INTRODUCTION

26 Pending before the Court is Defendant United States of America, et al.’s 27 (collectively “Defendants”) motion to dismiss Plaintiff John O’Donnell’s (“Plaintiff”) 28 1 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (“Bivens”), Federal 2 Torts Claim Act (“FTCA”), and 42 U.S.C. § 1983 (“§ 1983”) claims. See generally Doc. 3 No. 11. Plaintiff filed a response to Defendants’ motion and Defendants filed a reply. See 4 Docs. No. 13, 15. Having carefully considered the pleadings in this action, and for the 5 reasons set forth below, the Court hereby GRANTS Defendants’ motion to dismiss with 6 leave to amend. 7 BACKGROUND 8 Plaintiff alleges that sometime in November 2016, unidentified Bureau of Land 9 Management (“BLM”) officers arrived at Plaintiff’s truck camper. Doc. No. 5 at 5. The 10 truck camper was Plaintiff’s temporary residence and was located on federal land outside 11 of Ocotillo Springs, California. Id. The BLM officers “falsely accus[ed] [Plaintiff] of 12 various offenses, including drug use and littering.” Id. The BLM officers then conducted a 13 “dog search” and entered Plaintiff’s residence. Id. During the search, Plaintiff alleges BLM 14 officers detained him and did not allow him to enter his residence. Id. Plaintiff claims the 15 BLM officers “stole bottles of his medication, cigarettes, and a plaque signed by celebrity 16 skate border Tony Hawk.” Id. 17 Plaintiff alleges several days later, “BLM officers again arrived at [Plaintiff’s] 18 campsite to harass him” and accuse him of littering. Id. Plaintiff then moved residences 19 because of the continued harassment. Id. at 6. Soon after, Plaintiff “learned that BLM 20 officers had been asking several people in the town of Ocotillo about his whereabouts.” Id. 21 Then, “vehicles began to drive across [Plaintiff]’s property in the middle of the night and 22 shined bright lights directly into his trailer.” Id. This continued until Plaintiff’s family hired 23 private security for his residence. Id. Upon the departure of security, however, the 24 harassment continued. Id. Plaintiff further contends BLM officers and Imperial County 25 Sheriff’s (“ICS”) officers combined forces to harass and persecute him. Id. 26 On July 26, 2016, Plaintiff filed a complaint against Defendants alleging various 27 causes of action. See Doc. No. 1. On November 7, 2019, Plaintiff filed a Second Amended 28 Complaint (“SAC”) alleging: (1) Bivens claim for violation of 5th amendment rights 1 against Defendants; (2) Bivens claim for violation of 4th amendment rights against 2 Defendants; (3) FTCA claim against Defendants Michael Nedd (“Nedd”), William Perry 3 Pendley (“Pendley”), David Bernhardt (“Bernhardt”), A. Stewart (“Stewart”) and the 4 United States of America (“United States”); and (4) § 1983 claim against Defendants. Id. 5 On January 22, 2020, Defendant United States filed a motion to dismiss Plaintiff’s SAC 6 for lack of subject matter jurisdiction and failure to state a claim. See generally Doc. No. 7 11. On February 21, 2020, Defendants Imperial County, Imperial County Sheriff’s Office, 8 and Sheriff Raymond Loera filed a notice of non-opposition to Defendant United States’ 9 motion to dismiss. See Doc. No. 13. Plaintiff filed a response in opposition to Defendants’ 10 motion and Defendants filed a reply. See Doc. Nos. 13, 15. 11 LEGAL STANDARD 12 Defendants seek dismissal pursuant to Rule 12(b)(1) and 12(b)(6). Under Rule 13 12(b)(1), a defendant may seek to dismiss a complaint for “lack of jurisdiction over the 14 subject matter.” Fed. R. Civ. P. 12(b)(1). Federal courts are presumptively without 15 jurisdiction over civil actions and the burden of establishing the contrary rests upon the 16 party asserting jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 17 375, 377 (1994); see also Stock West, Inc. v. Confederated Tribes of the Colville 18 Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). Further, Rule 12(b)(6) tests the 19 sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). 20 Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal 21 theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see 22 Neitzke v. Williams, 490 U.S. 319, 326 (1989) (“Rule 12(b)(6) authorizes a court to dismiss 23 a claim on the basis of a dispositive issue of law”). 24 To survive a motion to dismiss, “a complaint must contain sufficient factual matter, 25 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 26 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 547). A claim is facially plausible 27 when the factual allegations permit “the court to draw the reasonable inference that the 28 defendant is liable for the misconduct alleged.” Id. In other words, “the non-conclusory 1 ‘factual content’ and reasonable inferences from that content, must be plausibly suggestive 2 of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 3 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). “Determining whether a complaint states 4 a plausible claim for relief will be a context-specific task that requires the reviewing court 5 to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. 6 A motion to dismiss for lack of subject matter jurisdiction may be “facial” or 7 “factual.” See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a 8 facial attack, the challenger asserts that the allegations contained in a complaint are 9 insufficient on their face to invoke federal jurisdiction, whereas in a factual attack, the 10 challenger disputes the truth of the allegations that, by themselves, would otherwise invoke 11 federal jurisdiction. See Id. If the defendant brings a facial attack, a district court must 12 assume that the factual allegations in the complaint are true and construe them in the light 13 most favorable to the plaintiff. See United States v. One 1997 Mercedes E420, 175 F.3d 14 1129, 1130-31 & n.1 (9th Cir. 1999); see also Warren v. Fox Family Worldwide, Inc., 328 15 F.3d 1136, 1139 (9th Cir. 2003). A Rule 12(b)(1) motion will be granted if, on its face, the 16 complaint fails to allege grounds for federal subject matter jurisdiction as required by Rule 17 8(a) of the Federal Rules of Civil Procedure. See Warren v. Fox Family Worldwide, Inc. 18 328 F.3d 1136, 1139 (9th Cir. 2003); see also Morrison v. Amway Corp. 323 F.3d 920, 924 19 n. 5 (11th Cir. 2003). 20 In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the 21 truth of all factual allegations and must construe all inferences from them in the light most 22 favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); 23 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal 24 conclusions need not be taken as true merely because they are cast in the form of factual 25 allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); Western Mining 26 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). When ruling on a motion to dismiss, 27 the court may consider the facts alleged in the complaint, documents attached to the 28 complaint, documents relied upon but not attached to the complaint when authenticity is 1 not contested and matters of which the court takes judicial notice. Lee v. City of Los 2 Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). If a court determines that a complaint fails 3 to state a claim, the court should grant leave to amend unless it determines that the pleading 4 could not possibly be cured by the allegation of other facts. See Doe v. United States, 58 5 F.3d 494, 497 (9th Cir. 1995); Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th 6 Cir. 2009). 7 DISCUSSION 8 A. Bivens Claims Against Defendant United States 9 Defendants argue that the United States enjoys immunity from suit unless immunity 10 is expressly waived. Doc. No. 11 at 10. Defendants allege the court lacks subject matter 11 jurisdiction because the United States has made no such waiver for Plaintiff’s Bivens claims 12 against the Untied States. Id. Plaintiff concedes the United States is not a proper Defendant. 13 Doc. No. 14 at 3. Accordingly, the Court GRANTS Defendants’ motion to dismiss 14 Plaintiff’s first and second causes of action against the United States. 15 B. Bivens Claims Against Defendants Nedd, Pendley, and Bernhardt 16 Defendants argue that Plaintiff failed to properly state Bivens claims against 17 Defendants Nedd, Pendley and Bernhardt. Doc. No. 11 at 11. Defendants state Plaintiff’s 18 claims are improperly based on Defendants’ official capacity, or in the alternative, rely on 19 a theory of respondeat superior. Id. at 12. Further, Defendants allege that without specific 20 claims regarding Defendants conduct in their individual capacity, the Court should dismiss 21 the Bivens claims. Id. Plaintiff argues the Bivens claims have been brought against 22 Defendants Nedd, Pendley and Bernhardt in their individual capacity. Doc. No. 14 at 6. 23 Plaintiff acknowledges respondeat superior liability has not been recognized in Bivens 24 actions, but states “[Plaintiff] has no other way to obtain [the needed] discovery” to 25 substantiate the claims. Id. This needed discovery includes: “(1) the number of officers that 26 were involved in [Plaintiff’s alleged] harassment; (2) the names of the officers involved in 27 [Plaintiff’s alleged] harassment; (3) reports relat[ed] to [Plaintiff’s alleged] harassment, or 28 (4) video/audio files related to [Plaintiff’s alleged] harassment.” Id. Plaintiff then alleges, 1 the BLM and the Department of the Interior are in possession of this evidence. Id. As such, 2 Plaintiff has alleged Bivens claims against Defendants Nedd and Pendley because they are 3 heads of the BLM. Id. Plaintiff also has alleged Bivens claims against Bernhardt because 4 he is the Secretary of the Interior. Id. 5 In a Bivens action, the plaintiff “must plead that each Government-official 6 defendant, through his own individual actions, has violated the Constitution.” Iqbal, 556 7 U.S. at 676 (citing Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279 (1979)). 8 Bivens actions are “not designed to hold officers responsible for acts of their subordinates.” 9 Ziglar v. Abbasi, 137 S. Ct. 1843, 1849 (2017). As such, “vicarious liability is inapplicable 10 to Bivens” actions. Iqbal, 556 U.S. at 676. Further, “[g]overnment officials may not be held 11 liable for the unconstitutional conduct of their subordinates under a theory of respondeat 12 superior.” Id. at 676. Rather, a plaintiff must “plead and prove that the defendant acted 13 with discriminatory purpose.” Starr v. Baca, 652 F.3d 1202, 1206 (9th Cir. 2011) (quoting 14 Iqbal, 556 U.S. at 676). 15 Here, Plaintiff has not plausibly pled Defendants Nedd, Pendley, or Bernhardt, 16 through their own actions, violated Plaintiff’s constitutional rights. Plaintiff’s SAC 17 contains no allegations that Defendants Nedd, Pendley, or Bernhardt were involved or 18 knew of Plaintiff’s alleged harassment. Additionally, as Plaintiff concedes, there is no 19 precedent for respondeat superior liability in a Bivens action. Doc. No. 14 at 6. Instead, 20 Plaintiff asserts the BLM and Department of the Interior hold evidence of Plaintiff’s 21 harassment. As such, Plaintiff argues these entities’ respective heads are proper defendants. 22 However, Plaintiff’s need for discovery does not allow him to circumvent stating a 23 plausible claim. Keates v. Koile, 883 F.3d 1228, 1242 n.3 (9th Cir. 2018) (citing Iqbal, 556 24 U.S. at 678–79). 25 Accordingly, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s first and 26 second causes of action against Defendants Nedd, Pendley, and Bernhardt, with leave to 27 amend. 28 /// 1 C. FTCA Claim Against Defendants Nedd, Pendley, Bernhardt, and Stewart 2 Next, Defendants argue the United States is the only proper defendant in Plaintiff’s 3 FTCA claim. Doc. No. 11 at 13. Defendants state the FTCA allows for a “suit against the 4 United States [as] the exclusive remedy for torts committed by federal agencies and federal 5 employees….” Id. (citing 28 U.S.C. § 2679 (b)(1)). Plaintiff concedes the United States is 6 the only proper defendant under the FTCA. Doc. No. 14 at 3. Accordingly, the Court 7 GRANTS Defendants’ motion to dismiss Plaintiff’s third cause of action against 8 Defendants Nedd, Pendley, Bernhardt, and Stewart. 9 D. Section 1983 Claim Against Defendants Nedd, Pendley, Bernhardt, Stewart, 10 and the United States 11 Finally, Defendants argue Plaintiff’s §1983 claim cannot be brought against 12 Defendants Nedd, Pendley, Bernhardt, Stewart, or the United States because of their 13 positions as federal government actors. See Doc. No. 11 at 14. Defendants contend that 14 “[f]ederal officials can be liable under § 1983 only where there is a sufficiently close nexus 15 between their challenged actions and State conduct.” Id. Defendants allege that “no such 16 nexus exists here” and the Court should accordingly dismiss the federal government actors 17 from the claim. Id. Plaintiff concedes that the § 1983 claim cannot stand against Defendants 18 Nedd, Pendley, Bernhardt, Stewart, and the United States. See Doc. No. 14 at 7. 19 Accordingly, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s fourth cause 20 of action against Defendants Nedd, Pendley, Bernhardt, Stewart, and the United States. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// | CONCLUSION 2 For the reasons set forth above, IT IS HEREBY ORDERED: 3 e Plaintiff's first and second causes of action against Defendant United States 4 are DISMISSED with prejudice. 5 e Plaintiff's first and second causes of action against Defendants Nedd, 6 Pendley, and Bernhardt are DISMISSED with leave to amend. 7 e Plaintiff's third cause of action against Defendants Nedd, Pendley, Bernhardt, 8 and Stewart is DISMISSED with prejudice. 9 e Plaintiff's fourth cause of action against Defendants Nedd, Pendley, 10 Bernhardt, Stewart, and the United States is DISMISSED with prejudice. I] e Plaintiff may file an amended Complaint on or before December 10, 2020. 12 IT IS SO ORDERED. 13 14 15 || DATED: November 10, 2020 16 17 le M sto => 18 Jghn A. Houston 19 WMnited States District Judge 20 21 22 23 24 25 26 27 28