966 F.2d 517, 518-19 (9th Cir. 1992). Here, Plaintiff

23 filed the complaint on June 20, 2024, which is six months and one day after the alleged date of

24 USMS’s formal denial on December 19, 2023. Compl. ¶ 31. The Ninth Circuit has found FTCA

25 claims initiated in federal court six months and one day after the date of mailing to be untimely.

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5 Although Plaintiff does not explicitly state a claim under the FTCA, he alleges his “claim to the

1 See Adams v. United States, 658 F.3d 928, 934 (9th Cir. 2011) (holding that FTCA claims filed

2 “six months and one day after the date which appears on the letters denying the administrative

3 claims” were “forever barred” under 28 U.S.C. § 2401(b)) (emphasis added); see also Alonzo v.

4 United States, 2017 WL 3264010, at *1 (E.D. Cal. Aug. 1, 2017) (holding that when plaintiffs

5 filed their complaint six months and one day after the agency mailed its denial letter, the plaintiffs’

6 claim was forever barred by the FTCA’s statute of limitations).

7 Plaintiff argues he is permitted to file his FTCA claims in federal court six months and one

8 day after the date of mailing because Federal Rule of Civil Procedure 6(a)(1)(A) excludes the date

9 the tort claim rejection was mailed from the calculation. Opp’n at 3. However, “Rule 6 only

10 applies after a lawsuit has commenced.” Eyre v. Huber, 2019 WL 4246703, at *3-4 (D. Utah

11 Sept. 6, 2019) (further holding that “Rule 6 does not override or replace the timeliness

12 requirements of the FTCA process outlined in 28 U.S.C. § 2401(b)”); see also Velez-Diaz v.

13 United States, 507 F.3d 717, 720 (1st Cir. 2007) (holding that nothing in Rule 6 “qualifies or

14 extends a limitations period that refers, as the FTCA does, to the date of mailing of an exhaustion

15 letter”); Chandler v. United States, 846 F. Supp. 51, 53 (M.D. Ala. 1994) (same).

16 Plaintiff next argues he “made every reasonable effort, as a pro se litigant, to comply with

17 the deadline,” and his “reasonable interpretation of the six-month rule should be afforded equitable

18 consideration.” Opp’n at 3-4. The limitations periods in 28 U.S.C. § 2401(b) are subject to the

19 doctrine of equitable tolling. See United States v. Wong, 575 U.S. 402, 412 (2015). The doctrine

20 of equitable tolling “focuses on whether there was excusable delay by the plaintiff.” Santa Maria

21 v. Pacific Bell, 202 F.3d 1170, 1178 (9th Cir. 2000). To establish equitable tolling, Plaintiff

22 “bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently,

23 and (2) that some extraordinary circumstances stood in his way.” Credit Suisse Secs. (USA) LLC

24 v. Simmonds, 566 U.S. 221, 227 (2012) (emphasis omitted) (quoting Pace v. DiGuglielmo, 544

25 U.S. 408, 418 (2005)). “The doctrine is not available to avoid the consequence of one’s own

26 negligence and does not apply when a late filing is due to claimant’s failure to exercise due

27 diligence in preserving his legal rights.” Hensley v. United States, 531 F.3d 1052, 1058 (9th Cir.

1 The Court finds Plaintiff fails to meet his burden here. First, “the fact that plaintiff is pro

2 se does not in itself justify an equitable tolling of the statute of limitations.” Homer v. Henderson,

3 2001 WL 228164, at *4 (N.D. Cal. Feb. 26, 2001) (citing Scholar v. Pac. Bell, 963 F.2d 264, 268

4 (9th Cir. 1992) (refusing to find equitable tolling where pro se plaintiff missed statutory deadline

5 by three days)). Second, miscalculating a limitations period “is simply not sufficient to warrant

6 equitable tolling.” Lawrence v. Florida, 549 U.S. 327, 336-37 (2007); see also Jones v. Cnty. of

7 San Diego, 2023 WL 8227562, at *1 (9th Cir. Nov. 28, 2023) (“Jones was not entitled to equitable

8 tolling for miscalculating the limitations period.”); Wisenbaker v. Farwell, 399 F. App’x 192, 194-

9 95 (9th Cir. 2010) (incorrectly analyzing a statute of limitations is a “garden variety claim of

10 excusable neglect [that] does not warrant equitable tolling”). Plaintiff provides no other reason

11 why he waited until six months and one day after the date of mailing to file this case. Instead, the

12 record shows he incorrectly calculated the applicable statute of limitations, and that

13 miscalculation—as a matter of law—does not warrant equitable tolling. As such, to the extent

14 Plaintiff seeks to bring tort claims against the government under the FTCA, those claims must be

15 dismissed.

16 Accordingly, the Court GRANTS USMS’s motion to dismiss Plaintiff’s intentional

17 infliction of emotional distress and negligence claims. To the extent Plaintiff seeks to bring tort

18 claims against the government under the FTCA, dismissal is WITHOUT LEAVE TO AMEND.

19 E. Title VII

20 Plaintiff asserts a Title VII claim, alleging USMS discriminated and/or retaliated against

21 him with respect to the alleged conduct on March 17, 2023. Compl. ¶¶ 73-80. However, Title VII

22 forbids discrimination by employers based on an individual’s race, color, religion, sex, or national

23 origin. 42 U.S.C. § 2000e-2. As such, Plaintiff’s claim fails because he does not allege any

24 employment relationship between himself and USMS. See Adcock v. Chrysler Corp., 166 F.3d

25 1290, 1292 (9th Cir. 1999) (“[T]here must be some connection with an employment relationship

26 for Title VII protections to apply”); Murray v. Principal Fin. Group, Inc., 613 F.3d 943, 944 (9th

27 Cir. 2010) (A plaintiff “is entitled to the protections of Title VII only if she is an employee.”);

1 does not “include an explicit waiver of sovereign immunity permitting a nonemployee to file suit

2 against the United States or one of its agencies or departments”). Accordingly, the Court

3 GRANTS USMS’s motion as to Plaintiff’s Title VII claim. As Plaintiff does not address this

4 claim in his opposition or otherwise seek leave to amend to establish the requisite employment

5 relationship, dismissal is WITHOUT LEAVE TO AMEND.

6 F. 41 C.F.R. § 102-74.445

7 Plaintiff also brings a claim under 41 C.F.R. § 102-74.445, which provides: “Federal

8 agencies must not discriminate by segregation or otherwise against any person or persons because

9 of race, creed, religion, age, sex, color, disability, or national origin in furnishing or by refusing to

10 furnish to such person or persons the use of any facility of a public nature, including all services,

11 privileges, accommodations, and activities provided on the property.” A federal regulation by

12 itself, however, may not create a private right of action. See Alexander v. Sandoval, 532 U.S. 275,

13 286 (2001). When a plaintiff alleges a party violated a federal regulation, the right to sue based on

14 that violation must come from either explicit or implied Congressional authorization for a private

15 right of action. Id. at 288-91. Without Congress intending to create a private right of action, “a

16 cause of action does not exist and courts may not create one, no matter how desirable that might

17 be as a policy matter, or how compatible with the statute.” Id. at 286–87.

18 Here, the relevant statute is 40 U.S.C. § 121. Section 121(c)(1) provides “The

19 Administrator [of General Services] may prescribe regulations to carry out this subtitle,” and §

20 121(c)(2) mandates that the Administrator “prescribe regulations that the Administrator considers

21 necessary to carry out the Administrator’s functions under this subtitle.” “Nowhere in the statute

22 does the text provide for an express private right of action.” Sofia v. Esposito, 2019 WL 6529432,

23 at *7 (S.D.N.Y. Dec. 4, 2019). Thus, 40 U.S.C. § 121 must provide an implied private right for

24 Plaintiff to be able to rely on § 102-74.445 for federal question jurisdiction. See Nisqually Indian

25 Tribe v. Gregoire, 623 F.3d 923, 929–30 (9th Cir. 2010) (Court must determine whether Congress

26 implied a private right of action if Congress does not provide one explicitly within a statute’s text).

27 The Supreme Court has explained that what matters is whether a statute shows the intent to

1 that intent. Alexander, 532 U.S. at 291. In analyzing statutes for the existence of implied rights of

2 action, the Ninth Circuit “consider[s] the statute’s language, structure, context, and legislative

3 history to determine whether a private right of action is implied.” Lil’ Man in the Boat, Inc. v.

4 City and Cnty. of San Francisco, 5 F.4th 952, 958 (9th Cir. 2021) (citing Logan v. U.S. Bank Nat.

5 Ass’n, 722 F.3d 1163, 1170 (9th Cir. 2013)). “[C]lear and unambiguous terms” are “required for

6 Congress to create new rights enforceable under an implied private right of action.” Gonzaga

7 Univ. v. Doe, 536 U.S. 273, 290 (2002). “For a statute to create private rights, its text must be

8 phrased in terms of the persons benefitted.” Id. at 274.

9 It is clear from the text and structure of 40 U.S.C. § 121 that Congress had no intention of

10 creating an implied private right of action. With the exception of § 121(b), which discusses the

11 Comptroller General, the statute is focused entirely on the duties and powers of the Administrator

12 of General Services. In no way does the statute discuss the creation of rights for any individual,

13 nor does it speak of “persons benefitted.” “40 U.S.C. § 121 is framed as a directive to the

14 Administrator, providing the authority by which the Administrator may prescribe regulations or

15 delegate authority, amongst other actions.” Sofia, 2019 WL 6529432, at *7. Further, although the

16 statute itself does not provide an express enforcement mechanism, 41 C.F.R. § 102-74.450 states:

17 “A person found guilty of violating any rule or regulation in this subpart . . . shall be fined under

18 title 18 of the United States Code, imprisoned for not more than 30 days, or both.” “Plaintiff’s

19 proffered regulation thus provides its own enforcement mechanism — criminal penalties — which

20 ‘suggests that other means of enforcement are precluded.’” Sofia, 2019 WL 6529432, at *7

21 (dismissing claim under 41 C.F.R. § 102-74.390, finding regulation could not serve as a basis for

22 subject matter jurisdiction) (quoting Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 331-

23 32 (2015)).

24 Given Plaintiff’s lack of standing to pursue a violation of 41 C.F.R. § 102-74.445, the

25 Court GRANTS USMS’s motion to dismiss this claim WITHOUT LEAVE TO AMEND.

26 G. Leave to Amend to Add Additional Claims

27 In his opposition, Plaintiff requests leave to amend to add claims against USMS or the

1 does not apply to programs conducted directly by federal agencies.” Schultz v. Harry S. Truman

2 Scholarship Found., 2021 WL 5712159, at *4 (N.D. Cal. Dec. 2, 2021) (quoting Halim v.

3 Donovan, 951 F. Supp. 2d 201, 207 (D.D.C. 2013)); see also, e.g., Colen v. United States, 2008

4 WL 2051697, at *15 (C.D. Cal. May 12, 2008), aff’d, 368 F. App’x 837 (9th Cir. 2010) (collecting

5 cases finding no private right of action under Title VI against a federal entity). Similarly, the

6 ADA does not apply to the United States or federal agencies. See Swinton v. Dep’t of Just., 2024

7 WL 694481, at *3 (N.D. Cal. Feb. 20, 2024); see also 42 U.S.C. § 12131(1)(A) & (B) (“public

8 entity” includes any state or local government or any department, agency, special purpose district

9 or other instrumentality of a state or states or local government); Clagett v. Woodring, 2008 WL

10 11461743, at *4 (C.D. Cal. Oct. 29, 2008) (collecting cases). Accordingly, leave to amend to add

11 these claims against USMS would be futile, and the Court DENIES Plaintiff’s request.

12 Plaintiff also argues he can obtain relief for his physical, emotional, and economic

13 damages through California’s Bane Act. Opp’n at 13. The Bane Act, Cal. Civ. Code § 52.1(c),

14 created a state law cause of action for damages arising out of interference with “rights secured by

15 the Constitution or laws of the United States, or of the rights secured by the Constitution or laws

16 of this state”); Venegas v. Cnty. of Los Angeles, 32 Cal. 4th 820 (2004); Reynolds v. County of San

17 Diego, 84 F.3d 1162, 1170 (9th Cir. 1996) (“[The Bane Act] does not provide any substantive

18 protections; instead, it enables individuals to sue for damages as a result of constitutional

19 violations.”), overruled on other grounds by Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th

20 Cir. 1997). However, the complaint does not cite the Bane Act, and Plaintiff cannot amend his

21 complaint through an opposition brief. See Harrison, 2013 WL 5442987, at *4.

22 Moreover, a Bane Act claim against USMS (or the United States) would fail because there

23 is no private-person analogue. Under the FTCA, the United States can only be sued “if a private

24 person[] would be liable” in like circumstances. 28 U.S.C. § 1346(b)(1). The FTCA does not

25 waive sovereign immunity for claims against the United States based on governmental “action of

26 the type that private persons could not engage in and hence could not be liable for under local

27 law.” Chen v. United States, 854 F.2d 622, 626 (2d Cir. 1988) (internal quotes omitted). The

1 entities, when assessing liability under the FTCA.” United States v. Olson, 546 U.S. 43, 45-46

2 (2005). Though the private analogue need not be exact, a plaintiff must offer “a persuasive

3 analogy” showing that the government actor sued would be subject to liability under state law if it

4 were a private person. Westbay Steel, Inc. v. United States, 970 F.2d 648, 650 (9th Cir. 1992).

5 Although Plaintiff’s invocation of the Bane Act discusses his claimed damages and not the

6 legal theories underpinning those damages, these proposed claims appear to be based on alleged

7 due process violations. See Opp’n at 14 (stating that the “Bane Act (California Civil Code § 52.1)

8 provides grounds for the plaintiff’s due process violation claim related to conspiracy and civil

9 rights infringement”). However, because “private person[s]” cannot be held liable for federal

10 constitutional violations, the Supreme Court has held that “the United States simply has not

11 rendered itself liable under § 1346(b) for constitutional tort claims.” Meyer, 510 U.S. at 478.

12 Applying Meyer, the Ninth Circuit has held that a “district court lacked subject matter jurisdiction

13 over [a] Bane Act claim,” where the “Bane Act claim imports a constitutional violation . . . that

14 could not otherwise be the basis for a claim against a private person.” Lewis v. Mossbrooks, 788

15 F. App’x 455, 460 (9th Cir. 2019). Accordingly, leave to amend to add Bane Act claims against

16 USMS (or the United States) for alleged constitutional due process violations would be futile, and

17 the Court DENIES Plaintiff’s request.

18 V. CONCLUSION

19 For the reasons stated above, the Court GRANTS USMS’s motion to dismiss as follows:

20 1) Plaintiff’s 42 U.S.C. § 1983 claims are DISMISSED WITHOUT LEAVE TO AMEND;

21 2) Plaintiff’s First and Fifth Amendment claims are DISMISSED WITHOUT LEAVE TO

22 AMEND as to any claim for monetary damages and DISMISSED WITH LEAVE TO

23 AMEND as to any claim for equitable relief;

24 3) Plaintiff’s Religious Freedom Restoration Act claim is DISMISSED WITHOUT LEAVE

25 TO AMEND as to any claim for monetary damages and DISMISSED WITH LEAVE

26 TO AMEND as to any claim for equitable relief;

27 4) Plaintiff’s claims for Intentional Infliction of Emotional Distress and Negligence are

1 (including under the FTCA), dismissal is WITHOUT LEAVE TO AMEND.

2 5) Plaintiff’s Title VII claim is DISMISSED WITHOUT LEAVE TO AMEND; and

3 6) Plaintiff’s 41 C.F.R. § 102-74.445 claim is DISMISSED WITHOUT LEAVE TO

4 AMEND.

5 To the extent Plaintiff seeks to add claims against USMS or the United States under Title

6 VI, the ADA, and the Bane Act, leave to amend is DENIED.

7 If he chooses to do so, Plaintiff may file a first amended complaint by January 21, 2025.

8 Failure to do so may result in dismissal of this case. Plaintiff should be mindful to name the

9 correct defendant(s) for each claim.

10 A. REQUIREMENTS FOR AMENDED COMPLAINT

11 Because an amended complaint replaces the previous complaint, any amended may not

12 incorporate claims or allegations in the original complaint by reference. See Ferdik v. Bonzelet,

13 963 F.2d 1258, 1262 (9th Cir. 1992). Instead, any amendment must include all of the facts and

14 claims to be presented and all of the defendants that are to be sued. In addition, any amended

15 complaint must include the following sections:

16 Caption Page

On the first page, list the names of the defendant(s), the case number

17 used in this order (3:23-cv-0412 TSH), the title (“FIRST AMENDED

COMPLAINT”), and write “Demand for Jury Trial” if you want your

18 case to be heard by a jury.

19 Subject Matter Jurisdiction

The first numbered paragraph in your complaint (labeled

20 “Jurisdiction”) should explain why this Court has the power to decide

this kind of case. A federal court can hear a case based on a federal

21 question jurisdiction (a violation of federal law under 28 U.S.C. §

1331) or diversity jurisdiction (when all plaintiffs and all defendants

22 are citizens of different states disputing more than $75,000) under 28

U.S.C. § 1332.

23

Parties

24 In separate paragraphs, identify the plaintiff(s) and the defendant(s)

in the case.

25

Statement of Facts

26 Explain the important facts in your case in numbered paragraphs,

describing how the defendant(s) violated the law and how you have

27 been injured.

Include a separate heading for each legal claim (Claim 1, Claim 2,

1 etc.), identifying the specific law that you think the defendant(s)

5 violated and explaining what each defendant did to violate each law.

3 || B. RESOURCES

4 Plaintiff may wish to seek assistance from the Legal Help Center, a free service offered by

5 the Justice & Diversity Center of the Bar Association of San Francisco. You may request an

6 appointment by emailing fedpro @sfbar.org or calling 415-782-8982. At the Legal Help Center,

7 you will be able to speak with an attorney who may be able to provide basic legal help but not

8 || representation. More information is available at http://cand.uscourts.gov/helpcentersf.

9 Plaintiff may also wish to obtain a copy of this District’s Handbook for Litigants Without a

10 || Lawyer, which provides instructions on how to proceed at every stage of your case. The

11 handbook is available in person at the Clerk’s Office and online at:

12 || http://cand.uscourts.gov/prosehandbook.

13 IT IS SO ORDERED.

14

15 Dated: December 20, 2024

6 AY \ . Lj □

5 Ur se S. HIXSON

nited States Magistrate Judge

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