Ahn v. GEO Group, Inc. ( 2024 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 SYLVIA AHN, Case No. 1:22-cv-00586-CDB 9 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 10 v. (Doc. 54) 11 GEO GROUP, INC., et al., 12 Defendants. 13 14 Pending before the Court is the motion of Defendants the United States of America and 15 United States Immigration & Customs Enforcement to dismiss the second amended complaint of 16 Plaintiff Sylvia Ahn, supported by declarations and exhibits. (Docs. 54, 60). Plaintiff filed an 17 opposition on July 14, 2023 (Doc. 61), and Defendants filed a Reply supported by an additional 18 exhibit on July 21, 2023. (Doc. 64). For the reasons set forth below, Defendants’ motion to 19 dismiss will be granted.1 20 I. Background 21 Plaintiff is the daughter of Choung Woong Ahn (the “Decedent” or “Mr. Ahn”) and brings 22 this action on behalf of his estate. (Doc. 46, Second Amended Complaint (“SAC”) ⁋2). She 23 initiated this action with the filing of a complaint on May 17, 2022, asserting claims against the 24 United States of America, the United States Immigration & Customs Enforcement (“ICE”), and 25 GEO Group, Inc. (“GEO”). (Doc. 1). The claims stem from the Decedent’s detention at Mesa 26 Verde Detention Facility (“Mesa Verde”) in or around February 2020. 27 1 Following the parties’ grant of consent to the jurisdiction of a U.S. magistrate judge for all purposes, this case was assigned to the undersigned on March 30, 2023. (Doc. 39). 1 Mr. Ahn was admitted into the United States as a lawful permanent resident in 1988. 2 (SAC ⁋13). He lived in the San Francisco Bay area until 2013, when he was convicted of 3 attempted murder with a firearm enhancement. (Doc. 54-1 p. 1). Since Mr. Ahn’s felony was a 4 removable offence, shortly before he served his state sentence, Defendants commenced removal 5 proceedings. Id. 6 While he served his prison sentence, Mr. Ahn developed severe depression and other 7 mental health conditions. Mr. Ahn previously attempted suicide at least three times while 8 incarcerated. (SAC ⁋14). Mr. Ahn also had physical disabilities including hypertension, type two 9 diabetes, and severe heart-related issues. (Doc. 61 pp. 2-3). 10 Mr. Ahn was placed in detention at Mesa Verde, a federal immigration detention facility, 11 on February 21, 2020, after being released from CSP Solano on parole. (SAC ⁋15). Mr. Ahn was 12 74 years old at the time. Id. ⁋12. According to the SAC, Mesa Verde is operated by GEO, a 13 private company contracted by ICE in 2015. Id. ⁋15-16. Conditions in immigration detention 14 facilities like Mesa Verde are governed by ICE’s Performance-Based National Detention 15 Standards (“PBNDS”). (Doc. 61 p. 3). The PBNDS require that detainees be screened at intake 16 for disabilities and history of mental illness or self-harm. (Doc. 61-2 “PBNDS” p. 333). The 17 PBNDS further require that “[a]t the time of screening, staff should also assess relevant available 18 documentation as to whether the detainee has been a suicide risk in the past, including during any 19 periods of detention or incarceration.” Id. 20 According to Plaintiff, Mr. Ahn’s intake screening failed to identify his history of 21 depression, suicide attempts, and other mental health conditions. (SAC ⁋26). In March 2020, 22 Mr. Ahn was admitted to the emergency department of an outside hospital for surgery to remove 23 a mass on his lung. Id. ⁋ 28. Mr. Ahn was highly distressed by this mass since he believed that 24 he was diagnosed with lung cancer. ICE allegedly delayed authorizing his follow-up care or 25 biopsy and Mr. Ahn died before receiving any follow ups. Id. ⁋⁋29-31. 26 Plaintiff also avers that the COVID-19 pandemic reached California in or around March 27 2020. Id. ⁋32. On April 10, 2020, ICE issued COVID-19 Pandemic Response Requirements 1 (Doc. 61-3 “PRR”). The PRR required each facility to “have a COVID-19 mitigation plan,” 2 comply with CDC guidance, and identify any detainees who had heightened risks, which included 3 detainees who were aged 65 and over as well as detainees who have mental health conditions 4 including depression. Id. at 10. Any detainee who required health care beyond facility resources 5 was to be timely transferred to an appropriate facility. Id. Furthermore, a facility that reached 6 “community risk status” of level “red” was also required to implement population reduction 7 strategies in order to properly implement physical distancing. Id. at 17-18. 8 Plaintiff avers that at Mesa Verde, ICE and GEO failed to implement even the “most basic 9 protections.” (Doc. 61 p. 4). Mr. Ahn’s mental health deteriorated as he knew he was at high risk 10 of suffering from health complications if he contracted the virus. Mr. Ahn also knew that he had 11 a high likelihood of contracting COVID-19 at Mesa Verde. (Doc. 61-1 citing pp. 6-7). As a 12 result of conditions in Mesa Verde, Mr. Ahn participated in a peaceful hunger strike. (SAC ⁋35). 13 In April 2020, Mr. Ahn reported to a psychologist employed by GEO that he had feelings of 14 sadness, low energy, and trouble sleeping. The psychologist concluded Mr. Ahn had an 15 unspecified depressive disorder. Id. ⁋36. Mr. Ahn reported his previous suicide attempts to the 16 Mesa Verde medical staff and also expressed feelings of anxiety and not “want[ing] to live in this 17 life.” Id. ⁋⁋37-38. Mr. Ahn’s depression worsened due to the COVID-19 conditions present at 18 Mesa Verde as well as ICE’s repeated denial of his requests for release. Id. ⁋⁋40-41. 19 Mr. Ahn submitted multiple requests to ICE to release him from custody, all of which 20 were denied. Id. ⁋40. On May 11, 2020, after learning that one of his release requests was 21 denied, Mr. Ahn cried and became abnormally quiet. Id. ⁋41. Thereafter, on May 12, 2020, he 22 was admitted to Mercy Hospital in Bakersfield after struggling to breathe, experiencing chest 23 pain, and having liquid come out of his nose. Id. ⁋⁋ 42-45. 24 Mr. Ahn was discharged from Mercy Hospital on May 14, 2020, and returned to Mesa 25 Verde. Id. ⁋46. Plaintiff alleges that by the day of his return, Mr. Ahn’s depression and history 26 of suicidality were well-documented and both ICE and GEO knew or should have known about it. 27 (Doc. 61 p. 7). However, upon his return to Mesa Verde on May 14, he was placed in an isolation 1 for purposes of medical quarantine, though at the time, ICE and GEO were accepting transfers of 2 detainees to Mesa Verde from California prisons and placing them directly into the general 3 population without either quarantining them or testing them. Id. ⁋52. 4 Once in isolation, Mr. Ahn began experiencing suicidal ideation, which he expressed to 5 his brother. Id. ⁋56. During his time in solitary, Mr. Ahn informed his psychologist that he had 6 feelings of depression, but he was nevertheless kept in the isolated cell without any attempt to 7 find an alternative celling arrangement. Id. ⁋⁋54-55. On May 16, 2020, a clinical psychologist 8 subcontracted by GEO reported that Mr. Ahn appeared to be at “high suicidal risk if deported.” 9 Id. ⁋57. In addition, on the morning of May 17, 2020, Mr. Ahn’s lawyer emailed ICE requesting 10 that Mr. Ahn be returned to a dormitory, as isolation was proving detrimental to his mental health. 11 On that same day, a contracted medical provider also indicated that Mr. Ahn’s mental illness was 12 “severe” and that he had a high risk of suicide if deported. Id. ⁋⁋58-59. On the evening of May 13 17, 2020, Mr. Ahn was left unobserved in his isolation cell for a period of at least 18 minutes. 14 (SAC ⁋⁋61-62). During this period, he died by hanging himself with a bedsheet. Id. ⁋62. 15 The PBNDS 16 The PBNBDS contains requirements and protocols for accommodating detainees at risk of 17 significant self-harm or suicide. In addition, the PBNDS requires ICE and GEO to “act 18 affirmatively to prevent disability discrimination.” PBNDS at 344. “[I]t is incumbent upon 19 facility staff to identify detainees with impairments that are open, obvious, and apparent.” Id. at 20 348. Identification of detainees with potential disabilities may occur through medical or intake 21 screenings, or direct observation. Id. at 348. If a detainee with a “potential disability” is 22 identified, “the facility shall review the need for any necessary accommodations,” and provide 23 those accommodations “in an expeditious manner.” Id. at 348-49. Reasonable accommodations 24 include, “proper medication and medical treatment,” and “appropriate housing.” Id. at 347-48. 25 The PBNDS also contains protocols for preventing self-harm and suicide. Under the PBNDS, 26 detainees may be identified as being at risk for self-harm or suicide at the initial intake screening, 27 or at “any time while in ICE custody.” Id. at 333. “Staff must therefore remain vigilant in 1 Once a detainee is identified as “at-risk” of suicide or self-harm, staff must refer the 2 detainee for an evaluation by a mental health provider within 24 hours. Id. at 333-34. During the 3 identification and evaluation, security staff must place the detainee in a secure environment with 4 constant one-on-one visual observation. Id. If a suicidal detainee is placed in an “isolated 5 confinement setting,” the detainee must “receive continuous one-to-one monitoring, welfare 6 checks at least every 8 hours conducted by clinical staff, and daily mental health treatment by a 7 qualified clinician.” Id. at 334. “The isolation room must be suicide resistant, which requires that 8 it be free of objects and structural elements that could facilitate a suicide attempt.” Id. “Security 9 staff shall ensure that the room is inspected prior to the detainee’s placement so that there are no 10 objects that pose a threat to the detainee’s safety.” Id. “Any detainee who is believed to be in 11 need of seclusion, and/or restraint due to self-harming or suicidal behavior should be transferred 12 to a psychiatric facility, if deemed medically necessary to appropriately treat the needs of the 13 detainee.” Id. at 336. 14 The Claims at Issue 15 In the operative SAC, Plaintiff raises the following claims against the United States and 16 ICE that are the subject of Defendants’ motion to dismiss: (1) Negligence under the Federal Tort 17 Claims Act (“FTCA”) 28 U.S.C. § 1346(b) [Count Nine]; (2) Negligent Hiring under the FTCA 18 [Count Ten]; (3) Negligent Supervision & Retention under the FTCA [Count Eleven]; (4) 19 Negligence for Nondelegable Duties under the FTCA [Count Twelve]; (5) False Imprisonment 20 under the FTCA [Count Thirteen]; and (6) Intentional Infliction of Emotional Distress (“IIED”) 21 under the FTCA [Count Fourteen]. 22 II. Standard of Law 23 A. Subject Matter Jurisdiction – Rule 12(b)(1) 24 The Federal Rules of Civil Procedure provide for the dismissal of a complaint for lack of 25 subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “A Rule 12(b)(1) jurisdictional attack may 26 be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir 2004). “In a 27 facial attack, the challenger asserts that the allegations contained in the complaint are insufficient 1 challenger disputes the truth of the allegations that, by themselves, would otherwise invoke 2 federal jurisdiction.” Id. “In resolving a factual attack on jurisdiction,” the Court “may review 3 evidence beyond the complaint without converting the motion to dismiss into a motion for 4 summary judgment.” Id. The Court “need not presume the truthfulness of the plaintiff’s 5 allegations” in deciding a factual attack. Id. 6 B. Failure to State a Claim – Rule 12(b)(6) 7 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) asks a court to 8 dismiss a plaintiff’s complaint for failing “to state a claim upon which relief can be granted.” 9 Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) motion tests the complaint’s sufficiency. N. Star Int’l 10 v. Ariz. Corp. Comm’n., 720 F.2d 578, 581 (9th Cir. 1983) (citing Peck v. Hoff, 660 F.2d 371, 374 11 (8th Cir. 1981). A complaint may be dismissed as a matter of law either for lack of a cognizable 12 legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri 13 v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990) (citing Robertson v. Dean Witter 14 Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984)). 15 To survive a motion to dismiss under Rule 12(b)(6), a complaint must provide sufficient 16 factual matter to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 17 662, 678 (2009); see Fed. R. Civ. P. 8(a)(2) (a complaint must contain a short and plain statement 18 of the claim showing that the pleader is entitled to relief). A complaint satisfies the plausibility 19 requirement if it contains sufficient facts for the court to “draw [a] reasonable inference that the 20 defendant is liable for the misconduct alleged.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 21 (2007). 22 When considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court 23 must accept as true all allegations put forth in the complaint and construe all facts and inferences 24 in favor of the non-moving party. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted); 25 Hebbe v. Pliler, 627 F.3d 338, 340 (9th Cir. 2010). The complaint need not include “detailed 26 factual allegations,” but must include “more than an unadorned, the-defendant-unlawfully- 27 harmed-me accusation.” Iqbal, 556 U.S. at 678 (citations omitted). When dismissal is 1 defects in the pleading. Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009) 2 (citing Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)). 3 III. Discussion 4 A. Plaintiff’s Non-opposition 5 Plaintiff does not oppose Defendants’ motion to the extent of dismissing ICE as a named 6 defendant, dismissing Count Fourteen (IIED claim) from the SAC, and striking Plaintiff’s jury 7 trial demand for claims and punitive damages against the United States. See (Doc. 61 pp.13-14 8 n.3). Accordingly, this relief will be granted. 9 B. Plaintiff’s Claims under the FTCA 10 1. Standard of Law 11 “It is elementary that ‘[t]he United States, as sovereign, is immune from suit save as it 12 consents to be sued…, and the terms of its consent to be sued in any court define the court’s 13 jurisdiction to entertain the suit.’” United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting 14 United States v. Sherwood, 312 U.S. 584, 586 (1941)). “The United States has waived its 15 sovereign immunity with regard to tort liability under the Federal Tort Claims Act ‘under 16 circumstances where the United States, if a private person, would be liable to the claimant in 17 accordance with the law of the place where the act or omission occurred.’” Chadd v. United 18 States, 794 F.3d 1104, 1108 (9th Cir. 2015) (quoting 28 U.S.C. § 1346(b)(1)). But this waiver is 19 subject to certain exceptions. 20 Independent Contractor Exception: the United States’ waiver of immunity under the 21 FTCA expressly excludes liability for the actions of “any contractor with the United States.” 28 22 U.S.C. § 2671. Pursuant to this “independent contractor” exception, the United States has not 23 waived immunity from liability for the tortious acts of independent contractors. “The critical test 24 for distinguishing an agent from a contractor is the existence of federal authority to control and 25 supervise the ‘detailed physical performance’ and ‘day to day operations’ of the contractor, and 26 not whether the agency must comply with federal standards and regulations.” Carrillo v. United 27 States, 5 F.3d 1302, 1304 (9th Cir. 1993) (quoting Ducey v. United States, 713 F.2d 504, 516 (9th 1 controlled and supervised the contractor’s day-to-day operations. See Autery v. United States, 424 2 F.3d 944, 957 (9th Cir. 2005) (finding the government may be liable where it exercises 3 “substantial supervision over the day-to-day operations of the contractor”). 4 Importantly, the independent contractor exception “has no bearing on the United States’ 5 FTCA liability for its own acts or omissions.” Edison v. United States, 822 F.3d 510, 518 (9th 6 Cir. 2016) (emphasis in original). To determine whether the United States may be held liable 7 under the FTCA for its own acts or omissions, as is pled here, courts engage in a three-step 8 inquiry. Id. at 519. First, the court determines whether state law, in this case, California law, 9 would impose a duty of care on a private individual in a similar situation. Id. (citing 28 U.S.C. § 10 2674; Autery, 424 F.3d at 956). “[T]he extent of the United States’ liability under the FTCA is 11 generally determined by reference to state law.” Liebsack v. United States, 731 F.3d 850, 855 12 (9th Cir. 2013) (quoting Molzof v. United States, 502 U.S. 301, 304 (1992)). If state law does 13 impose such a duty, then the Court looks to the contract and the parties’ actions to determine 14 whether the United States retained a portion of that state law duty for which it could be held 15 directly liable. Edison, 822 F.3d at 519. Lastly, “even if it appears that the government delegated 16 all of its duties to the independent contractor, we ask whether California law imposed any 17 nondelegable duties on the government.” Id. (citing Yanez v. United States, 63 F.3d 870, 874-75 18 (9th Cir. 1995)). 19 Discretionary Function Exception: the United States’ waiver of immunity under the 20 FTCA also excludes alleged conduct that falls under the “discretionary function exception.” 28 21 U.S.C. § 2680(a). The discretionary function exception precludes claims against the United 22 States that are “based upon the exercise or performance or the failure to exercise or perform a 23 discretionary function or duty on the part of a federal agency or an employee of the government, 24 whether or not the discretion was abused.” Id. This exception protects “legislative and 25 administrative decisions grounded in social, economic, and political policy” from judicial second 26 guessing. See Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 (1988); United States v. 27 S.A. Empresa de Viacao Aeria Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984). 1 “discretionary function exception.” First, the court must determine whether the alleged conduct 2 involved an element of judgment or choice. See Berkovitz, 486 U.S. at 536. Second, if the 3 conduct involves some element of choice, then the court must determine whether the conduct 4 involves social, economic, or political policy considerations. See Gasho v. United States, 39 F.3d 5 1420, 1435 (9th Cir. 1994). When a statute or regulation allows a federal agent to act with 6 discretion, there is a “strong presumption” that the authorized act is based upon an underlying 7 policy decision. United States v. Gaubert, 499 U.S. 315, 324 (1991). Notably, to be protected 8 from liability, the challenged decision “need not actually be grounded in policy considerations” 9 so long as it is, “by its nature, susceptible to a policy analysis.” Miller v. United States, 163 F.3d 10 591, 593 (9th Cir. 1998). The determination of whether particular government conduct falls 11 within the discretionary function exception must focus on the “nature of the conduct, rather than 12 the status of the actor.” Gaubert, 499 U.S. at 322. 13 2. Analysis 14 (a) Count Nine - Negligence for Failure to Release Mr. Ahn 15 In Count Nine of the SAC, Plaintiff alleges Defendants breached their duty to protect and 16 treat with reasonable care Mr. Ahn by declining to release him from custody in light of the 17 COVID pandemic. (SAC ⁋188-91). 18 In moving to dismiss, Defendants argue that their judgment on whether to detain or 19 release an alien is not subject to judicial review pursuant to 8 U.S.C. § 1226(e). (Doc. 54-1 p. 9) 20 (citing Martinez v. United States, No. CV-13-6844 SJO (SHx), 2014 WL 12607839, at *5 (C.D. 21 Cal. Mar. 17, 2014)) (finding decision to not release plaintiff while removal proceedings were 22 pending was committed solely to Department of Homeland Security’s discretion). Defendants 23 further argue ICE is required to detain aliens who, like Mr. Ahn, are deportable because of an 24 aggravated felony conviction. Id. (citing 8 U.S.C. §§ 1226(c)(1)(C), 1227(a)(2)(A); Demore v. 25 Kim, 517-18 (2003)). 26 In opposing the motion to dismiss, Plaintiff asserts Defendants retained the discretion to 27 not remove a deportable alien and, accordingly, permissibly could have released Mr. Ahn pending 1 S.Ct. 1959, 1983 n.28 (2020)) (“the Executive always has discretion not to remove”). Plaintiff 2 further argues that since Mr. Ahn’s conditions of confinement were unconstitutional, Defendants 3 did not have authority (or obligation) to detain him and that the Court should review the 4 constitutionality of ICE’s actions. Id. 5 To determine whether the FTCA’s discretionary function exception operates to immunize 6 the government from a negligence claim, the Court “must identify which specific actions or 7 omissions the plaintiff alleges were negligent or wrongful.” Nanouk v. United States, 974 F.3d 8 941, 945 (9th Cir. 2020). Here, Plaintiff alleges Defendants were negligent in failing to protect 9 Mr. Ahn from COVID by their refusal to release him. Because the decision to detain an alien 10 pending resolution of immigration proceedings is explicitly committed to the discretion of the 11 Attorney General and implicates issues of foreign policy, the discretionary function exception 12 immunizes the government from an FTCA claim premised on the government’s negligent 13 detention and refusal to release an immigration detainee – as Plaintiff’s claim here is framed. See 14 Mirmehdi v. United States, 689 F.3d 975, 984 (9th Cir. 2012). Accord Blanco Ayala v. United 15 States, 982 F.3d 209, 215 (4th Cir. 2020) (applying discretionary function exception and 16 affirming dismissal of FTCA claim; noting that decisions to detain on immigration charges are 17 discretionary “because they depend on a further decision to prosecute and remove”). 18 Although Plaintiff alleges in other causes of action that certain aspects of Defendants’ 19 undertaking of the detention of Mr. Ahn amounted to deliberate indifference in violation of the 20 Eighth Amendment (see SAC Count One & Count Two), she acknowledges the government 21 possesses inherent discretion to detain someone for immigration offenses (e.g. Doc. 61 pp. 16-17) 22 and makes no allegation or advances any argument that the decision to detain Mr. Ahn was 23 anything but consistent with the Constitution and applicable statutes. Cf. Doc. 61 p. 17 (“Because 24 Mr. Ahn’s conditions of confinement were unconstitutional, … ICE did not have the authority, let 25 alone obligation, to detain him, and this Court may review the constitutionality of ICE’s 26 actions.”) (emphasis added). 27 While the Court acknowledges that leave to amend a dismissed cause of action should be 1 amendment would be futile.” Mirmehdi, 689 F.3d at 985 (citation omitted). Here, no additional 2 factual allegations could bring Plaintiff’s claim outside the FTCA’s grant of immunity for claims 3 such as Count Nine implicating the discretionary function exception. Id. Accordingly, because 4 amendment would be futile, Plaintiff will not be granted leave to amend Count Nine. 5 (b) Counts Ten & Eleven - Negligent Hiring & Supervision/Retention of GEO 6 In Count Ten of the SAC, Plaintiff alleges Defendants negligently contracted with GEO to 7 operate Mesa Verde (SAC ⁋⁋196-98). Specifically, Plaintiff alleges Defendants “acted 8 unreasonably in hiring” GEO because Defendants were aware of GEO’s history of failure to 9 maintain safe conditions at other facilities they operated. Id. ⁋197. Relatedly, in Count Eleven, 10 Plaintiff alleges Defendants negligently failed to exercise control over GEO in its operation of 11 Mesa Verde, including through inadequate inspections, assessment of penalties, and 12 implementation of COVID-19 protocols. Id. ⁋⁋203-04. 13 These claims do not seek to impute to Defendants the negligence of GEO – indeed, any 14 such claims would be barred by the independent contractor exception to the FTCA’s waiver of 15 sovereign immunity unless Defendants maintained actual control over GEO’s performance 16 (which, as discussed further below, they did not). See Autery, 425 F.3d at 956-57 (reiterating that 17 the FTCA does not permit claims based on vicarious liability absent a showing that the 18 government controlled and supervised the “detailed physical performance” and “day-to-day 19 operations” of the contractor). Instead, the claims seek to hold Defendants liable for their own 20 affirmative (or omitted) conduct in connection with hiring and supervising (or failing to 21 adequately supervise) GEO. 22 The discretionary function exception bars Plaintiff’s claims to the extent they are based on 23 Defendants’ hiring and continued retention of GEO. First, it is beyond debate that the 24 government’s hiring of a contactor (like GEO here) involves an element of judgment or choice, 25 thereby satisfying the first step in the discretionary function analysis. See Berkovitz, 486 U.S. at 26 536. Second, the government’s hiring of (and decision to retain and not terminate) a contractor 27 invariably involves social, economic, and/or political policy considerations. E.g., Vickers v. 1 training, and supervision of employees usually involve policy judgments of the type Congress 2 intended the discretionary function exception to shield.”). 3 It is a closer call whether Plaintiff may maintain a claim based on Defendants’ negligent 4 supervision of GEO. In moving to dismiss, Defendants argue the government remains immune 5 from liability under the FTCA for negligent supervision of GEO unless it “affirmatively 6 undertakes a duty to supervise in the first place.” (Doc. 54-1 p. 11) (quoting Chaffin v. United 7 States, 176 F.3d 1208, 1212 (9th Cir. 1999)). Defendants argue the government delegated all 8 day-to-day operations and decision making to GEO, including decisions related to the housing of 9 detainees, health care, mental health services, and detainee supervision. Id. See Nurse v. United 10 States, 226 F.3d 996, 1001 (9th Cir. 2000) (“allegedly negligent and reckless employment, 11 supervision and training” of government agents “fall squarely within the discretionary function 12 exception”). 13 In opposing dismissal of these claims, Plaintiff argues that Defendants’ supposed 14 delegation to GEO of all decision-making responsibilities does not absolve Defendants of their 15 residual duty to adequately supervise GEO’s performance under California law. (Doc. 61 p. 19). 16 Plaintiff further argues that Defendants retained under the operative contracts significant 17 oversight responsibilities for GEO’s compliance with relevant regulations (id. pp. 19-20)2 and 18 that the declarations Defendants filed in support of their motion suggesting they retained no or 19 minimal oversight are undermined by declarations filed in other COVID-related cases involving 20 Mesa Verde wherein they attest to far greater oversight over GEO-operated facilities. Id. p. 20. 21 The relevant contracts here indisputably vest GEO solely with the rights and 22 responsibilities to manage Mesa Verde’s operations and compliance with applicable statutes, 23 regulations, and the PBNDS. See (SAC ⁋⁋15-16); (Doc. 64-1 p. 63, noting “ICE’s Quality 24 25 2 In her opposition brief, Plaintiff asserted Defendants’ arguments concerning their supervision and oversight of Mesa Verde were “incomplete and unreliable” because they were 26 based in part on only selected portions of the operative contract. (Doc. 61 p. 20). However, Defendants filed in support of their reply brief what they characterize as all remaining 27 attachments to the contracts. (Doc. 64 p.9; Doc. 64-1). Although entitled under this Court’s Local Rules to object or otherwise respond to Defendants’ newly submitted evidence (see L.R. 1 Assurance Surveillance Plan (QASP) is based on the premise that the Service Provider, and not 2 the Government, is responsible for the day-to-day operation of the Facility and all the 3 management and quality control actions required to meet the terms of the Agreement.”). Thus, 4 GEO alone runs Mesa Verde’s operations, deciding whether it has the capability to accept 5 detainees with medical issues, how to classify detainees, where to house them, how to supervise 6 them, and how to ensure that they receive necessary medical treatment and intervention. (Doc. 7 54-3, Declaration of Natasha Nguyen [“Nguyen Decl.”] ⁋5). 8 Notwithstanding GEO managed day-to-day operations of Mesa Verde, Defendants 9 retained the right to “conduct periodic and unscheduled audits and inspections of contract 10 performance and the facility to ensure contract compliance.” See (Doc. 60 p. 13) (“DHS, ICE, 11 federal entities, and third-party inspectors will conduct periodic and unscheduled audits and 12 inspections of contract performance and the facility to ensure contract compliance.”). See also 13 (Doc. 64-1 p. 468, noting the government “will be responsible for monitoring, assessing, 14 recording, and reporting on the technical performance of the Contractor” and retains “overall 15 responsibility for evaluating the Contractor’s performance in areas of contract compliance, 16 contract administration, cost and property control.”). 17 Defendants’ retention of general oversight rights for GEO’s compliance with the contract 18 and applicable rules and policies by way of audits and evaluations does not impute to Defendants 19 control and supervision of GEO’s “detailed physical performance” necessary to pierce the 20 independent contractor exception to FTCA liability. See Autery, 425 F.3d at 956-57. See also 21 Bernal v. United States, No. SACV 16–02262–CJC(KSx), 2017 WL 7833611, at *3 (S.D. Cal. 22 Sept. 21, 2012) (“Neither the IGSA nor any other evidence indicates that Defendant supervised 23 the actual performance of tasks, rather than set the standards or objectives OCSD must fulfill.”); 24 Fekrat v. United States, No. CV 13-00594 MMM (PJWx), 2013 WL 12130585, at *6-7 (C.D. 25 Cal. Aug. 6, 2013) (“Although Fekrat cites evidence that BOP personnel contractually reserved 26 and exercised the right to inspect the institution, such inspections do not constitute day-to-day 27 control absent proactive conduct that extends beyond a supervisory role.”). 1 and Eleven as Defendants are immune from liability under the independent contractor and 2 discretionary function exceptions to the FTCA’s waiver of sovereign immunity. Because 3 Plaintiff’s theory of liability for Defendants’ alleged negligent hiring, supervision and retention of 4 GEO is undermined by the express language of the operative contract, the Court will not grant 5 leave to amend as amendment of these claims would be futile. See Mirmehdi, 689 F.3d at 985; 6 Morales-Alfaro v. United States Dep’t of Homeland Security, No. 20-cv-82-LAB (BGS), 2021 7 WL 1061171, at *4 (S.D. Cal. Mar. 17, 2021) (dismissing with prejudice under discretionary 8 function exception claims against government based on negligent supervision of facility 9 operator), appeal filed (Mar. 3, 2023). 10 (c) Count Twelve – Delegation to GEO of Nondelegable Duties 11 In Count Twelve of the SAC, Plaintiff alleges Defendants failed to protect Mr. Ahn 12 against COVID-19 hazards and enacted inadequate COVID-19 policies and protections, despite 13 the fact that Defendants owed Mr. Ahn non-delegable duties to mitigate such risks as a 14 “landowner” and “jailer.” See (SAC ⁋⁋207-12). Plaintiff alleges Defendants specifically 15 breached their duties in this regard by conducting “superficial and inconsistent inspections” of 16 GEO’s operations at Mesa Verde, “by maintaining high numbers of detention that required dense 17 living conditions, and by failing to put in place adequate COVID-19 prevention policies and 18 protocols.” Id. ⁋211. Plaintiff alleges these breaches “caused Mr. Ahn to suffer extreme mental 19 illness and distress that led him to commit suicide.” Id. ⁋212. 20 Unlike earlier-pleaded causes of action in the SAC, Count Twelve does not incorporate 21 the SAC’s introductory allegations or allegations from any of the other causes of action. Cf. 22 (SAC ⁋⁋188, 191, 201 [Counts Nine through Eleven] with ⁋207 [Count Twelve]). 23 In moving to dismiss this claim, Defendants argue that they do not own and, thus, are not 24 “landowners” of Mesa Verde – a status Plaintiff asserts imposes upon them non-delegable duties 25 they allegedly breached. (Doc. 54-1 p. 11). Defendants separately argue they do not retain non- 26 delegable duties of care based on their alleged status as “jailers,” as it is GEO – not the 27 government – that acts as jailer. (Doc. 64 pp. 12-13). In all events, Defendants argue, the 1 from alleged breach of non-delegable duties. (Doc. 54-1 pp. 12-14). 2 In her opposition, Plaintiff concedes that Defendants are not landowners but argues they 3 retained non-delegable duties to protect Mr. Ahn due to their status as “jailers,” relying largely on 4 the Court of Appeals’ decision in Edison v. United States (supra) and California state law 5 authorities holding that a party has a heightened, nondelegable duty of care to others where a 6 “peculiar risk” is implicated (such as the circumstances presented here in connection with 7 detention facility operations). (Doc. 61 p. 21-23). 8 The Court is unconvinced that Edison stands broadly for the proposition that California 9 law imputes to the government a nondelegable duty of care as to all detainees held in custody at 10 privately-operated detention facilities under the circumstances presented in this case. First, the 11 Court of Appeals’ holding in Edison plainly is tethered to California law imposing duties upon 12 landowners. See 822 F.3d at 519 (citing Cal. Civ. Code § 1714). The Bureau of Prisons (BOP) 13 was the owner of the correctional facility at issue there and, moreover, retained landowner rights 14 and responsibilities regarding new construction under the operative contract with the private 15 operator. As such, the Court of Appeals held that BOP owed nondelegable duties of care to 16 inmates housed within its facilities. 17 The Edison court acknowledged that its conclusion in this regard was “bolstered” by the 18 fact that California state courts have recognized a “special relationship” as between jailer and 19 inmate. Id. at 521. However, it is not clear from the Court’s opinion that any nondelegable duty 20 may derive solely from the jailer/inmate relationship where the defendant is not also a 21 “landowner” of the facility. 22 Moreover, the two cases the Edison court cited for the proposition that a special 23 relationship exists between inmate and jailer are factually distinct from this case. In Lawson v. 24 Superior Court, the plaintiff asserted claims against individual correctional staff members at the 25 facility in question. See 180 Cal.App.4th 1372, 1390 (2010) (noting that the two named 26 defendants were alleged to be a jailer and supervisor “at the facility”). Similarly, in Giraldo v. 27 Cal. Dep’t of Corrs. & Rehab., the plaintiff sued individual correctional, medical and other staff 1 Cal.App.4th 231, 240 (2008). The Court’s finding of “special relationship” there turned largely 2 on the fact that the inmate was in the “custody” of the “jailers” named as defendants. See, e.g., id. 3 at 246 (citing Restatement Second of Torts section titled, “Duty of Person Having Custody of 4 Another to Control Conduct of Third Persons”). Importantly, the Giraldo court remanded the 5 case to the trial court for further proceedings with the following caveat: “Who comes within the 6 category of jailer is not before us, nor is the question of what law pertains to non-jailer 7 defendants – questions that could not be decided on this record in any event.” Id. at 253. 8 Thus, while these cases reflect that California state law assigns to both landowners and 9 correctional staff certain duties of care in tort, Plaintiff has not identified any state law or 10 authority that imposes nondelegable duties of care upon parties (such as Defendants here) who 11 are neither landowners nor “jailers” in the traditional sense – e.g., assigned to a facility holding 12 custody of detained inmates. 13 Although Plaintiff’s reliance on Morales-Alfaro (Doc. 61 pp. 22) is apt insofar as that case 14 presents similar circumstances as exist here, Plaintiff’s arguments concerning that case are not 15 persuasive. In Morales-Alfaro, an immigration detainee filed a complaint asserting negligence 16 claims against the contracted detention facility operator and the government. The plaintiff 17 asserted she suffered a miscarriage because the defendants denied her access to medical care and 18 maintained substandard conditions of confinement. The plaintiff alleged the government knew 19 about the contractor’s incompetence and poor management of the facility and failed to do 20 anything to correct it. 2021 WL 1061171, at *3. On the government’s motion to dismiss, the 21 Morales-Alfaro court acknowledged that the independent contractor exception does not operate to 22 immunize the government from FTCA claims based on its alleged breach of any nondelegable 23 duty of care under California state law. Id. (citing Edison, 822 F.3d at 21-22). Nevertheless, the 24 court applied the discretionary function exception to dismiss the negligence claims against the 25 government. Id. at *4-5. The Morales-Alfaro court did not expressly decide whether, in fact, the 26 government retained any nondelegable duties in that case. 27 That Defendants are not bound by a nondelegable special duty of care to Mr. Ahn given 1 California law directly governing contractor liability. Specifically: 2 “Under California law, where the factual basis for the claim is that the hirer failed to exercise a general supervisory power to require the contractor to correct an 3 unsafe procedure or condition of the contractor’s own making, and there is no allegation that the hirer’s conduct contributed in any way to the contractor’s 4 negligent performance by, e.g., inducing injurious action or inaction through actual direction, the government has no duty to Plaintiffs for merely failing to 5 exercise a general supervisory power to prevent the creation or continuation of a hazardous practice, or by failing to exercise retained control.” 6 7 Alvarado v. United States, No. CV–F–09–243 LJO SMS, 2010 WL 300139, at *8 (E.D. Cal. July 8 29, 2010) (relying on Hooker v. Dept. of Trans., 27 Cal.4th 198, 202 (2002)). 9 Notwithstanding the Court finds Plaintiff’s Twelfth Cause of action fails to state a claim 10 pursuant to Rule 12(b)(6), it is not clear that the claim is beyond remediation. Accordingly, 11 Plaintiff will be granted leave to amend to assert a claim based on Defendants’ negligence in 12 breaching some other nondelegable or nondelegated duty. 13 (d) Count Thirteen – False Imprisonment 14 In Count Thirteen of the SAC, Plaintiff asserts a false imprisonment claim that alleges 15 Defendants’ detention of Mr. Ahn for approximately three months prior to his death by suicide 16 was without lawful privilege and undertaken in a manner that placed him at increased risk of 17 harm (specifically, from COVID and resulting distress and suicide). (SAC ⁋⁋218-18). 18 In moving to dismiss, Defendants argue that contrary to Plaintiff’s pleading, they had 19 lawful privilege to order Mr. Ahn’s confinement. (Doc. 54-1 p. 23) (citing Demore, 538 U.S. at 20 517-18). In opposing dismissal, Plaintiff maintains her false imprisonment claim is adequately 21 pleaded because it asserts the imprisonment of Mr. Ahn was unconstitutional and that, in all 22 events, Defendants retained discretion to release him. (Doc. 61 p. 35). 23 Under California law, a false imprisonment claim requires the “(1) nonconsensual, 24 intentional confinement of a person, (2) without lawful privilege, (3) for an appreciable period of 25 time, however brief.” Bocanegra v. Jakubowski, 241 Cal.App.4th 848, 855 (2015). 26 Plaintiff cannot establish that Defendants’ confinement of Mr. Ahn was “without lawful 27 privilege.” Even assuming Defendants retained discretion “not to remove” Mr. Ahn and, thus, to 1 | discretion. Sutherland v. Chertoff, No. CV 08-03458 JVS(PJWx), 2009 WL 10698908, at *5 2 | (C.D. Cal. Feb. 20, 2009) (dismissing false imprisonment claim with prejudice because § 1226(a) 3 | and related regulations authorize ICE to arrest and detain deportable aliens) 4 | IV. Conclusion 5 For the foregoing reasons, the Court hereby GRANTS Defendants’ motion to dismiss 6 | (Doc. 54) as follows: 7 1. Defendant ICE is dismissed with prejudice. 8 2. Counts Nine, Ten, Eleven, Thirteen and Fourteen are dismissed with prejudice. 9 3. Count Twelve is dismissed without prejudice and with leave to amend. 10 4. Plaintiff is granted leave to amend Count Twelve to the extent of remedying the 11 || deficiencies noted herein. Any Third Amended Complaint shall be filed within 21 days of entry 12 | of this order, and Defendants’ response shall be filed within 14 days thereafter. See Fed. R. Civ. 13 | P. 15(a)(3). The Court will set a scheduling conference once the pleadings have settled. 14 | IT IS SO ORDERED. ' | Dated: _ March 25, 2024 | hr 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 18