Johnson v. United States

Background

James Ellis Johnson, representing himself, sued the United States over events at a Department of Veterans Affairs facility in Palo Alto on January 14, 2020. Johnson alleged that VA police arrested him, forced him through hallways, handcuffed him, and caused severe shoulder pain. He also alleged that VA staff had placed a behavioral flag in the VA computer system directing staff to contact law enforcement or VA police if he could not be redirected from disruptive behavior or posed a safety threat.

Johnson asserted a constitutional claim involving civil rights and freedom of speech, although he later clarified that he was not claiming the behavioral flag itself violated the First Amendment. He said the flag was unjustified, based on fabricated conduct, and imposed without notice or an opportunity to appeal. He also asserted tort claims for false arrest, false imprisonment, assault, being “tortured,” false prosecution, and “prima facie case.” He sought $9,900, removal of the behavioral flag, and costs.

The United States moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) concerns the court’s subject-matter jurisdiction, while Rule 12(b)(6) tests whether the complaint states a legally sufficient claim. The court treated Johnson’s complaint and attached exhibits as the source of his allegations and construed his filings liberally because he was self-represented.

Constitutional claim

The court rejected Johnson’s challenge to the behavioral flag to the extent it was based on due process. It relied on an earlier round of this dispute in which a court had held that a VA behavioral restriction did not implicate a property or liberty interest protected by the Fifth Amendment.

The court also held that a challenge to the existence of the behavioral flag was barred because Johnson had not exhausted the administrative appeal process under 38 C.F.R. § 17.107(e). That regulation provides for an appeal to the Network Director within 30 days of the order’s issuance.

As to the arrest by VA police, the court held that sovereign immunity barred Johnson’s constitutional claim against the United States. Sovereign immunity generally prevents suits against the United States unless the government has clearly waived that protection. Johnson did not identify a waiver covering his constitutional claim for damages and equitable relief. The court therefore concluded that it lacked jurisdiction over that part of the case.

Tort claims

The court explained that the Federal Tort Claims Act waives the United States’ immunity for certain tort claims and that California law supplies the elements of Johnson’s claims. It first held that the combined tort count did not satisfy the federal requirement to provide enough factual detail to give the defendant fair notice of each claim.

The court separately discussed the remaining theories to guide any amendment. For false arrest and false imprisonment, Johnson needed to allege facts supporting a plausible inference that the VA police knew, or should have known, that the arrest was unlawful or lacked reasonable or probable cause. The court found that his allegations that he was arrested “for no reason,” that the arrest was “set up,” and that he was arrested after requesting an attorney did not meet that standard.

For assault, the court found that Johnson had not adequately alleged that the officers used unreasonable force. The complaint did not separately plead a battery claim, although the court treated his reference to being “tortured” as possibly intending to raise battery. The court stated that a battery claim would require allegations showing harmful or offensive contact, lack of consent, resulting harm, and unreasonable force.

For malicious prosecution, Johnson did not adequately explain the nature of the disorderly-conduct charge, why it was brought without probable cause or with malice, how it ended in his favor, or how it related to the January 14 incident. The court did not decide whether California law requires proof of innocence, rather than merely the absence of a conviction, because Johnson’s allegations were insufficient under either standard.

Disposition

Judge Donna Ryu granted the United States’ motion to dismiss the complaint. The court dismissed Johnson’s constitutional claim with prejudice because of sovereign immunity, failure to exhaust administrative remedies, and the lack of a legally cognizable due process claim. It also dismissed the tort claims for “tortured” and “prima facie case” with prejudice because they did not state cognizable legal claims.

The court dismissed with leave to amend Johnson’s remaining tort claims for false arrest or false imprisonment, assault, possibly battery, and malicious prosecution. The court found that amendment of those claims would not necessarily be futile. Johnson was given until October 12, 2022, to file a First Amended Complaint containing all of his claims, a single statement of facts, separately numbered tort claims, and facts supporting each claim and an applicable waiver of sovereign immunity. The court also ordered the Clerk to seal the original complaint because an exhibit contained sensitive personally identifiable information.