MT v. United States

1

MT, a minor by and through his Guardian Ad Litem VIKTORIIA ZUBKOVA; AT a minor by and through his Guardian Ad Litem VIKTORIIA ZUBKOVA; and LEYLA BOROVIK, Plaintiffs, v. UNITED STATES OF AMERICA; TRENT E. PETERSEN; and DOES 1 through 30, inclusive, Defendants.

No. 3:22-cv-00171-BEN-KSC

United States District Court, S.D. California

March 10, 2023

ORDER GRANTING-IN-PART DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT

[ECF No. 10]

HON ROGER T. BENITEZ, DISTRICT JUDGE

I. INTRODUCTION

Plaintiffs Leyla Borovik, and both MT and AT, minors by and through their Guardian Ad Litem Viktoriia Zubkova, bring this action against Defendants the United States of America (the “United States”) and Trent E. Peterson (“Agent Peterson”). ECF No. 4. Before the Court is Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint. ECF No. 10. The Motion was submitted on the papers without oral argument pursuant to Civil Local Rule 7.1(d)(1) and Rule 78(b) of the Federal Rules of Civil Procedure. See ECF No. 13. After considering the papers submitted, supporting documentation, and applicable law, the Court GRANTS-IN-PART the Motion to Dismiss.

II. BACKGROUND

This case arises from alleged events that occurred during a raid by the Federal Bureau of Investigation (“FBI”) of Plaintiffs' home.

A. Statement of Facts^[1]

On October 25, 2019, at 6:00 a.m., FBI agents, including supervising “FBI Agent, Trent E. Peterson, conducted a paramilitary SWAT raid at Plaintiffs' home with attack canines, assault weapons, bull horns, and high intensity lights . . . to execute an arrest and search warrant for alleged financial crimes” committed by Plaintiffs' father. ECF No. 4 (“FAC”) at 2, ¶ 2; 6, ¶ 20. “Tuchinsky and his business partners had been charged with bribing a Federal Express supervisor to obtain routes for their package delivery trucking companies in Utah.” Id. at 7-8, ¶ 28.

In executing the warrants, Defendants forcefully banged on the door “in a manner that would lead a reasonable person to believe the door was going to be involuntarily breached,” and “screamed, ‘FBI, open the door.'” Id. at 6, ¶ 20. Plaintiffs' father, Yevgeny Tuchinsky, peacefully opened the door and “was held at gunpoint with bright lights flashing in his face while numerous agents stormed the interior of the home in full paramilitary SWAT gear and assault weapons.” Id. The “[a]ttack canines were held outside the door,” and Tuchinsky was placed in handcuffs, shackled with leg irons, and informed he was under arrest. Id. Tuchinsky told the “agents that the only other occupants of the residence were his wife and two children, and pleaded with the [] agents ‘please do not touch my children and wife.'” Id. at 6, ¶ 21.

MT, AT, and their mother, Leyla Borovik, were awoken “by a bullhorn ordering them to come out with their hands above their heads.” Id. at 2, ¶ 2. Plaintiff MT is a six-year-old child, while AT is eight. Id. “MT emerged from his bedroom in his pajamas with his hands raised and was paralyzed by fear as he was forced to watch his father being arrested, handcuffed and shackled while a FBI agent pointed at [sic] weapon at him with his finger on the trigger.” Id. at 6, ¶ 22. An “agent tagged MT with the laser of his assault rifle on his chest, then on his forehead,” and Tuchinsky “pleaded with the agents not [to] harm his child.” Id. Borovik emerged from her bedroom to lights being flashed in her face, and “was commanded to walk through the hallway where she saw FBI agents in paramilitary uniforms and bulletproof vests brandishing what appeared to be machine guns pointed towards her six-year old son MT, who was still in his pajamas” and “sobbing uncontrollably.” Id. at 7, ¶ 23. MT was “watching his father being held against the wall with an assault weapon pointed at his head.” Id. “Borovik kept pleading to find out what was happening, but the FBI agents refused to respond and Tuchinsky was unable to respond.” Id. at 7, ¶ 24.

“The FBI agents resumed issuing the loud commands through the bullhorns, waking eight-year-old AT who emerged from her bedroom, still wearing her top and undergarments ....” Id. at 7, ¶ 25. As AT walked through the hall, Defendants continued to shout commands and brandish their weapons, which caused Borovik, AT, and MT “to be terrified the agents would shoot them.” Id. Defendants took MT and AT from Borovik and “without the consent of either parent, [D]efendants took MT and AT into separate bedrooms and conducted an interrogation behind closed doors.” Id. at 7, ¶ 26. AT was detained by a male agent, without the consent or presence of her mother, wearing only a top and undergarments. Id. at 2, ¶ 2. Borovik was also taken to a separate room for interrogation, after which, she was allowed to get dressed. Id. at 7, ¶ 26. Agents then continued to interrogate Borovik after she was dressed, “and MT and AT continued to be detained in two separate rooms by agents behind closed doors.” Id. at 7, ¶ 27.

Plaintiffs allege “[t]here were no exigent circumstances that justified the display of force and weapons or the removal of MT and AT from their parents.” Id. at 7, ¶ 28. Tuchinsky was being charged with financial crimes, which “did not include weapons or drug related matters,” and “there were no allegations or suggestion that the safety or welfare of MT and AT were in jeopardy from anything other than the actions of the FBI agents.” Id. at 7-8, ¶ 28.

Plaintiffs allege that “[t]he tactics were designed to, and did, threaten, intimidate, humiliate, and coerce Plaintiffs Leyla Borovik and her two minor children.” Id. at 3, ¶ 3. “As a result of the egregious and extreme conduct of [D]efendants, while acting in the course and scope of their employment with Defendant U[nited States] as investigation and law enforcement officers, MT, AT, and Leyla Borovik suffered extreme emotional distress which has manifested itself in emotional and physical symptoms for which they have suffered general and special damages.” Id. at 8, ¶ 29. Plaintiffs allege that “damages were exacerbated by the fact that Defendant [] instituted forfeiture proceedings which seized the funds and assets of [] [Borovik] and her husband that would have enabled the parents to obtain and/or continue the counseling and therapy needed by MT and AT for the physical and emotional distress they suffered as a result of the raid.” Id. at 3, ¶ 4.

B. Procedural History

On February 7, 2022, Plaintiffs filed their original Complaint and on February 16, 2022, Plaintiffs filed their First Amended Complaint. ECF No. 4 (“FAC”). On May 25, 2022, Defendants filed the instant Motion to Dismiss. ECF No. 10 (“Motion”). Plaintiffs filed an Opposition and Defendants replied. ECF No. 11 (“Oppo.”); ECF No. 12 (“Reply”).

III. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed when a plaintiff's allegations fail to set forth a set of facts which, if true, would entitle the complainant to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (holding that a claim must be facially plausible to survive a motion to dismiss). The pleadings must raise the right to relief beyond the speculative level; a plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). On a motion to dismiss, a court accepts as true a plaintiff's well-pleaded factual allegations and construes all factual inferences in the light most favorable to the plaintiff. See Manzarek, 519 F.3d at 1031. A court is not required to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.

“Generally, unless the court converts the Rule 12(b)(6) motion into a summary judgment motion, it cannot consider material outside the complaint (e.g., facts presented in briefs, affidavits or discovery materials).” Phillips & Stevenson, California Practice Guide: Federal Civil Procedure Before Trial § 9:211 (The Rutter Group April 2020). Thus, in evaluating a Rule 12(b)(6) motion, review is ordinarily limited to the contents of the complaint and material properly submitted with it. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). Courts may also consider any statements made in a pleading or motion, including concessions made in plaintiff's response to the motion to dismiss as well as in response to any other pleading or motion. Fed.R.Civ.P. 10(c).

IV. DISCUSSION

Plaintiffs allege numerous tort violations through the Federal Tort Claims Act (the “FTCA”), along with a Bivens claim for damages. Plaintiffs' claims or elements thereof depend on whether Defendants used excessive force when executing the search of Plaintiffs' home. As such, the Court analyzes the reasonableness of Defendants' alleged use of force before addressing the various tort claims and assertions of immunity. As set forth below, the Court finds that Plaintiffs' FAC states facts sufficient to support their FTCA tort claims alleged against the United States but fails to state a Bivens claim against any of the Defendants. Because the individual Defendants are immune from suit pursuant to the FTCA, the Court does not reach the issue of qualified immunity.

A. Excessive Force

Claims made pursuant to § 1983 for excessive use of force during an arrest are analyzed under the Fourth Amendment's objective reasonableness standard. Graham v. Connor, 490 U.S. 386, 395 (1989). To determine whether the force used is “objectively reasonable,” the Court balances “the nature and quality...