MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS.,
Plaintiff Jessica Blanco filed this action against Defendants City of Lemoore (“the
BACKGROUND
l. FACTUAL ALLEGATIONS
Plaintiff is a female resident of Kings County. (First Amended Complaint (“FAC”) ¶ 6, Doc. 16). On December 19, 2013,.at approximately 3:30 a.m., Plaintiff was driving somewhere in Lemoore. (Id. ¶ 11). She was stopped by Cosper, a male police officer, for a motor vehicle registration violation. (Id. ¶¶ 10, 11). After a search during which a controlled substance was discovered, Cosper arrested Plaintiff and took her to the County jail, located in the city of Hanford. (Id. ¶ 11). The jail is operated by Kings County. (Id.). En route to the jail, Cosper “attempted to elicit incriminating statements from Plaintiff, which she largely refused” to provide. m.
When they arrived at the county jail, Cosper turned Plaintiff over to Mixon for processing. (Id. ¶ 12). Mixon, a female, conducted a routine strip' search of Plaintiff. (Id.). “On information and belief, this strip search consisted of Plaintiff being compelled to remove all her clothing for inspection and search, as well as a body cavity search.” (Id.). Initially, Mixon conducted the search away from male personnel, and the search was “routine in nature.” (Id.).
At some point during the search, Mixon discovered an additional small amount of a controlled substance on Plaintiff. (Id. ¶ 13). While Plaintiff was still undressed, Mixon summoned Cosper, who had been outside the strip search area. (Id.). Cos-per came into the strip search area and began interrogating Plaintiff while she was unclothed, “in an attempt to gain further incriminating information from her.” (Id.). The actions of Mixon and Cosper-“caused Plaintiff to suffer severe - emotional shock and humiliation, with the resultant stress.” (Id.).
On or around June' 17,' 2014, Plaintiff filed an ■ administrative claim pursuant to California law regarding the matters described above. (Id. ¶ 17). • The County denied this claim on August 15, 2015, and the City denied the claim on August 6, 2014. (Id.).
II. PROCEDURAL BACKGROUND
Plaintiff filed the, original complaint with this Court on December 18, 2014. (Doc. 1). The FAC, filed July 15, 2015, sets forth the following claims against all Defendants: (1)' violation of Plaintiffs First, Fourth, Fifth, and Fourteenth Amendment rights under 42 U.S.C. § 1983; (2) violation of Plaintiffs right to privacy under the California Constitution; (3) intentional infliction of emotional distress under California law; and (4) negligent infliction of emo
In their respective Motions, Mixon and the County seek- dismissal of Plaintiffs second, third, and fourth causes of action (Doc. 18), and Cosper and the City seek dismissal of all causes of action and move to strike Plaintiffs prayer for punitive damages (Doc. 19). Plaintiff opposed both Motions (Docs.21, 22).. Defendants each submitted responses. (Docs.23, 24). The matter is now ripe for review.
LEGAL STANDARD
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is a challenge to the sufficiency ,of the allegations set forth in the complaint. Navarro v. Block,
Under Rule 8(a), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” A plaintiff is required to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
While Rule 8(a) does not require detailed factual allegations, “it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal,
“Dismissal without leave to amend is proper if it is clear that the complaint could not be saved by amendment.” Kendall v. Visa U.S.A., Inc.,
DISCUSSION
1. FIRST CAUSE OF ACTION: 42 U.S.C. § 1983
The first cause of action is brought against Mixon, the County, Cosper, the City, and Does 1-10, pursuant to 42 U.S.C. § 1983, which provides a federal cause of action for plaintiffs who have been deprived of constitutional rights under the color of law. For each defendant that she seeks to hold liable under § 1983, Plaintiff must allege: (1) this defendant was acting under color of state law at the time the complained-of act was committed; and (2) the defendant’s conduct deprived Plaintiff of rights, privileges' or immunities secured by the Constitution or laws of the United States'.' Parratt v. Taylor,
Plaintiff also must establish causation, by demonstrating that each defendant personally was involved in the constitutional violation, or that there was a sufficient causal connection between the defendant’s wrongful conduct and the constitutional violation. Redman v. County of San Diego,
Plaintiffs § 1983 claim is entitled “42 U.S.C. § 1983 — Unreasonable Search and Seizure and Due Process Violation); (Doc. 16, at 2.) The body of the claim more broadly alleges “[t]he actions of Defendants and each of them that morning were designed to retaliate against Plaintiff for her invoking her right to remain silent during the questioning by Defendant Cos-per that morning, in violátion of the First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution.” (Id. ¶ 14). Mixon and the County do not address this cause of action in them Motion. (Doc. 18). Cosper and the City seek dismissal of this cause of action in its entirety'as it relates to them. (Doc. 19-1, at 4-7). The Court now considers whether the factual allegations in the FAC can support § 1983 claims under the First, Fourth, Fifth, and Fourteenth Amendments, with regard to Cosper
A. FIRST AMENDMENT CLAIM
The body of Plaintiffs first cause of action invokes the First Amendment, and appears to suggest that Defendants retaliated against Plaintiff for exercising her rights' under the First Amendment to remain silent while she was in the car with Cosper. (See Doc. 16 ¶¶ 14-15). Cosper and the City argue that the FAC fails to state a claim under the First Amendment. (Doc. 19-1, at 7.) Plaintiff failed to respond to this argument. (See Doe. 21).
Generally, the First Amendment protects both “the voluntary public expres
Accordingly, the Court will GRANT the motion to dismiss Plaintiffs § 1983 First Amendment claim as it relates to Cosper and the City. Plaintiff has requested leave to amend. (Doc. 21, at 3). As set forth below, Plaintiff will be afforded one opportunity to amend her complaint to cure any deficiencies.
B. FIFTH AMENDMENT CLAIM
Plaintiffs Fifth Amendment claim appears to arise from the same conduct upon which she based her First Amendment claim — that she attempted to assert her Fifth Amendment right against incrimination by remaining silent .while she was in the ear with- Cosper, and that Cosper subsequently re-interrogated her while she was naked in retaliation for her invocation of her right to remain silent.- (Doc. 16 ¶¶ 13-15). ■ Here, the FAC explicitly states “[w]hile driving to jail, Defendant Cosper attempted to elicit incriminating statements from Plaintiff, which' she largely refused (5th Amendment).” (Id. ¶11). The Fifth Amendment privilege protects an individual “against being involuntarily called as a witness against [herself] in a criminal proceeding” and moreover privileges her' “not to answer official questions put to' [her] in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate [her] in future criminal proceedings.” Lefkowitz v. Turley,
Cosper and the City seek dismissal of Plaintiffs § .1983 Fifth Amendment claim against them because Plaintiff has not set forth allegations that she was compelled to be a witness .against herself in a criminal case, and therefore her Fifth Amendment rights were not violated. (Doc. 19-1, at 7). Although the FAC' does explicitly state that Plaintiff asserted her Fifth Amendment right to -remain silent while she was in the car with Cosper, it
C. FOURTH AMENDMENT CLAIM
The Fourth Amendment provides that the “right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated ...” Heien v. N. Carolina, — U.S. -,
Plaintiff has characterized the events alleged in the FAC as a “cross-gender strip search.” (Doc. 16 ¶ 13; Doc. 22, at 4). A strip search conducted by a person of the opposite gender normally is considered a violation of the Fourth Amendment. Byrd v. Maricopa County Sheriff’s Dept.,
Nevertheless, even if the Fourth Amendment protects against the presence of an opposite-gender individual while an individual of the same gender is conducting'a strip search, the allegation's in the FAC do not trigger any such protection. At this juncture, the Court is not persuaded' that the FAC plausibly alleges that Cosper was involved in the “search” of Plaintiff, as contemplated by the Fourth Amendment. The FAC alleges that Cos-per “turned over control” of Plaintiff to Mixon, who conducted the strip search; the FAC does not allege that Cosper actually participated in the search of Plaintiff, nor that Cosper was present while any strip search or body cavity search was taking place. (Doc. 19-1, at 6; Doc. 16 ¶13). The FAC only plausibly suggests that Cosper entered the strip search area after Mixon completed the search of Plaintiff, because it alleges that Mixon beckoned for Cosper to enter after she found contraband on Plaintiffs person. (Doc. 16 ¶ 13). Cosper’s mere, presence in the strip search area and his resumption of questioning Plaintiff while she was naked does not elevate the occurrence to a violation of Plaintiffs Fourth Amendment right to be free from an unreasonable search. (Doc. 22, at 4); see also Cavalier v. County of San Diego,
In sum, the FAC does not plausibly allege that Cosper was involved in a “search” of Plaintiff, and therefore fails to state a Fourth Amendment claim against Cosper. As such, the City, Cosper’s employer, likewise cannot be implicated in Plaintiffs Fourth Amendment claim. Nevertheless, the' Court recognizes that amendment of 'the FAC is not futile, so
D. FOURTEENTH AMENDMENT CLAIM
The Fourteenth Amendment bars “any State [from] depriving] any person of life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV, § 1. Although the text of the Fourteenth Amendment makes no mention of an explicit right to privacy, the Supreme Court has recognized that “one aspect of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment is ‘a right of personal privacy, or a guarantee of certain area's or zones of privacy.’ ” Carey v. Population Servs. Int’l,
The Ninth - Circuit has held that the right to privacy, under the Fourteenth Amendment, includes the right to shield one’s naked' body from view by persons of the opposite sex. York v. Story,
In Grummett, the Ninth Circuit held that this right to bodily privacy under the Fourteenth Amendment also applies in the prison context.
In the previous section, the Court determined that the FAC did not adequately allege that Cosper was involved in a search of Plaintiff under the Fourth Amendment. However, the Fourteenth Amendment’s right to privacy extends to' violations of privacy that are not searches within the meaning of the Fourth Amendment, and does plausibly apply to the allegations set forth in the FAC. See York,
1. Cosper
According to the FAC, Mixon conducted the strip search of Plaintiff in an area away from male personnel. (Doc. 16 ¶ 13).' After Mixon discovered contraband on Plaintiff during the strip search, she summoned Cosper. (Id.).. “He was just outside the strip search area and then returned so that he could interrogate Plaintiff, while unclothed, in an attempt to gain further incriminating information from her.” (Id.). “Cosper entered the strip search area and began interrogating Plaintiff while she was in a state of undress, naked.” (Id.). Plaintiff does not explicitly allege that Cosper saw her naked body. (See id.). However, the FAC’s allegations certainly suggest plausibly that Cosper viewed Plaintiffs naked body and questioned her while she was naked. (See id.).
These factual allegations invoke the privacy protections of the Fourteenth Amendment’s Due Process Clause, as they plausibly suggest that Cosper viewed Plaintiffs naked body in a context where she had a reasonable expectation of privacy. Grummett,
Because the events alleged in the FAC occurred at a county jail facility, the Court now considers whether the invasion of Plaintiffs privacy was justified by any “compelling, state interest.” Grummett,
For these reasons, Plaintiff has alleged “more than a sheer possibility that [Cos-per] ... acted unlawfully.” See Iqbal,
2. The City
The FAC alleges that the City, “as a pattern or practice, failed to adequately insure that its employees follow established protocols prohibiting cross-gender strip searches or interrogations,” and that the City was “aware of the inappropriateness of routine cross-gender strip searches of arrestees, as well as the interrogation of persons while naked, but failed to take adequate steps to prevent it from occurring.” (Doc. 16 ¶ 13). The City moves to dismiss this cause of action, arguing that Plaintiff has failed' to state a claim for municipal liability under Monell v. Dep’t of Social Svcs. of City of New York,
Under Monell, “it is not enough for. a section 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the moving force behind the injury alleged.” Bd. of County Commis. of Bryan County, Okl. v. Brown,
Plaintiffs claim with respect to the City can only be construed as an allegation that the City failed to provide Cos-per with adequate training and/or supervision. (Doc. 16 ¶ 13). She has alleged one incident of misconduct by Cosper and that his misconduct is rooted in the City’s failure to train him. (Id.). With regard to the City’s role in Cosper’s behavior, Plaintiff alleges that the City had “established protocols prohibiting cross-gender strip searches or interrogations,” and that the City was “aware of the ihappropriateness of routine cross-gender strip searches, as well as the interrogation of persons while naked, but failed to take adequate steps to prevent it from happening.” (Id.).
These allegations do not “plausibly suggest an entitlement to relief.” Starr v. Baca,
Nevertheless, the Court notes that further allegations of plausible facts to support the claims regarding deficiencies in City’s policies and procedures may cure the deficiency in Plaintiffs Monell claim. See AE ex rel. Hernandez v. County of Tulare,
II. SECOND CAUSÉ OF ACTION: CALIFORNIA CONSTITUTION RIGHT TO PRIVACY
“The California Constitution, at article I, section 1, includes privacy as among the inalienable rights guaranteed to its residents.” Buzayan v. City of Davis,
The only published case
“Although citizens have a private right of action against public entities for violation of the right to privacy, no case has ever held that California Constitution, article. I, section I imposes a mandatory duty on public entities to protect a citizen’s right to privacy. The constitutional mandate is simply that the government is prohibited from violating that right; if it does, an aggrieved citizen may seek an injunctive remedy in court.”
Id. at 1238,
On this basis, Clausing found that article I, section 1 does not permit a private right of action for money damages and upheld the lower court’s demurrer of a complaint that sought money damages for an alleged violation of the privacy provision in article I, section I. Id. The Court also finds persuasive the reasoning of Bates v. Arata,
Plaintiff additionally cites Miller v. Nat’l Broad. Co.,
For these reasons, the Court finds that the California Constitutional right to privacy contained in article I, section I does not give rise to a cause of action for money damages. Clausing,
III. THIRD CAUSE OF ACTION: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Under California law, the elements of a prima facie case for the tort of intentional infliction of emotional distress (“IIED”) are: “(1) extreme and outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing, emotional distress; (3) the plaintiffs suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s conduct.” Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., 129. Cal.App.4th 1228, 1259,
1. Cosper
Cosper seeks dismissal of Plaintiffs IIED claim, arguing that he did not engage in any outrageous conduct and that “no facts are pled establishing such conduct,” and that “no facts are pled to give the Court a reasonable inference that Defendants’ conduct was intended to inflict injury or engaged in with the realization that injury would result.” (Doc. 19-1, at 12.) He further argues that Plaintiffs “conclusory allegations” are “lacking in a factual basis” and are therefore “insufficient to support a claim of [IIED].” (Id.). His response to Plaintiff’s opposition echoes these arguments. (Doc. 23, at 6).
Like her prior claims, Plaintiffs IIED claim is rooted in the events at the county jail facility (Doc. 16 ¶ 13). With regard to the first prong of an IIED prima facie case, to be outrageous, conduct “must be so extreme as to exceed all bounds of that usually tolerated in a civilized community ..'. Generally, conduct will be found to be actionable where the ‘recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Cochran v. Cochran,
Plaintiff further alleges that Cosper’s actions were “done for the purpose of causing [her] to suffer anxiety, mental anguish, and severe emotional and physical distress.” (Id. ¶ 23). Because Plaintiff alleged that Cosper voluntarily entered the strip search area and voluntarily resumed questioning her while she was undressed, the Court finds that there is indeed enough of a' factual basis to infer that Cosper’s actions could be indicative of either intent to cause emotional distress, or reckless disregard of the probability of causing emotional distress. See Iqbal,
Finally, Plaintiff has pleaded facts sufficient to satisfy' the third and fourth requirements of a prima facie IIED claim, as she alleges that Cosper’s conduct “directly and proximately caused severed [sic] and protracted emotional distress to Plaintiff.” (Doc. 16 ¶ 24). Plaintiff additionally alleges that she was “hurt and injured in her health, strength and activity, sustaining injury to her body and shock and injury to her nervous system and person,” and believes that “said injuries will result in some permanent disability to her.” (Id. ¶¶25, 26). Although these allegations are general, they nevertheless permit the Court to “draw the reasonable inference that [Cos-per] is liable for the misconduct alleged,” and are therefore sufficient to survive Cos-per’s Motion to Dismiss. See Iqbal,
2. The City and the County
The City and the County both seek dismissal of Plaintiffs IIED claim on the grounds of municipal’ immunity under the California Tort Claims Act. (Doc. 18, at 5; Doc 19-1, at 13-14). According to California Government Code § 815, “[e]xcept as otherwise provided by statute, a public entity 'is not liable for" an injury, whether such injury arises out of an act or omission of the public entity or a public entity employee or any other person.” In her opposition to the motions, Plaintiff counters that the City and County can be liable because she has “plead[ed] compliancé with the [Tort, Claims Act],” and moreoyer appears to argue .that the City and County may be vicariously liable under Government Code § 815.2(a). (Doc. 21, at 10-11; Doc. 22, at 10-11). -
“In California, a governmental entity can only be sued in tort pursuant to an authorizing statute or enactment.” Van Ort v. Estate of Stanewich,
Nevertheless, as Plaintiff argues in her opposition, there may be a basis for holding the City and County liable for the torts of their respective employees under the doctrine of respondeat superior. See Lawson v. Superior Court,
In the previous section, the Court determined that Plaintiff adequately pleaded the elements of IIED against Cosper. Mixon did not move to dismiss the IIED claim against her. (See Doc. 18-1). Neither the City ndr the County addressed Plaintiff’s claim that the City and the County may be vicariously liable for the torts committed by Cosper and Mixon. (See Docs, 18-1, 19-1). Therefore, the Court will DENY the City and the County’s Motions to Dismiss Plaintiffs IIED claims against .them. See Garcia v. City of Merced,
IV. FOURTH CAUSE OF ACTION: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
Negligent Infliction of Emotional Distress (“NIED") is a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply. Huggins v. Longs Drug Stores California, Inc.,
In the FAC, Plaintiff alleges that all of the named Defendants “breached their duty of due care to Plaintiff,” that
Plaintiff asserts that Defendants owed to her a “duty of -due care,” but does not specify what this duty entails. (Doc. 16 ¶ 31). While it is true that under Civil Code § 1741, that there is a general duty of “ordinary care to prevent others from being injured as a result of [one]’s' conduct,” Lawson v. Safeway Inc.,
V. PUNITIVE DAMAGES
Plaintiff seeks punitive damages against individual defendants Mixon and Cosper. (Doc. 21; at 11; Doc. 22, at 11). Cosper has moved to strike Plaintiff’s prayer for punitive damages, arguing that she has proffered insufficient factual assertions to support an award of punitive damages. (Doc. 19-1, át 14); Mixon has not' addressed Plaintiff’s prayer for punitive damages. (See Doc. 18-1).
As explained above, the Court has determined that Plaintiff stated a cognizable § 1983 claim against Cosper, for his violation of Plaintiff’s Fourteenth Amendment right to bodily privacy. Section I.C.l, supra. Punitive damages may be assessed in §. 1983 actions “when-, the defendant’s conduct is shown to be motivated by evil motive or intent, or. when it. in
Cosper also moves to strike Plaintiffs prayer for punitive damages in connection with her surviving- state law IIED claim. Under California Civil Code § 3294, the recovery of punitive damages may be allowed on a successful tort claim. Neveu v. City of Fresno,
For these reasons, the Court will DENY Cosper’s Motion to Strike Plaintiffs claim for punitive damages.
VI. COSPER AND THE CITY’S REQUEST FOR JUDICIAL NOTICE
Cosper and the City have requested that the Court take judicial notice, pursuant to Federal Rules of Evidence 201(b)(2) and 201(c)(2), of true and correct copies of documents pertaining to Plaintiffs felony criminal conviction in the Superior Court of California, County of Kings, arising out of the events described •in Plaintiffs FAC. (Doc. 19-2). - They have done so to support their argument that Plaintiffs § 1983 claims are barred under Heck v. Humphrey,
Here, Plaintiff has conceded that her arrest by Cosper was lawful, and she does not allege that she was falsely imprisoned. (Doc. 22, at 11). Her § 1983 claim arose out of the manner by which Mixon- conducted her strip search and Cosper’s subsequent questioning of her, and does not appear to have any bearing on any later criminal proceeding in state court. (Id.). Moreover, the Court did not rely on any of the documents submitted in reaching its findings. As such, Heck is inapposite in this case, and Cosper and the City’s Request for Judicial Notice is likewise moot.
VII. CONCLUSION AND ORDER
For the reasons stated above:
1) Defendants’ Motions to Dismiss (Docs.18, 19) are GRANTED . IN PART and DENIED IN PART, as follows
*1007 a) As to Plaintiffs Section 1983 Claim, the Motion is:
i. DENIED as to any Fourteenth Amendment claim against Cosper,
ii. GRANTED WITH LEAVE TO AMEND .as to any First, Fourth, and Fifth Amendment claims against Cosper, and
iii. GRANTED WITH LEAVE TO AMEND as to any Monell claim against the City,
b) the Motion is GRANTED WITHOUT LEAVE TO AMEND as to Plaintiffs’ claim under the California Constitution right to privacy, as to all named Defendants;
c) the Motion is DENIED as to Plaintiffs’ IIED claims with regard to Cos-per, the City, and the County; and
d) the Motion is GRANTED WITHOUT LEAVE TO AMEND as to Plaintiffs NIED claims against all Defendants; and
2) Cosper’s and the City’s Motion to . Strike punitive damages is DENIED,
This Court has gone to great lengths to give Plaintiff direction on deficiencies regarding the current pleadings. The Court has limited time and fewer resources to become involved in drafting pleadings beyond what it has done in this Order. Plaintiff shall have twenty (20) days from electronic service of this Order to file an amended complaint or give notice that she will stand on the current FAC. If the pleadings are not sufficient at that point, the Court will rule in a. succinct manner, and no further leave will be granted.
IT IS SO ORDERED.
Notes
. These background facts are drawn from Plaintiff’s First Amended Complaint (Doc. 16), the truth of which the Court must assume for purposes of a Rule 12(b)(6) motion to dismiss.
. As the FAC alleges that Cosper was acting in his official capacity as a police officer employed by the City when the complained-of acts were, committed, (Doc. 16 ¶ 10), and therefore acting under the color of state law, the first element of a § 1983 claim is alleged sufficiently with regard to Cosper.
. As mentioned above, Mixon does not move to dismiss the § 1983 claim, so the Court need not address her potential .liability under the Fourth Amendment at this time. Moreover, Plaintiff does not contend that the initial strip search by Mixon was a violation of her Fourth Amendment rights, as Plaintiff concedes in the FAC that the search was "intended to prevent the introduction of any contraband items into the jail facility and to maintain the health and welfare of jail inmates and personnel.” (Doc. 16 ¶ 12); see also Florence v. Bd. of Chosen Freeholders of County of Burlington, — U.S. -,
. The City also argues that because the complained-of events took place at the County jail facility, which is not in Lemoore and therefore is not controlled by the City of Lemoóre, that it is impossible to hold the City liable for these events. (Doc. 19-1, at 9). However, Plaintiff alleges that the City failed to train its own officer, Cosper, properly. Assuming Plaintiff properly alleged Cosper’s integral participation in a constitutional violation, the fact that the location of that violation was not controlled by the City is not dispositive.
. The case that Defendants rely in their Mo- , tions to dismiss this cause of action, Katzberg v. Regents of the University of California, declined to address whether article I, section I of the California Constitution permits a plaintiff to 'recover money damages. ' See 29 Cal.4th 300, 313 n. 13,
. Several district court cases appear to assume, without explicitly analyzing, that there is a private right of action for damages under California constitutional right to privacy. Two of these cases concern claims that arose within the context of the Federal Tort Claims Act (FTCA): Meier v. United States,