Opinion
Case No.: CV 19-08912-CJC(MRWx)
2020-07-28
Anabel Fernandez PERALTA, Plaintiff, v. UNITED STATES of America, et al., Defendants.
Eugene Gerald Iredale, Julia Yoo, Grace Jun, Iredale and Yoo APC, San Diego, CA, for Plaintiff. Damon A. Thayer, AUSA - US Attorneys Office, Los Angeles, CA, for Defendants.
Eugene Gerald Iredale, Julia Yoo, Grace Jun, Iredale and Yoo APC, San Diego, CA, for Plaintiff.
Damon A. Thayer, AUSA - US Attorneys Office, Los Angeles, CA, for Defendants.
ORDER DENYING IN SUBSTANTIAL PART DEFENDANT'S MOTION TO DISMISS [Dkt. 14]
CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
On October 16, 2019, Plaintiff Anabel Fernandez Peralta brought this Federal Tort Claims Act ("FTCA") action against the United States of America (hereinafter "the Government") and Does 1–50. Now before the Court is the Government's motion to dismiss for lack of subject matter jurisdiction. (Dkt. 14 [hereinafter "Mot."].) For the following reasons, that motion is DENIED IN SUBSTANTIAL PART.
Having read and considered the papers presented by the parties, the Court finds this matter appropriate for disposition without a hearing. See Fed. R. Civ. P. 78 ; Local Rule 7-15. Accordingly, the hearing set for August 3, 2020, at 1:30 p.m. is hereby vacated and off calendar.
II. BACKGROUND
This case arises from a sexual assault that took place at the Women's Camp at Federal Correctional Complex, Victorville ("FCC Victorville"). Plaintiff's Complaint alleges the following facts. On May 4, 2017, United States Bureau of Prisons ("BOP") correctional officer Apolonio Gamez came across Plaintiff in a storage area in FCC Victorville. (Compl. ¶¶ 21–22.) At the time, Plaintiff was an inmate working in the prison's food service department, and Gamez was her first-level supervisor. (Id. ¶ 22.) Gamez accused Plaintiff of stealing food from the storage area and threatened to put her in "the hole" for theft. (Id. ) Plaintiff knew that there was no special housing unit at FCC Victorville, so she took Gamez's threat to mean that she would be sent to a different facility far away from her family. (Id. ¶ 24.) After making this threat, Gamez said, "[y]ou know I like you. I want to see that body." (Id. ¶ 25.) Gamez proceeded to reach inside Plaintiff's shirt and stroke and suck on her left breast. (Id. ¶¶ 26–27.) Gamez then pulled down Plaintiff's pants while she tried to back away from him. (Id. ¶ 28.) He then unzipped his own pants, removed his penis, and said "put it in your mouth." (Id. ¶ 29.) Plaintiff was terrified and reluctantly performed oral sex on Gamez. (Id. ¶¶ 30–31.) At some point, Gamez ejaculated and some of his semen got onto Plaintiff's bra. (Id. ¶ 34.)
After the assault, Plaintiff became depressed and anxious. (Id. ¶ 36.) She did not immediately report the assault because she feared that prison officials would retaliate by sending her to another facility. (Id. ¶ 38.) But on July 12, 2017, Plaintiff finally told another inmate about what had happened to her. (Id. ¶ 40.) This inmate convinced her to report the assault to BOP officials, which Plaintiff did the following day. (Id. ¶ 41.) The Department of Justice launched an investigation, and an FBI laboratory conducted a DNA test on Plaintiff's bra. (Id. ¶ 42.) The test confirmed that a substance on the bra matched Gamez's DNA. (Id. ) The investigation also uncovered that Gamez had sexually assaulted two other inmates in 2016 and 2017. (Id. ¶ 43.)
On April 4, 2018, Gamez was criminally charged with the alleged sexual assaults. See United States v. Gamez , ED 18-CR-00100, Dkt. 22 [Indictment] (C.D. Cal. Apr. 4, 2018). Eventually, he pled guilty to two counts of sexual abuse of a ward and one count of attempted sexual abuse of a ward, all in violation of 18 U.S.C. § 2243(b). Id. at Dkt. 52 [Plea Agreement]. One of the counts Gamez pled guilty to stemmed from the May 4, 2017 assault of Plaintiff. Id. On January 28, 2019, Gamez was sentenced to a term of 24 months in prison. See id. at Dkt. 62 [Judgment and Commitment Order].
Plaintiff also alleges that BOP officials were aware of Gamez's predatory tendencies before he assaulted her but failed to take action. For example, in 2016, a witness told a lieutenant of the BOP's Special Investigative Services ("SIS") that Gamez was a sexual predator who put the inmates he supervised at risk. (Id. ¶ 16.) About a month later, an inmate reported to a BOP Food Service Administrator that Gamez was having an inappropriate relationship with another inmate. (Id. ¶ 17.) And on October 12, 2016, the BOP SIS received a written tip alleging that Gamez was having inappropriate relations with an inmate and that it was "not safe for the women who work" under him. (Id. ¶ 18.) Despite these warnings, Gamez remained in his position supervising female inmates.
Plaintiff has filed two federal lawsuits related to the May 4, 2017 assault. Both are currently pending before this Court. The first, Peralta v. Gamez , 19-CV-3749 (C.D. Cal. May 1, 2019), asserts four Bivens claims and five state law tort claims against Gamez and unnamed Does. Gamez failed to appear in that action, and the Clerk entered default against him. See Peralta v. Gamez , 19-CV-3749, Dkt. 15 (C.D. Cal. Jul. 29, 2019). The Court subsequently denied Plaintiff's motion for default judgment without prejudice on November 7, 2019. Id. at Dkt. 22.
Plaintiff also filed the instant action against the United States and unnamed Does on October 16, 2019. (See Compl.) In this case, Plaintiff asserts six causes of action under the FTCA for (1) assault, (2) battery, (3) false imprisonment, (4) intentional infliction of emotional distress, (5) negligence, and (6) violation of the Bane Act. (Id. ) The Government moves to dismiss all of these claims for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). (Mot.) Plaintiff opposes that motion. (Dkt. 17 [Opposition to Motion to Dismiss, hereinafter "Opp."].)
III. LEGAL STANDARD
"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). As such, federal courts are presumed to lack jurisdiction in a particular case "unless the contrary affirmatively appears." Stock W., Inc. v. Confederated Tribes of the Colville Reservation , 873 F.2d 1221, 1225 (9th Cir. 1989). In deciding a Rule 12(b)(1) motion challenging subject matter jurisdiction, the burden of proof is on the party asserting jurisdiction, and the court will presume a lack of jurisdiction until the pleader proves otherwise. See Kokkonen , 511 U.S. at 377, 114 S.Ct. 1673.
A jurisdictional challenge under Federal Rule of Civil Procedure 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic evidence. See Warren v. Fox Family Worldwide, Inc. , 328 F.3d 1136, 1139 (9th Cir. 2003). With a facial attack, the challenger asserts that the allegations in a complaint are insufficient on their face to invoke federal jurisdiction, and a court must assume the truth of the complaint's non-conclusory allegations. Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). With a factual attack, "the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id. When ruling on factual attacks, "a court may look beyond the complaint ... without having to convert the motion into one for summary judgment ... [and] need not presume the truthfulness of the [complaint's] allegations." White v. Lee , 227 F.3d 1214, 1242 (9th Cir. 2000) (internal citations omitted).
IV. ANALYSIS
The Government brings a facial attack to Plaintiff's Complaint and contends that her claims fail for several reasons. First, it asserts that this Court lacks subject matter jurisdiction because the Attorney General has not yet certified that Gamez was acting within the scope of his employment when he committed the sexual assault. (Mot. at 11–12.) Next, it contends that even if that certification were not required, Plaintiff has failed to establish subject matter jurisdiction because Gamez was not acting within the scope of his employment under California law. (Id. at 14–21.) Finally, it argues that Plaintiff's Bane Act claim fails and that Plaintiff's request to file an amended complaint asserting additional negligent supervision claims should be rejected as futile. (Id. at 24–25.) The Court first summarizes the relevant statutory background then considers each of these arguments.
A. Statutory Background
"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." F.D.I.C. v. Meyer , 510 U.S. 471, 474, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) ; see also United States v. Mitchell , 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction."). The FTCA—a statute "designed primarily to remove the sovereign immunity of the United States from suits in tort"—operates as such a waiver and allows for certain civil tort actions to proceed against the United States. See Levin v. United States , 568 U.S. 503, 506, 133 S.Ct. 1224, 185 L.Ed.2d 343 (2013) (internal quotations omitted). To fall within the scope of the FTCA, a plaintiff's claim must satisfy six conditions:
[1] [be] against the United States, [2] for money damages, ... [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
Meyer , 510 U.S. at 477, 114 S.Ct. 996 (quoting 28 U.S.C. § 1346(b)(1) ). In essence, the FTCA permits plaintiffs to sue the United States for torts committed by its employees who were acting within the scope of their employment. Id. However, this waiver of immunity is subject to thirteen enumerated exceptions. See 28 U.S.C. § 2680(a) – (n) (listing exceptions to § 1346(b) ). If a plaintiff's tort claim falls within one of the exceptions, the district court lacks subject matter jurisdiction over it. See Morris v. United States , 521 F.2d 872, 874 (9th Cir. 1975).
The second statute relevant to this case is the Federal Employees Liability Reform and Tort Compensation Act of 1988, otherwise known as the Westfall Act. See 28 U.S.C. § 2679(b)(1). This statute was enacted in response to the Supreme Court's decision in Westfall v. Erwin , 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988), which held that Government employees were not entitled to absolute immunity for torts committed in the scope of their employment. The Westfall Act superseded that decision by "accord[ing] federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties." Osborn v. Haley , 549 U.S. 225, 229, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007). Congress conferred this immunity "by making an FTCA action against the Government the exclusive remedy for torts committed by Government employees in the scope of their employment." United States v. Smith , 499 U.S. 160, 163, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991).
In order to trigger this immunity, "defendant employee[s]" must invoke the substitution procedure established by the Westfall Act. See 28 U.S.C. § 2679(d). This procedure begins once the defendant employee notifies the Attorney General that there is a suit pending against him and the Attorney General certifies that the employee "was acting within the scope of his office or employment at the time of the incident out of which the claim arose." 28 U.S.C. § 2679(d)(2). "Upon the Attorney General's certification, the employee is dismissed from the action, and the United States is substituted as defendant in place of the employee." Osborn , 549 U.S. at 229, 127 S.Ct. 881. After this substitution occurs, the plaintiff's claims—which at that point are asserted only against the Government—are governed by the FTCA. See Gutierrez de Martinez v. Lamagno , 515 U.S. 417, 420, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995). B. Non-Certification of Gamez
The Attorney General has delegated this certification decision to the local United States Attorneys pursuant to his authority under 28 U.S.C. § 510. See 28 C.F.R. § 15.
In this case, Plaintiff asserts six FTCA claims against the United States for assault, battery, false imprisonment, intentional infliction of emotional distress, negligence, and a violation of the Bane Act. (See generally Compl.) All six claims seek to hold the Government vicariously liable for Plaintiff's damages stemming from Gamez's sexual assault.
The Government's first argument in support of its motion to dismiss concerns the interplay between the Westfall Act and the FTCA. It asserts that because the Attorney General has not certified (pursuant to the Westfall Act) that Gamez was acting within the scope of his employment when he assaulted Plaintiff, this Court has no jurisdiction over Plaintiff's FTCA claims against the United States. (Mot. at 12–13.) In the Government's view, a plaintiff is barred from asserting FTCA claims directly against the United States unless and until the Attorney General certifies that the employee who allegedly committed the tortious misconduct was acting within the scope of his or her employment. (Id. ) The Government cites no applicable case law for this proposition and the Court is not persuaded by it.
Critically, the Government has failed to explain why the Westfall Act's certification procedures have any bearing in a case with no employee named as a defendant. Again, the Westfall Act's "core purpose" is "to relieve covered employees from the cost and effort of defending [ ] lawsuit[s], and to place those burdens on the Government's shoulders." Osborn , 549 U.S. at 229, 127 S.Ct. 881. In keeping with this purpose, the Westfall Act's certification provisions consistently refer to "defendant employee[s]." See 28 U.S.C. § 2679(d). Indeed, "[f]or the Act to kick in, the employee must notify the Attorney General of the suit" pending against him and the Attorney General must certify that the defendant employee acting within the scope of his employment when the tort occurred. See Sullivan v. Freeman , 944 F.2d 334, 337 (7th Cir. 1991).
In this case, there is no "defendant employee." 28 U.S.C. § 2679(d). Plaintiff is proceeding directly against the United States under the FTCA and has not sued Gamez. It would make little sense to apply the Westfall Act's certification procedures—all of which are designed to ensure that federal employees receive the absolute immunity they are entitled to by statute—in a case where no federal employee has been sued. Accordingly, the fact that the Attorney General has not yet certified that Gamez was acting within the scope of his employment does not preclude this Court from exercising jurisdiction over the FTCA claims Plaintiff asserts against his employer, the United States. See Stewart v. United States , 90 F.3d 102, 106 (4th Cir. 1996) (explaining that the Attorney General's "scope of employment certification is not an issue in this action—[plaintiff] sued the United States directly under the FTCA"); Angel-Arriaga v. United States , 2018 WL 4378789, at *2 (N.D. Cal. June 29, 2018) (explaining that the Westfall Act's certification procedures apply when there is "an employee sued for wrongful or negligent conduct" (emphasis added)).
Of course, Plaintiff will still need to establish that Gamez was acting in the course of his employment in order to have a cognizable claim against the Government under the FTCA. See 28 U.S.C. § 1346(b)(1). But because Plaintiff does not assert claims against Gamez directly, this determination need not involve the Attorney General.
C. Gamez's Scope of Employment
The Court must next determine whether Plaintiff has satisfied each FTCA requirement. Again, the FTCA only waives the Government's sovereign immunity in suits: (1) brought against the United States, (2) for money damages, (3) involving loss of property, or personal injury or death, (4) caused by the negligent or wrongful act or omission of a Government employee, (5) who was acting within the scope of his office or employment, (6) under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. See 28 U.S.C. § 1346(b)(1). Most of these elements are not in dispute. Plaintiff is suing the United States for damages and claims that she was injured by the wrongful acts of one of its employees. (Compl.) The primary dispute is whether that employee was acting within the scope of his employment when he sexually assaulted Plaintiff. The Court finds that factual issues remain on this question, so it cannot be decided as a matter of law at this stage of the case.
In FTCA cases, whether the federal employee was "acting within the scope of his office or employment" at the time of the alleged wrongful acts is analyzed under the respondeat superior principles of the state in which the alleged tort occurred. See Pelletier v. Fed. Home Loan Bank of S.F. , 968 F.2d 865, 876 (9th Cir. 1992). In this case, Gamez's actions occurred in California, so California principles of respondeat superior apply.
"The scope of employment has been broadly interpreted" by California courts. See John Y. v. Chaparral Treatment Ctr., Inc. , 101 Cal. App. 4th 565, 575, 124 Cal.Rptr.2d 330 (2002). California does not follow the traditional rule that an employee's actions are within the scope of employment only if motivated by a desire to serve the employer's interests. See Carr v. Wm. C. Crowell Co. , 28 Cal. 2d 652, 171 P.2d 5 (1946). Instead, for respondeat superior liability to attach, all that is required is "that the [employee's] tort be engendered by or arise from the [employee's] work." Lisa M. v. Henry Mayo Newhall Mem'l Hosp. , 12 Cal. 4th 291, 298, 48 Cal.Rptr.2d 510, 907 P.2d 358 (1995). Under this more permissive test, "[a]n employee's willful and malicious intentional torts, including those that might contravene an employer's express policies, do not automatically fall outside the scope of employment." See Daza v. L.A. Cmty. Coll. Dist. , 247 Cal. App. 4th 260, 268, 202 Cal.Rptr.3d 115 (2016). Rather, to be within the scope of employment, the intentional misconduct must be "a generally foreseeable consequence" of the defendant employer's business, or, stated another way, "not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business." Lisa M. , 12 Cal. 4th at 299, 48 Cal.Rptr.2d 510, 907 P.2d 358 (internal quotations omitted).
Under California law, "[s]exual assaults are not per se beyond the scope of employment." Daza , 247 Cal. App. 4th at 268, 202 Cal.Rptr.3d 115. In Mary M. v. City of Los Angeles , 54 Cal. 3d 202, 285 Cal.Rptr. 99, 814 P.2d 1341 (1991), the plaintiff sued the City after one of its police officers raped her after pulling her over. The California Supreme Court held that the question of whether the officer acted within the scope of his employment was a question of fact for the jury. Id. However, since Mary M. —which placed considerable emphasis on the "unique position" that police officers occupy in society—California courts have been hesitant to find that sexual misconduct falls within the scope of employment in other contexts. See, e.g., Lisa M. , 12 Cal. 4th at 299, 48 Cal.Rptr.2d 510, 907 P.2d 358 (a hospital technician's sexual molestation of patient during an ultrasound was not within the scope of employment); Z.V. v. County of Riverside , 238 Cal. App. 4th 889, 904, 189 Cal.Rptr.3d 570 (2015) (a social worker's sexual assault of minor outside of work hours and at social worker's apartment was not within the scope of employment); John Y. , 101 Cal. App. 4th at 577, 124 Cal.Rptr.2d 330 (counselor's sexual molestation of minor living in residential facility was not within the scope of employment); Daza , 247 Cal. App. 4th at 268, 202 Cal.Rptr.3d 115 (guidance counselor who sexually assaulted an adult student when she went to his office for counseling services did not act within the scope of his employment). The rule that emerged from these post- Mary M. cases is that "a sexual tort will not be considered engendered by the employment unless its motivating emotions were fairly attributable to work-related events or conditions." See Lisa M. , 12 Cal. 4th at 301, 48 Cal.Rptr.2d 510, 907 P.2d 358. Courts must also consider the three policy goals of respondeat superior when deciding whether the doctrine should apply in sexual assault cases: "[1] preventing future injuries, [2] assuring compensation to victims, and [3] spreading the losses caused by an enterprise equitably." Id. at 304, 48 Cal.Rptr.2d 510, 907 P.2d 358. Whether an employee was acting within the scope of employment is "ordinarily" a question of fact, but "becomes a question of law ... when the facts are undisputed and no conflicting inferences are possible." Mary M. , 54 Cal. 3d at 213, 285 Cal.Rptr. 99, 814 P.2d 1341.
The Ninth Circuit recently addressed whether, under California law, a sexual assault committed by a federal employee occurred within the scope of his employment. See Xue Lu v. Powell , 621 F.3d 944 (9th Cir. 2010). In that case, two plaintiffs brought an FTCA action alleging that a federal asylum officer (named Thomas Powell) solicited bribes and sexually assaulted them after they applied for asylum. See id. at 945. The plaintiffs alleged that after conducting their official asylum interviews, Powell invited himself to their homes for "private meetings" during which he insinuated that he would grant their applications in exchange for sexual favors. See id. at 946. In one instance, Powell attempted to remove a plaintiff's clothes and, after she rebuffed his advances, denied her application for asylum. Id. In another, after explaining that he alone could solve the problems with a plaintiff's application, Powell "offensively touched private parts of [the plaintiff's] body." Id. The district court dismissed the FTCA action after determining that Powell had not acted within the scope of his employment, but a Ninth Circuit panel reversed. Id. at 949. It held that because Powell "abused his powers for his own benefit," and because imposing liability on the Government would serve to "compensate his victims, spread the loss, and stimulate the government to greater vigilance in controlling aberrant behavior," he "acted within the scope of his employment as defined by California" even though his conduct was unauthorized and not done to serve his employer. Id.
The facts of this case mirror Xue Lu in critical respects. Gamez allegedly caught Plaintiff attempting to steal food from a warehouse and then threatened to send her to "the hole" if she did not perform sexual favors for him. (See Compl. ¶¶ 22–29.) Like Powell, Gamez was on the job and ostensibly performing his work-related duties up until the time of the assault. Just as Powell "abused his powers" over the plaintiffs' asylum applications for his own benefit, Gamez abused the power he held as a correctional officer for the same purpose. See Xue Lu , 621 F.3d at 949. And like Gamez, Powell was subsequently convicted of two felonies stemming from his assaults. See id. Furthermore, as in Xue Lu , imposing vicarious liability on the Government would serve the identified policy goals of respondeat superior by compensating Plaintiff, spreading the loss, and incentivizing the Government to enact preventative measures to guard against future instances of sexual misconduct by correctional officers. See Lisa M. , 12 Cal. 4th at 304, 48 Cal.Rptr.2d 510, 907 P.2d 358. Simply put, if the asylum officer in Xue Lu was acting within the scope of his employment, so too was Gamez. If anything, Plaintiff's case is even stronger because unlike Powell, who assaulted the victims in their homes, Gamez was working his regular shift and on government property when he committed the assault. Cf. McClaren v. United States , 2014 WL 12591845, at *7 (C.D. Cal. Mar. 25, 2014) (finding that United States Marine Corps officer was not acting within the scope of his employment when he shot plaintiff in part because "[a]t the time of the shooting, [he] was off duty, off base, and using his own personal weapon" and "[the] cases Plaintiff relied upon all involve situations where the employee's tortious conduct took place at the place of employment or during the course of employment").
Because "[t]he liability of a private employer in California does not turn on the vulnerability of the victim" the fact that Plaintiff was an inmate and Gamez was her supervisor has little bearing on the Court's scope of employment analysis. See Xue Lu , 621 F.3d at 949.
In light of the striking similarities between this case and Xue Lu , the Government makes no effort to distinguish Xue Lu factually. Instead, it contends that Xue Lu should be ignored because it was wrongly decided. (Mot. at 20–21.) In support of this argument, the Government notes that one California Court of Appeal recently disagreed with Xue Lu 's scope of employment holding. (See id. at 19–20 [discussing Z.V. v. County of Riverside , 238 Cal. App. 4th 889, 904, 189 Cal.Rptr.3d 570 (2015) ].) But this criticism is not a valid reason for this Court to ignore Xue Lu altogether. The fact that Xue Lu has been criticized by one California Court of Appeal does not make its scope of employment holding—which has never been overturned—any less binding on this Court. See Rotec Indus., Inc. v. Mitsubishi Corp. , 348 F.3d 1116, 1122 n.3 (9th Cir. 2003) (explaining that Ninth Circuit panel opinions can only be overruled by en banc panels, the United States Supreme Court, and state Supreme Courts on issues of state law).
Another California district court recently confronted and rejected the same argument that the Government makes here regarding the continued viability of Xue Lu . See Fajardo v. U.S. Dep't of State , 2018 WL 6588556, at *3 (S.D. Cal. May 29, 2018), affirmed Fajardo v. United States , 792 Fed. Appx. 481 (9th Cir. 2020). In that case, the plaintiff alleged that Marco Rico, a special agent for the State Department, sexually assaulted her after coming to her home, purportedly to help her with her pending deportation proceeding. Id. at *1. The district court was tasked with determining whether Rico acted within the scope of his employment during the alleged assault. After acknowledging that Xue Lu had been "criticized and rejected ... but not overruled," the court determined that " Xue Lu remains binding on this Court" and relied on it to find that Agent Rico acted within the scope of his employment. See id. at *3. This decision was affirmed on appeal just months ago, confirming that Xue Lu remains good law and binding in this case. See Fajardo v. United States , 792 Fed. Appx. 481, 482 (9th Cir. 2020) ("Applying this Court's decision in Xue Lu v. Powell , 621 F.3d 944 (9th Cir. 2010), the district court did not err in holding that Rico acted within the scope of his employment when he allegedly assaulted Fajardo at her home."). Accordingly, under the principles announced in Xue Lu , whether Gamez acted within the scope of his employment when he assaulted Plaintiff cannot be determined as a matter of law at this early stage of the case. See Mary M. , 54 Cal. 3d at 213, 285 Cal.Rptr. 99, 814 P.2d 1341 (holding that scope of employment is only a question of law "when the facts are undisputed and no conflicting inferences are possible"). The Government's motion is to dismiss is DENIED to the extent it argues that Gamez acted outside of the scope of his employment.
D. Bane Act Claim
The Government advances one additional argument regarding Plaintiff's Bane Act claim. It argues that the FTCA only operates as a waiver of sovereign immunity for tort claims, not claims premised on constitutional violations. (Mot. at 24.) In the Government's view, because Plaintiff's Bane Act claim is premised on constitutional violations, the Court lacks subject matter jurisdiction over it. The Court agrees in part.
The Bane Act is a California statute that was enacted in 1987 to address hate crimes. See Cal. Civ. Code § 52.1. A plaintiff alleging a Bane Act claim "must show (1) intentional interference or attempted interference with a state or federal constitutional or legal right, and (2) the interference or attempted interference was by threats, intimidation or coercion." Allen v. City of Sacramento , 234 Cal. App. 4th 41, 67, 183 Cal.Rptr.3d 654 (2015) (citing Cal. Civ. Code § 52.1 ). Private employers can be held liable for violations of the Bane Act committed by their employees. See Stamps v. Superior Court , 136 Cal. App. 4th 1441, 39 Cal.Rptr.3d 706 (2006). Plaintiff's Bane Act claim alleges that Gamez interfered with her rights "under the California and Federal Constitutions" by "the use of intimidation, coercion, and retaliation." (Compl. ¶¶ 96–97.)
The Government is correct—and Plaintiff appears to concede—that Plaintiff cannot maintain a Bane Act claim under the FTCA if it is solely premised on federal constitutional violations. See Meyer , 510 U.S. at 477, 114 S.Ct. 996 (holding that constitutional tort claims are "not actionable under § 1346(b)" because " § 1346(b) does not provide a cause of action for such a claim"); Lewis v. Mossbrooks , 788 Fed. Appx. 455, 460 (9th Cir. 2019) (affirming the dismissal of plaintiff's Bane Act claim because there is no indication that the "FTCA waiver extends to Bane Act claims deriving from constitutional violations"); Plascencia v. United States , 2018 WL 6133713, at *13 (C.D. Cal. May 25, 2018) ("Plaintiff cannot predicate a Bane Act claim against the United States on solely a constitutional violation because the United States has immunity and has not waived its immunity pursuant to the FTCA."). Accordingly, the Government's motion to dismiss is GRANTED to the extent that Plaintiff's Bane Act claim is premised on an interference with her federal constitutional rights. Because giving Plaintiff leave to amend would be futile, Plaintiff's Bane Act claim is DISMISSED WITH PREJUDICE to the extent it is premised on a violation of Plaintiff's federal constitutional rights. See Lopez v. Smith , 203 F.3d 1122, 1127 (9th Cir. 2000) (holding that if a Rule 12(b)(6) motion is granted, a "district court should grant leave to amend ... unless it determines that the pleading could not possibly be cured by the allegation of other facts" such that granting leave would be futile).
Absent the alleged federal constitutional violations, the basis of Plaintiff's Bane Act claim is murky. In the Complaint, she vaguely alleges that Gamez interfered with her rights under the California Constitution but does not identify any specific provision that was violated. (Compl. ¶ 96.) But in her Opposition, she avers for the first time that her Bane Act claim is not based on any constitutional tort, but instead on violations of California statutory law. (See Opp. at 20 [citing Cal. Civ. Code. § 1708.5 ].) Given these inconsistencies and the Complaint's lack of specificity regarding this claim, the Court finds that Complaint has not adequately stated a claim under the Bane Act. Accordingly, the Government's motion to dismiss this claim is GRANTED .
However—contrary to the Government's assertions—several courts have recognized that Bane Act claims are cognizable under the FTCA as long as they are not solely premised upon a federal constitutional violation. See, e.g., Plascencia , 2018 WL 6133713, at *13 (finding that Bane Act claim asserting a violation of the California Constitution was adequately pled in an FTCA action); Xue Lu , 621 F.3d at 950 (finding that Plaintiff had adequately stated a Bane Act claim premised on the interference with their right to asylum); Anonymous v. United States , 2017 WL 1479233, at *4 (S.D. Cal. Apr. 25, 2017) (determining that the relevant caselaw "not only support[s] a finding that the FTCA constitutes a sovereign immunity waiver for Bane Act claims, but also that the FTCA encompasses state-statutory violations"). Because Plaintiff might be able to allege a valid Bane Act claim, the Court finds that granting her leave to amend would not be futile. Accordingly, this claim is DISMISSED WITH FOURTEEN DAYS' LEAVE TO AMEND.
E. Negligent Supervision and Retention Theory
Finally, the parties dispute how the Court should handle Plaintiff's negligent supervision allegations. The Complaint alleges that certain unnamed BOP officials were on notice of Gamez's predatory behavior but failed to do anything to stop him prior to Plaintiff's assault. (See Compl. ¶¶ 16–18.) Specifically, it alleges that Gamez's supervisors received several tips that he had inappropriate relationships with inmates but did not adequately investigate them. (Id. )
Curiously, the Complaint does not appear to assert any claims premised on these factual allegations. (See generally id. ) Instead, all of its claims are premised on Gamez's assault, as opposed to his supervisors' alleged negligence. But confusingly, large sections of Plaintiff's Opposition are dedicated to hypothetical claims brought under a negligent supervision theory. (See Opp. at 11–15.) Recognizing this inconsistency, Plaintiff requests "leave to file an amended complaint that clearly sets forth her theory of liability against the United States for its negligent supervision and retention" of Gamez. (Id. at 21.) The Government contends that this request should be denied as futile because any negligent supervision claims would be barred by the FTCA's discretionary function exception. (Dkt. 19 [Government's Reply] at 6–7.) The Court disagrees.
The discretionary function exception gives the United States immunity for "[a]ny claim ... 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 is abused." 28 U.S.C. § 2680(a). As the Government points out, claims premised on allegedly negligent employment decisions often fall within this exception, subjecting them to dismissal. See, e.g., Nurse v. United States , 226 F.3d 996, 1001 (9th Cir. 2000) (holding that "policy-making defendants' allegedly negligent and reckless employment, supervision and training [decisions] ... [fell] squarely within the discretionary function exception"). But there are exceptions to this rule, such as when a "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Berkovitz by Berkovitz v. United States , 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988) ; See Zeranti v. United States , 358 F. Supp. 3d 244, 258 (W.D.N.Y. 2019) (holding that the discretionary function exception did not bar negligent supervision claim asserted against the supervisors of a government doctor who had a sexual relationship with her patient, the plaintiff). And given that Plaintiff has not yet asserted claims under a negligent supervision theory, it would be inappropriate and premature for the Court to resolve them at this juncture. Whether or not the discretionary function exception defeats Plaintiff's negligent supervision and retention claims should only be determined after she actually asserts them. Accordingly, the Court grants Plaintiff's request and gives her FOURTEEN DAYS' LEAVE TO AMEND the Complaint to more clearly assert these claims.
V. CONCLUSION
For the foregoing reasons, the Government's motion to dismiss is DENIED IN SUBSTANTIAL PART . The motion is GRANTED only as to Plaintiff's Bane Act claim. The Court grants Plaintiff FOURTEEN DAYS' LEAVE TO AMEND this claim and to add claims against the Government under a negligent supervision theory.