Galto v. United States of America

Filing 53

ORDER that Defendant's 48 Motion for Summary Judgment is granted. The Clerk shall terminate this action. Signed by Judge David G Campbell on 5/15/2014.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Anthony Galto,

No. CV-13-00017-PHX-DGC
Plaintiff,

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v.

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ORDER

United States of America,

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Defendant.

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Defendant has moved for summary judgment on all claims in Plaintiff’s Third

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Amended Complaint. Doc. 48. The motion has been fully briefed and no party has

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requested oral argument. For the reasons stated below, the Court will grant the motion.

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I.

Background.

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Plaintiff was a truck driver for Eagle Express lines, a contract trucking company

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that handled mail for the United States Postal Service (“USPS”). Doc. 49, ¶ 1. On

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April 15, 2011, Plaintiff was unloading mail cages at the General Mail Facility in

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Phoenix when a USPS employee, Jeff Mollohan, allegedly grew angry with Plaintiff for

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placing mail cages in Mollohan’s way and threw three mail cages at Plaintiff in

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succession. Doc. 48 at 2; Doc. 49, ¶¶ 4-13. Plaintiff claims that Mollohan also charged

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him with clenched fists and shouted obscenities and threats. Doc. 49, ¶¶ 12-15. Plaintiff

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reported the incident to his supervisor, describing it as an assault, and typed out a

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statement that described it the same way. Id., ¶¶ 22-24.

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Plaintiff made a claim with the USPS for $522,073.16, which was denied in

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writing on November 15, 2012. Doc. 1 at 1. Plaintiff then brought this action, seeking

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damages from the United States for the actions of Mollohan and for negligently retaining

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and supervising Mollohan. Id. at 2-3.

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II.

Analysis.

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Congress has waived the sovereign immunity of the United States in the Federal

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Tort Claims Act (“FTCA”), but only for certain torts. The waiver does not extend to

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claims “arising out of assault, battery,” and other enumerated intentional torts. 28 U.S.C.

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§ 2680(h); Sabow v. United States, 93 F.3d 1445, 1456 (9th Cir. 1996). Thus, Plaintiff

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can bring a claim against the United States for the negligence of Mollohan or other

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government employees, but not for their intentional torts.

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Plaintiff’s complaint includes a claim for negligent retention and supervision, but

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Defendant’s motion contends that Plaintiff has no evidence to support such a claim.

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Plaintiff concedes that the record does not support a claim for negligent retention and

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supervision of Mollohan and that Defendant is entitled to summary judgment on this

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claim. Doc. 50 at 1.

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Plaintiff’s complaint also includes a claim for Mollohan’s alleged injury of

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Plaintiff. Defendant argues that this claim is based on an intentional tort by Mollohan

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and therefore is barred by § 2680(h). Plaintiff argues that summary judgment is not

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warranted because genuine issues of material fact exist as to whether Mollohan acted

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intentionally or negligently in causing Plaintiff’s injuries.

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complaint alleges that “Defendant’s employee, JEFF MOLLOHAN, negligently shoved

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metal cages into Plaintiff resulting in serious injuries.” Doc. 16 at 2.

Plaintiff’s third amended

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In deciding whether Plaintiff’s claim is barred by § 2680(h), the Court must look

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beyond Plaintiff’s classification of the cause of action to examine whether the conduct

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upon which the claim is based constitutes one of the torts listed in § 2680(h).” Sabow,

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93 F.3d at 1456; see also Mt. Homes, Inc. v. United States, 912 F.2d 352, 356 (9th

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Cir.1990) (“[W]e look beyond [the complaint’s] characterization [of the cause of action]

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to the conduct on which the claim is based.”); Thomas-Lazear v. Federal Bureau of

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Investigation, 851 F.2d 1202, 1207 (9th Cir.1988) (“This circuit looks beyond the labels

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used to determine whether a proposed claim is barred [by the intentional torts

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exception]”). As the Supreme Court has explained, Plaintiff cannot avoid the intentional-

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tort bar of § 2680(h) through a “semantical recasting of events.”

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Shearer, 473 U.S. 52, 55 (1985).

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United States v.

The evidence in this case simply does not support a claim of negligence on the

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part of Mollohan.

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When Plaintiff was deposed, he provided this description of

Mollohan’s actions:

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Q:

Is there any chance that the three cages that he – that he pushed
toward you were an accident?

A:

No.

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***

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Q:

Did it appear to you that he meant to throw each of the cages at you?

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Mr. HOWARD: Form, foundation.

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THE WITNESS: Absolutely.

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Q:

You described what he did to you as an assault. Is that right?

A:

Yeah. Yes.

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***

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Q:

When you made the statement following this incident, did you
describe what he did to you as an accident?

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No.

Q:

You didn’t believe it was an accident.

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MR. HOWARD: Foundation.
THE WITNESS: I believe it was done on purpose.
Doc. 49-2 at 15.

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Plaintiff testified that Mollohan’s demeanor during this encounter was that of a

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“raging lunatic.” Id. Plaintiff said Mollohan “came after me.” Id. As to how the cages

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hit Plaintiff, his testimony was also clear:

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Q:

When you – when you drafted your typewritten statement, you
characterized yourself as having been assaulted.

A:

Yes.

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Q:

[T]he first cage was pushed directly at you?

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A:

Yes.

Q:

And hit you?

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A:

Yes.

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Q:

The second cage, did Mollohan push that one directly at you?

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Yes.

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Q:

And did he hit you?

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A:

Yes.

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Id.

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Plaintiff’s own testimony thus clearly describes an intentional assault. The only

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evidence Plaintiff identifies to support his negligence theory is a statement by Mollohan

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that he pushed the cages to the side of Plaintiff rather than at him. Doc. 51, ¶¶ 2-3.

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When read in its entirety, however, Mollohan’s statement is a clear denial that the cages

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hit Plaintiff at all. Doc. 51-2 at 4 (“(Q): Did he ever say you hit him with a cage? (A):

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No.”), 9 (“I pushed nothing in his direction,” and “I was pushing [the cages] away I

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pushed cages to the side of the stack he made already. The rest I pushed to the north.”).

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Mollohan denied that the cages made any contact with Plaintiff. His statement therefore

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does not constitute evidence that the cages hit Plaintiff through Mollohan’s negligence.

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Plaintiff also argues that the opinion of a defense expert negates any assertion of

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an intentional assault. Doc. 50 at 2. But the defense expert did not opine that Mollohan

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negligently hit Plaintiff with the cages – he opined that the cages never struck Plaintiff.

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Doc. 50 at 2. The expert’s opinion does not support a claim that Mollohan negligently hit

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Plaintiff.

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Plaintiff has presented no evidence from which a reasonable jury could conclude

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that Mollohan negligently injured Plaintiff. Looking beyond Plaintiff’s characterization

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of the cause of action to the evidence in this case, as the Ninth Circuit requires, Sabow,

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93 F.3d at 1456, only two results are possible. Either Mollohan intentionally assaulted

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Plaintiff or Plaintiff was never struck by the cages. If the jury were to accept the first

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result, the claim would be barred by § 2680(h). If the jury were accept the second, no tort

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recovery would be possible. Thus, viewing the evidence in the light most favorable to

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Plaintiff, Defendant is entitled to judgment as a matter of law.

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IT IS ORDERED that Defendant’s motion for summary judgment (Doc. 48) is

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granted. The Clerk shall terminate this action.

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Dated this 15th day of May, 2014.

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