I. BACKGROUND

26 Joel Reyes Munoz (“Decedent”), an undocumented individual, died after falling 27 from the high border barrier between Mexico and the United States. Compl. at 2. He fell 28 1 from the high border barrier and sustained significant blunt force injuries. Id. Shortly 2 after his fall, Border Patrol agents arrested Decedent and Plaintiffs allege that agents 3 witnessed his injuries and medical condition, and negligently and with deliberate 4 indifference failed to render or summon medical assistance. Compl. ¶ 10. Plaintiffs 5 further allege that agents held decedent in custody and failed to take reasonable steps to 6 obtain medical care despite the obvious need for immediate medical care and failed to 7 seek emergency treatment, until after decedent lost consciousness and stopped breathing. 8 Compl. ¶ 21. Plaintiffs filed a complaint alleging three causes of action: negligence, 9 violation of the Bane Act and wrongful death. Defendants motion tests the sufficiency of 10 the Bane Act cause of action only. 11 II. LEGAL STANDARD 12 A. Federal Rule of Civil Procedure 12(b)(1) 13 Federal Rule of Civil Procedure 12(b)(1) permits a dismissal of an action when a 14 plaintiff fails to properly plead subject matter jurisdiction in the complaint. Fed. R. Civ. 15 Pro. 12(b)(1). A Rule 12(b)(1) jurisdictional attack may be facial or factual. Safe Air for 16 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial attack, the challenger 17 asserts that the allegations contained in a complaint are insufficient on their face to 18 invoke federal jurisdiction. Id. By contrast, in a factual attack, the challenger disputes the 19 truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction. 20 Id. In resolving a factual attack on jurisdiction, the district court may review evidence 21 beyond the complaint without converting the motion to dismiss into a motion for 22 summary judgment. Id. Once the moving party converts the motion to dismiss into a 23 factual motion by presenting affidavits or other evidence properly brought before the 24 court, the party opposing the motion must furnish affidavits or other evidence necessary 25 to satisfy its burden of establishing subject matter jurisdiction. Id. The plaintiff bears the 26 burden of establishing subject matter jurisdiction. Kokkonen v. Guardian Life Ins. Co. of 27 Am., 511 U.S. 375, 377 (1994). 28 / / / 1 B. Federal Rule of Civil Procedure 12(b)(6) 2 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to 3 state a claim tests the legal sufficiency of a plaintiff’s claim. Navarro v. Block, 250 F.3d 4 729, 732 (9th Cir. 2001). When considering the motion, the court must accept as true all 5 well-pleaded factual allegations in the complaint. Bell Atlantic Corp. v. Twombly, 550 6 U.S. 544, 555 (2007). The court need not accept as true legal conclusions cast as factual 7 allegations. Id.; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[t]hreadbare recitals of the 8 elements of a cause of action, supported by mere conclusory statements” are insufficient). 9 A complaint must “state a claim for relief that is plausible on its face.” Twombly, 10 550 U.S. at 570. To survive a motion to dismiss, a complaint must include non- 11 conclusory factual content. Id. at 555; Iqbal, 556 U.S. at 679. The facts and the 12 reasonable inferences drawn from those facts must show a plausible—not just a 13 possible—claim for relief. Twombly, 550 U.S. at 556; Iqbal, 556 U.S. at 679; Moss v. 14 U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The focus is on the complaint, as 15 opposed to any new facts alleged in, for example, the opposition to a defendant’s motion 16 to dismiss. See Schneider v. California Dep’t of Corrections, 151 F.3d 1194, 1197 n.1 17 (9th Cir. 1998), reversed and remanded on other grounds as stated in 345 F.3d 716 (9th 18 Cir. 2003). “Determining whether a complaint states a plausible claim for relief [is] . . . a 19 context-specific task that requires the reviewing court to draw on its judicial experience 20 and common sense.” Iqbal, 556 U.S. at 679. The “mere possibility of misconduct” or 21 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 22 this plausibility standard. Id.; see also Moss, 572 F.3d at 969. 23 III. LEGAL ANALYSIS 24 A. Bane Act 25 The United States moves to dismiss the second cause of action in Plaintiffs’ 26 complaint arguing the Court lacks subject matter jurisdiction to hear the claim brought 27 under California’s Bane Act, insofar as it is premised on alleged federal or state 28 constitutional violations. The United States also argues that Plaintiffs fail to properly 1 plead the elements of the claim. Further, the United States moves for an order dismissing 2 or, in the alternative, striking, Plaintiffs’ demand for attorney’s fees pursuant to Federal 3 Rules of Civil Procedure 12(b)(1), 12(b)(6) and 12(f). 4 Plaintiffs contend that their Bane Act claim asserted under the FTCA is based on a 5 violation of the California Constitution, specifically Mr. Reyes Munoz’ “rights to bodily 6 integrity and to be free from harm imposed by deliberately indifferent failure or refusal to 7 render aid.” Compl. ¶ 32. 8 The Bane Act provides a right to relief when someone “interferes by threats, 9 intimidation, or coercion … with the exercise or enjoyment by any individual or 10 individuals of rights secured by the Constitution or laws of the United States, or of the 11 rights secured by the Constitution or laws of [California].” Cal. Civ. Code § 52.1. To 12 prevail on a Bane Act claim, a plaintiff must therefore prove (1) a violation of a 13 constitutional or statutory right (2) by intimidation, threats or coercion. Rodriguez v. 14 Cnty. of Los Angeles, 96 F. Supp. 3d 990, 998 (C.D. Cal. 2014) (citing Venegas v. Cnty. 15 of Los Angeles, 153 Cal. App.4th 1230, 1242 (2007)). A Bane Act claim is allowed to 16 proceed as long as the claim relies on a proper constitutional claim. Parra v. Hernandez, 17 No. 08cv0191-H (CAB), 2009 WL 3818376, at *3 (S.D. Cal. Nov. 13, 2009). 18 Both parties agree that Plaintiff cannot maintain a Bane Act claim pursuant to the 19 FTCA that is premised on federal constitutional violations. See F.D.I.C. v. Meyer, 510 20 U.S. 471, 478 (1994). The question becomes, whether a state constitutional violation may 21 be the basis of a Bane Act claim against the United States brought under the FTCA? The 22 courts throughout this circuit are split on this question. The United States argues that a 23 Bane Act claim premised on state constitutional violations cannot proceed. Plaintiffs 24 argue that the FTCA permits a Bane Act claim premised on a state constitutional 25 violation. 26 The Court agrees with the United States’ argument. Plaintiffs cannot bring a Bane 27 Act claim against the United States based on a state constitutional violation. Creating a 28 waiver of sovereign immunity against the United States for state constitutional claims 1 disregards the purpose of the FTCA. See Agro Dynamics, LLC v. United States, No. 20- 2 cv-2082-JAH-KSC, 2023 WL 6130813, at *11 (S.D. Cal. Sep. 19, 2023). “Permitting a 3 plaintiff to sue the United States for a violation of a state constitutional provision, rather 4 than a federal constitutional provision, would create the same result the statute intended 5 to prevent – holding the United States liable for a constitutional tort.” Blanchard v. Cnty. 6 Of Los Angeles, No. 8:19-cv-02438 JVS (DFM), 2022 WL 17081308, at *3 (C.D. Cal. 7 Aug. 25, 2022). 8 The Supreme Court has stated, because Congress created a limited waiver of 9 sovereign immunity in the FTCA, “the United States simply has not rendered itself liable 10 under section 1346(b) for constitutional torts claims.” Meyer, 510 U.S. at 478. A claim is 11 actionable under section 1346(b) if it alleges that the United States would be liable as a 12 private person in accordance with the law of the place where the act or omission 13 occurred. Id. at 477. Claims for violation of a constitutional right to bodily integrity and 14 to be free from harm imposed by deliberately indifferent failure or refusal to render aid is 15 not a tort that a private individual can commit, so it cannot be the basis of an FTCA suit. 16 Plaintiff cites several cases to support the reasoning that, if a Bane Act claim is not 17 solely premised upon a federal constitutional violation, it is permissible. See e.g., Peralta 18 v. United States, 475 F. Supp.3d 1086, 1098 (C.D. Cal. 2020); Reyes v. United States, No. 19 3:20-cv-01752-WQH-LL, 2021 WL 615045, at *3-4 (S.D. Cal. Feb. 16, 2021); Escobar 20 Mejia v. United States, No. 20-cv-2454-L-KSC, 2022 WL 3084587, at *4 (S.D. Cal. Aug. 21 3, 2022). In reaching that conclusion, these cases primarily rely on Xue Lu v. Powell, 621 22 F.3d 944 (9th Cir. 2010). 23 In Xue Lu, the court found that the plaintiff alleged sufficient facts to state a claim 24 under the Bane Act based on the Defendant’s “attempted … interference with the 25 plaintiffs’ right to asylum.” Id. at 950. However, Xue Lu did not address the issue of 26 whether a Bane Act claim alleging a violation of the California Constitution may serve as 27 the basis of an FTCA suit against the federal government. Blanchard, 2022 WL 28 17081308, at *2-3. Further, none of the cases cited by Plaintiff examined the statutory 1 text of the FTCA or explains why it would make sense for Congress to waive the United 2 States’ sovereign immunity in a situation where, supposing it were a private litigant, it 3 could not be subject to suit. Agro Dynamics, 2023 WL 6130813, at *12. The Court 4 therefore finds Blanchard and Agro Dynamics persuasive and follows their reasoning. 5 In their opposition, Plaintiffs allege that their Bane Act claim is also premised on a 6 state statutory basis, California Civil Code § 43. ECF No. 5 at 5-6. However, as the 7 United States correctly points out, the complaint makes no reference to California Civil 8 Code § 43. “The complaint may not be amended by the briefs in opposition to a motion.” 9 Apple Inc. v. Allan & Associates Limited, 445 F. Supp. 3d 42, 59 (N.D. Cal. 2020) 10 (citation and quotation omitted). 11 Therefore, the Court DISMISSES with prejudice the Bane Act claim in the 12 second cause of action due to lack of subject matter jurisdiction to the extent that it 13 pertains to alleged violations of Plaintiffs’ federal or state constitutional rights. See Lopez 14 v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (holding that if a Rule 12(b)(6) motion is 15 granted, a “district court should grant leave to amend ... unless it determines that the 16 pleading could not possibly be cured by the allegation of other facts” such that granting 17 leave would be futile). Since the Court dismissed with prejudice due to lack of subject 18 matter jurisdiction, the Court declines to address the United States’ argument that 19 Plaintiffs failed to properly plead the elements of a Bane Act claim. 20 B. Motion to Strike Attorney’s Fees 21 The United States argues, and Plaintiffs do not contest, that Plaintiffs’ demand for 22 attorney’s fees should be stricken because the FTCA does not provide for such remedies. 23 The Court agrees. “The FTCA does not contain an express waiver of sovereign immunity 24 for attorneys’ fees,” and therefore no wavier should be implied. Anderson v. United 25 States, 127 F.3d 1190, 1191 (9th Cir. 1997). Accordingly, Plaintiffs’ demand for 26 attorney’s fees is stricken. 27 / / / 28 / / / l IV. CONCLUSION 2 For the foregoing reasons, the Court GRANTS the motion to dismiss the Bane Act 3 claim with prejudice due to lack of subject matter jurisdiction to the extent that it 4 || pertains to alleged violations of Plaintiffs’ federal or state constitutional rights. Further, 5 Court STRIKES Plaintiffs’ demand for attorney’s fees. 6 IT IS SO ORDERED. 7 ||Dated: February 13, 2024 8 ww 4 9 Honorable James E. Sunmons Jr. 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28