govinfo:USCOURTS-casd-3_24-cv-02138-0

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
 
KAREN PARKER, an individual, 
Plaintiff, 
v. 
JUAN PRISHKER, an individual; and 
UNITED STATES OF AMERICA, 
Defendants. 

 
ORDER DENYING THE 
GOVERNMENT’S MOTION TO 
DISMISS FOR LACK OF SUBJECT 
MATTER JURISDICTION 
 
[ECF No. 17] 
 
 Pending before the Court is Defendant United States of America’s (“United States” 
or the “Government”) motion to dismiss for lack of subject-matter jurisdiction. (ECF No. 
17.) Plaintiff Karen Parker opposed (ECF No. 18), and the Government replied (ECF 
No. 19). The Court decides the matter on the papers submitted without oral argument. 
See Civ. LR 7.1(d.1). For the reasons set forth below, the Government’ motion is denied. 
/ / / / / 
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 A. BACKGROUND1 
 Plaintiff is a retired social worker who volunteers as a humanitarian aid worker 
providing first aid services to detainees at the U.S.-Mexico border around Jacumba 
Springs, California. Plaintiff frequently works with Border Patrol agents to ensure the 
timely delivery of medical care to immigrants in the custody of the United States 
Customs and Border Protection Agency (“CBP”). 
 Plaintiff was volunteering at a CBP open air detention center. To facilitate medical 
transport for a detainee, Plaintiff sought to contact a CBP agent. Plaintiff drove to an 
area along the border wall where agents were often found. She encountered Agent Juan 
Prishker (“Prishker”) alone in his truck and parked beside him. Plaintiff and Prishker 
stood between their two vehicles when Plaintiff asked Prishker about a detainee medical 
transport. Instead of responding to her inquiry, Prishker blocked Plaintiff from her car 
and showed her two photos of his penis on his phone. He asked Plaintiff what she 
thought about them. When Plaintiff tried to retreat to her car, Prishker again blocked her 
way and asked her the “difference between good and evil,” and whether they were “the 
same.” Plaintiff was terrified, given that she was alone in the dark with an armed agent 
much larger than herself. She was eventually able to back away and leave. 
In October of 2024, Prishker was charged by the San Diego District Attorney’s 
Office with two felonies -- sexual battery and false imprisonment, and four misdemeanor 
counts of distributing obscene material. Plaintiff is one of multiple victims in the 
criminal complaint. 
/ / / / / 
 
1 Because the Government’s motion presents a facial challenge, the Court takes as 
true the allegations in the operative complaint. See Leite v. Crane Co., 749 F.3d 1117, 
1121 (9th Cir. 2014). 
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 In this action Plaintiff alleges intentional infliction of emotional distress, 
negligence, and false imprisonment under the Federal Torts Claim Act (“FTCA”) against 
Prishker and the Government. The Government moves to dismiss for lack of subject 
matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).2 
 B. LEGAL STANDARD 
 The Government asserts sovereign immunity as the basis for dismissal. A claim of 
sovereign immunity is a quasi jurisdictional issue that can be addressed on a Rule 
12(b)(1) motion. Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015).3 
A defendant’s challenge under Rule 12(b)(1) may be either facial or factual. Safe 
Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial challenge 
“accepts the truth of plaintiff’s allegations but asserts that they ‘are insufficient on their 
face to invoke federal jurisdiction.’” Leite, 749 F.3d at 1121 (quoting Safe Air for 
Everyone, 373 F.3d at 1039). By contrast, a factual challenge “contests the truth of the 
plaintiff's factual allegations, usually by introducing evidence outside of the pleadings.” 
Id. The Government brings a facial challenge. (ECF No. 17, “Mot.” at 4.) 
C. DISCUSSION 
 1. Sovereign Immunity 
 “The United States, as sovereign, is immune from suit save as it consents to be 
sued.” United States v. Sherwood, 312 U.S. 584, 586 (1941). “Thus, the United States 
may not be sued without its consent and the terms of such consent define the court’s 
jurisdiction.” Baker v. United States, 817 F.2d 560, 562 (9th Cir.1987). “There cannot 
be a right to money damages without a waiver of sovereign immunity.” United States v. 
 
2 All future references to “Rule” or “Rules” refer to the Federal Rules of Civil 
Procedure. 
 
3 Unless otherwise noted, internal quotation marks, citations, footnotes, ellipses, and 
brackets are omitted from citations. 
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Testan, 424 U.S. 392, 400 (1983). A waiver is not implied but must be unequivocally 
expressed. Id. at 399. “[S]tatutes which are claimed to be waivers of sovereign 
immunity are to be strictly construed against such surrender.” Safeway Portland Emp. 
Fed. Credit Union v. Fed. Deposit Ins. Corp., 506 F.2d 1213, 1216 (9th Cir. 1974). 
A party bringing a cause of action against the federal government bears the burden 
of showing an unequivocal waiver of immunity. Holloman v. Watt, 708 F.2d 1399, 1401 
(9th Cir. 1983). “The question whether the United States has waived its sovereign 
immunity against suits for damages is, in the first instance, a question of subject matter 
jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). “Absent 
consent to sue, dismissal of the action is required.” Hutchinson v. United States, 677 
F.2d 1322, 1327 (9th Cir. 1982). 
 2. FTCA 
 Plaintiff claims waiver of sovereign immunity under the FTCA. The FTCA is the 
exclusive remedy for tortious conduct by the United States. Fed. Deposit Ins. Corp. v. 
Craft, 157 F.3d 697, 706 (9th Cir. 1998). It “grants the federal district courts jurisdiction 
over a certain category of claims for which the United States has waived its sovereign 
immunity and ‘render[ed]’ itself liable.” Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 
477 (1994) (citing 28 U.S.C. § 1346(b)). Section 1346(b) provides in pertinent part: 
[T]he district courts ... shall have exclusive jurisdiction of civil actions on claims 
against the United States, for money damages …, for injury or loss of property, or 
personal injury or death caused by the negligent or wrongful act or omission of any 
employee of the Government while acting within the scope of his office or 
employment, under circumstances where the United States, if a private person, 
would be liable to the claimant in accordance with the law of the place where the 
act or omission occurred. 
 
 
28 U.S.C. § 1346(b). The United States is liable “in the same manner and to the same 
extent as a private individual under like circumstance[s].” 28 U.S.C. § 2674. Here, the 
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Government is liable for Prishker’s conduct if a private employer would be liable under 
California law. 
 3. Scope of Employment 
 The only dispute presented by the Government’s motion is whether Prishker was 
acting within the scope of his employment when the events that gave rise to this case took 
place. In FTCA cases, whether the federal employee was acting within the scope of his 
employment is analyzed under the respondeat superior principles of the state in which 
the alleged tort occurred. See Pelletier v. Fed. Home Loan Bank of S.F., 968 F.2d 865, 
876 (9th Cir. 1992). California law of respondeat superior applies here because 
Prishker’s actions occurred in California. 
 “The scope of employment has been broadly interpreted” by California courts. 
John Y. v. Chaparral Treatment Ctr., Inc., 101 Cal. App. 4th 565, 575 (2002). 
Respondeat superior liability attaches when the employee’s tort is engendered by or 
arises from his or her work. Lisa M. v. Henry Mayo Newhall Mem’l Hosp., 12 Cal. 4th 
291, 298 (1995). Accordingly, “[a]n employee’s willful and malicious intentional torts, 
including those that might contravene an employer’s express policies, do not 
automatically fall outside the scope of employment.” Daza v. Los Angeles Comm’ty. 
Coll. Dist., 247 Cal. App. 4th 260, 268 (2016). To fall within the scope of employment, 
the intentional misconduct must be “a generally foreseeable consequence” of the 
defendant employer’s business, or stated another way, “not so unusual or startling that it 
would seem unfair to include the loss resulting from it among other costs of the 
employer’s business.” Lisa M., 12 Cal. 4th at 299. 
For example, in an FTCA action alleging emotional distress arising from sexual 
assault, an asylum officer who solicited bribes and sexual favors in exchange for granting 
asylum applications was found to have acted within the scope of his employment under 
California law, even though his conduct was unauthorized and did not serve his 
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employer. Xue Lu v. Powell, 621 F.3d 944 (9th Cir. 2010) (“Powell”).4 The court found 
that the officer abused his powers and his conduct, although unauthorized, was incidental 
to his employment. Id. at 948-49. 
 The Government argues that “[i]n the case of a law enforcement officer sexual 
assault, a finding of scope hinges on the misuse of the officer’s arrest authority or legal 
authority to commit the assault.” (ECF No. 19, “Reply,” at 4.) The Court disagrees. The 
holding of Powell did not hinge on the asylum officer’s arrest authority or legal authority 
to commit the assault but on his authority to grant asylum applications. See also Fajardo 
v. United States, 792 F. App’x 481 (9th Cir. 2020) (sexual assault on witness by Special 
Agent of the U.S. Department of State investigating passport fraud held within scope of 
employment). 
Here, Plaintiff contacted Prishker in his official capacity as a CBP agent while he 
was on duty. She contacted him with a work-related inquiry about medical transport for 
an immigration detainee. Plaintiff alleges that Prishker abused his position as an armed 
CBP agent when he falsely imprisoned and sexually harassed her. Accordingly, Plaintiff 
has alleged sufficient facts to show that Prishker acted within the scope of his 
employment. 
/ / / / / 
 
 
4 Ninth Circuit opinions analyzing state law issues are binding on federal district 
courts unless overturned by en banc panels, the United States Supreme Court, or the State 
Supreme Court. See Rotec Indus., Inc. v. Mitsubishi Corp., 348 F.3d 1116, 1122 n.3 (9th 
Cir. 2003). 
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 C. CONCLUSION 
 For the foregoing reasons, the Government’s motion is denied. 
 
 IT IS SO ORDERED. 
 
Dated: August 18, 2025 
 
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