Parker v. Prishker

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 Case No.: 3:24-cv-2138-L-MSB KAREN PARKER, an individual, [12] ORDER DENYING THE Plaintiff, 13 GOVERNMENT’S MOTION TO v. DISMISS FOR LACK OF SUBJECT [14] MATTER JURISDICTION JUAN PRISHKER, an individual; and [15] UNITED STATES OF AMERICA, 16 [ECF No. 17] Defendants. [17] 18 Pending before the Court is Defendant United States of America’s (“United States” 19 or the “Government”) motion to dismiss for lack of subject-matter jurisdiction. (ECF No. 20 17.) Plaintiff Karen Parker opposed (ECF No. 18), and the Government replied (ECF 21 No. 19). The Court decides the matter on the papers submitted without oral argument. 22 See Civ. LR 7.1(d.1). For the reasons set forth below, the Government’ motion is denied. 23 / / / / / [27] 28 1 1 A. BACKGROUND 2 Plaintiff is a retired social worker who volunteers as a humanitarian aid worker 3 providing first aid services to detainees at the U.S.-Mexico border around Jacumba 4 Springs, California. Plaintiff frequently works with Border Patrol agents to ensure the 5 timely delivery of medical care to immigrants in the custody of the United States 6 Customs and Border Protection Agency (“CBP”). 7 Plaintiff was volunteering at a CBP open air detention center. To facilitate medical 8 transport for a detainee, Plaintiff sought to contact a CBP agent. Plaintiff drove to an 9 area along the border wall where agents were often found. She encountered Agent Juan 10 Prishker (“Prishker”) alone in his truck and parked beside him. Plaintiff and Prishker 11 stood between their two vehicles when Plaintiff asked Prishker about a detainee medical 12 transport. Instead of responding to her inquiry, Prishker blocked Plaintiff from her car 13 and showed her two photos of his penis on his phone. He asked Plaintiff what she 14 thought about them. When Plaintiff tried to retreat to her car, Prishker again blocked her 15 way and asked her the “difference between good and evil,” and whether they were “the 16 same.” Plaintiff was terrified, given that she was alone in the dark with an armed agent 17 much larger than herself. She was eventually able to back away and leave. 18 In October of 2024, Prishker was charged by the San Diego District Attorney’s 19 Office with two felonies -- sexual battery and false imprisonment, and four misdemeanor 20 counts of distributing obscene material. Plaintiff is one of multiple victims in the 21 criminal complaint. 22 / / / / / [25] 26 1 Because the Government’s motion presents a facial challenge, the Court takes as true the allegations in the operative complaint. See Leite v. Crane Co., 749 F.3d 1117 , [27] 1121 (9th Cir. 2014). 28 2 1 In this action Plaintiff alleges intentional infliction of emotional distress, 2 negligence, and false imprisonment under the Federal Torts Claim Act (“FTCA”) against 3 Prishker and the Government. The Government moves to dismiss for lack of subject 4 matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).2 5 B. LEGAL STANDARD 6 The Government asserts sovereign immunity as the basis for dismissal. A claim of 7 sovereign immunity is a quasi jurisdictional issue that can be addressed on a Rule 8 12(b)(1) motion. Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015).3 9 A defendant’s challenge under Rule 12(b)(1) may be either facial or factual. Safe 10 Air for Everyone v. Meyer, 373 F.3d 1035 , 1039 (9th Cir. 2004). A facial challenge 11 “accepts the truth of plaintiff’s allegations but asserts that they ‘are insufficient on their 12 face to invoke federal jurisdiction.’” Leite, 749 F.3d at 1121 (quoting Safe Air for 13 Everyone, 373 F.3d at 1039). By contrast, a factual challenge “contests the truth of the 14 plaintiff's factual allegations, usually by introducing evidence outside of the pleadings.” 15 Id. The Government brings a facial challenge. (ECF No. 17, “Mot.” at 4.) 16 C. DISCUSSION 17 1. Sovereign Immunity 18 “The United States, as sovereign, is immune from suit save as it consents to be 19 sued.” United States v. Sherwood, 312 U.S. 584, 586 (1941). “Thus, the United States 20 may not be sued without its consent and the terms of such consent define the court’s 21 jurisdiction.” Baker v. United States, 817 F.2d 560, 562 (9th Cir.1987). “There cannot 22 be a right to money damages without a waiver of sovereign immunity.” United States v. [24] 2 All future references to “Rule” or “Rules” refer to the Federal Rules of Civil [25] Procedure. [26] 3 Unless otherwise noted, internal quotation marks, citations, footnotes, ellipses, and [27] brackets are omitted from citations. 28 3 1 Testan, 424 U.S. 392, 400 (1983). A waiver is not implied but must be unequivocally 2 expressed. Id. at 399 . “[S]tatutes which are claimed to be waivers of sovereign 3 immunity are to be strictly construed against such surrender.” Safeway Portland Emp. 4 Fed. Credit Union v. Fed. Deposit Ins. Corp., 506 F.2d 1213, 1216 (9th Cir. 1974). 5 A party bringing a cause of action against the federal government bears the burden 6 of showing an unequivocal waiver of immunity. Holloman v. Watt, 708 F.2d 1399 , 1401 7 (9th Cir. 1983). “The question whether the United States has waived its sovereign 8 immunity against suits for damages is, in the first instance, a question of subject matter 9 jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). “Absent 10 consent to sue, dismissal of the action is required.” Hutchinson v. United States, 677 11 F.2d 1322 , 1327 (9th Cir. 1982). 12 2. FTCA 13 Plaintiff claims waiver of sovereign immunity under the FTCA. The FTCA is the 14 exclusive remedy for tortious conduct by the United States. Fed. Deposit Ins. Corp. v. 15 Craft, 157 F.3d 697, 706 (9th Cir. 1998). It “grants the federal district courts jurisdiction 16 over a certain category of claims for which the United States has waived its sovereign 17 immunity and ‘render[ed]’ itself liable.” Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471 , 18 477 (1994) (citing 28 U.S.C. § 1346 (b)). Section 1346(b) provides in pertinent part: 19 [T]he district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages …, for injury or loss of property, or [20] personal injury or death caused by the negligent or wrongful act or omission of any 21 employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, [22] would be liable to the claimant in accordance with the law of the place where the 23 act or omission occurred. [25] 28 U.S.C. § 1346 (b). The United States is liable “in the same manner and to the same 26 extent as a private individual under like circumstance[s].” 28 U.S.C. § 2674 . Here, the [27] 28 4 1 Government is liable for Prishker’s conduct if a private employer would be liable under 2 California law. 3 3. Scope of Employment 4 The only dispute presented by the Government’s motion is whether Prishker was 5 acting within the scope of his employment when the events that gave rise to this case took 6 place. In FTCA cases, whether the federal employee was acting within the scope of his 7 employment is analyzed under the respondeat superior principles of the state in which 8 the alleged tort occurred. See Pelletier v. Fed. Home Loan Bank of S.F., 968 F.2d 865 , 9 876 (9th Cir. 1992). California law of respondeat superior applies here because 10 Prishker’s actions occurred in California. 11 “The scope of employment has been broadly interpreted” by California courts. 12 John Y. v. Chaparral Treatment Ctr., Inc., 101 Cal. App. 4th 565, 575 (2002). 13 Respondeat superior liability attaches when the employee’s tort is engendered by or 14 arises from his or her work. Lisa M. v. Henry Mayo Newhall Mem’l Hosp., 12 Cal. 4th 15 291, 298 (1995). Accordingly, “[a]n employee’s willful and malicious intentional torts, 16 including those that might contravene an employer’s express policies, do not 17 automatically fall outside the scope of employment.” Daza v. Los Angeles Comm’ty. 18 Coll. Dist., 247 Cal. App. 4th 260, 268 (2016). To fall within the scope of employment, 19 the intentional misconduct must be “a generally foreseeable consequence” of the 20 defendant employer’s business, or stated another way, “not so unusual or startling that it 21 would seem unfair to include the loss resulting from it among other costs of the 22 employer’s business.” Lisa M., 12 Cal. 4th at 299. 23 For example, in an FTCA action alleging emotional distress arising from sexual 24 assault, an asylum officer who solicited bribes and sexual favors in exchange for granting 25 asylum applications was found to have acted within the scope of his employment under 26 California law, even though his conduct was unauthorized and did not serve his 27 / / / / / 28 5 1 employer. Xue Lu v. Powell, 621 F.3d 944 (9th Cir. 2010) (“Powell”). The court found 2 that the officer abused his powers and his conduct, although unauthorized, was incidental 3 to his employment. Id. at 948-49 . 4 The Government argues that “[i]n the case of a law enforcement officer sexual 5 assault, a finding of scope hinges on the misuse of the officer’s arrest authority or legal 6 authority to commit the assault.” (ECF No. 19, “Reply,” at 4.) The Court disagrees. The 7 holding of Powell did not hinge on the asylum officer’s arrest authority or legal authority 8 to commit the assault but on his authority to grant asylum applications. See also Fajardo 9 v. United States, 792 F. App’x 481 (9th Cir. 2020) (sexual assault on witness by Special 10 Agent of the U.S. Department of State investigating passport fraud held within scope of 11 employment). 12 Here, Plaintiff contacted Prishker in his official capacity as a CBP agent while he 13 was on duty. She contacted him with a work-related inquiry about medical transport for 14 an immigration detainee. Plaintiff alleges that Prishker abused his position as an armed 15 CBP agent when he falsely imprisoned and sexually harassed her. Accordingly, Plaintiff 16 has alleged sufficient facts to show that Prishker acted within the scope of his 17 employment. 18 / / / / / [25] 4 Ninth Circuit opinions analyzing state law issues are binding on federal district 26 courts unless overturned by en banc panels, the United States Supreme Court, or the State Supreme Court. See Rotec Indus., Inc. v. Mitsubishi Corp., 348 F.3d 1116 , 1122 n.3 (9th [27] Cir. 2003). 28 6 1 C. CONCLUSION 2 For the foregoing reasons, the Government’s motion is denied. [3] 4 IT IS SO ORDERED. [5] 6 Dated: August 18, 2025 (fee oop g H . James Lorenz, 9 United States District Judge [28] 3:24-cv-2138-L-MSB