Rodriguez-Rivera v. United States of America

Filing 15

ORDER: Defendant's Motion to Dismiss 6 is denied in part and granted in part. Counts I and II of the complaint are not dismissed and Defendant shall file an answer to Counts I and II of the complaint within 14 days of this Order. Counts III and IV of the complaint are dismissed. Signed by Judge James S. Moody, Jr on 10/24/2012. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

CARMEN RODRIGUEZ-RIVERA, as
Personal Representative of the Estate of
PEDRO JAVIER RIVERA AMADOR,
Plaintiff,
v.

Case No. 8:12-cv-856-T-30TBM

UNITED STATES OF AMERICA,
Defendant.
_____________________________________/

ORDER
THIS CAUSE comes before the Court upon Defendant United States of America’s
Motion to Dismiss (Dkt. 6), Plaintiff Carmen Rodriguez-Rivera’s Response in opposition
(Dkt. 9), and Defendant’s Reply (Dkt. 14). The Court, having considered the motion,
response, reply, and being otherwise advised of the premises, concludes that the motion
should be denied with respect to Counts I and II and granted with respect to Counts III and
IV.
BACKGROUND
On April 19, 2012, Plaintiff Carmen Rodriguez-Rivera, as personal representative of
the estate of Pedro Javier Rivera Amador, filed the instant complaint under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq. Plaintiff’s complaint alleges claims against
Defendant United States of America stemming from injuries and losses sustained when a

vehicle driven by Marine Corps Captain Scott P. Sciple collided with Plaintiff’s vehicle,
injuring Plaintiff and killing her husband, Pedro Javier Rivera Amador.
At all times material, Sciple was a United States Marine. Sciple was deployed four
times. During these deployments, Sciple witnessed horrific events, came under attack, and
sustained wounds. On a number of occasions, Sciple consumed alcohol and exhibited erratic
behavior and memory loss. He was also outwardly skittish at times in response to loud
noises and explosions.
On June 4, 2009, Sciple sustained wounds from an enemy 107 mm rocket attack at
COP Raway and was awarded the Purple Heart. The point of impact of the rocket was
approximately 30 feet from Sciple. Sciple sustained significant wounds to his right forearm
that required a combat application tourniquet to stop the bleeding. Sciple lost a significant
volume of blood due to arterial laceration and tissue damage to his right forearm and was
evacuated via helicopter. Sciple’s command relayed concerns to Naval Medical Center San
Diego (NMCSD) that Sciple may be suffering from Post-Traumatic Stress Disorder (PTSD).
On June 30, 2009, a neuropsychological assessment of Sciple indicated a “history of
3 blast exposures since 2004" with mild deficits in verbal learning and attention. The mental
deficits were attributed to mild head injury and “medication effects from his pain
medications.” The neuropsychological assessment on June 30, 2009, declared Sciple
“cognitively fit for full duty” with “no interventions deemed necessary to address his
attention problems”. The evaluation also indicated a mild cognitive disorder was possible

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but ruled out Traumatic Brain Injury (“TBI”). The neuropsychologist recommended phone
monitoring by C5 personnel to track his recovery.
From June 17, 2009 to September 22, 2009, Sciple was assigned to the West Coast
Wounded Warrior Battalion. In 2009, Sciple exhibited PTSD symptoms, such as memory
loss, flashbacks, and erratic sleep habits.
From September 23, 2009 to April 18, 2010, Sciple served as commander of H&S
Company, 2nd Battalion, 1st Marines. Lt. Col. M.S. Reid, Commanding Officer 2nd
Battalion, 1st Marines, considered Sciple fit for duty for an assignment as CO of H&S
Company.
On the post deployment health assessment (PDHA) dated November 20, 2009, Sciple
did not screen positive for TBI, but still had headaches and sleep and balance problems. On
the PDHA dated November 20, 2009, Sciple indicated he drank 3 to 4 times a week and
consumed an average of 4 drinks during those times.
During a post-deployment company grade officer social event, Sciple went to the
wrong place to meet the group, even though he was very familiar with the location. His peers
noted this as “another example of how everyday life was more difficult for him.” In
December 2009, Sciple became intoxicated and belligerent during a social outing. His peers
noted that alcohol seemed to have a more deleterious effect on Sciple than normal.
On February 23, 2010, NMCSD Ortho found Sciple “full duty and worldwide
deployable. Cleared for deployment”. A March 23, 2010, Marine Corps Wounded/Ill
Injured Tracking System entry states that “SNM is full duty and in good sprits. No request
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for support at this time. He is doing good and no new issues.” On the PDHA dated April 19,
2010, Sciple indicated no issues of concerns. A medical officer reviewed the form and reaffirmed full duty status. There were no entries from a mental health professional.
On April 20, 2010, Sciple received Temporary Additional Duty (TAD) orders to
SOCCENT MacDill AFB Tampa, Florida. Sciple’s Battalion Commander made the final
decision to send him TAD to SOCCENT with concurrence of the regiment. Sciple’s
Battalion Commander was aware of Sciple’s past but did not screen his medical records or
make contact with MARCENT to advise of his past. Sciple’s Battalion Commander
considered Sciple “fit for duty” and “his past (although compelling) really wasn’t a huge
concern considering the billet he was going to fill.” Sciple was disappointed about leaving
his Battalion.
On April 18, 2010, Sciple checked in with the MARCENT LNO at Camp LeJeune,
NC for PTP training. Sciple’s TAD orders directed him to report to Commander, U.S.
Marines Corps Forces, Central Command, MacDill Air Force Base, Florida, no later than
2359 hours, April 24, 2010, for TAD with SOCCENT.
On April 23, 2010, Sciple arrived in Tampa, Florida. Sciple rented a car from
Enterprise Rent-A-Car through the contract negotiated by the Marine Corps for its
servicemen and women. During the early morning hours of April 25, 2010, Sciple left his
Marine Corps rented apartment and got into his Marine Corps rented vehicle to purchase
tobacco. Ultimately, he wound up over ten miles away, traveling the wrong way down
Interstate 275. Sciple struck a vehicle head on, killing Pedro Javier Rivera Amador and
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injuring Carmen Rodriguez-Rivera. Following the crash, law enforcement authorities
investigating the accident tested Sciple’s blood alcohol level, which was 3 times the legal
limit. Sciple had no memory of consuming alcohol that evening. He also did not remember
how he ended up on Interstate 275 going the wrong way.
Plaintiff’s complaint alleges two counts of motor vehicle negligence based on
allegations that Defendant is liable for the actions of its military employee, Sciple, because
he was officially on Temporary Additional Duty and had reported for duty to his
commanding officer as of the date and time of the incident.
Plaintiff’s complaint also includes two counts of negligent training, supervision, and
retention based on allegations that Defendant owed a legal duty to the general public to
adequately train, supervise, and monitor its fighting forces. Plaintiff further alleges that:
Defendant knew, or reasonably should have known that deployments to Iraq and Afghanistan
substantially increased the likelihood that its soldiers may experience symptoms of PTSD
upon their return; multiple deployments substantially increased the likelihood that a
particular soldier may suffer PTSD to a greater degree than what may be considered normal;
such soldiers are at risk of harming themselves or others as a result of PTSD-induced
violence, rage, memory loss, “blacking out” and “dis-associative behavior”; many soldiers
subjected to “concussive forces” caused by explosions would suffer TBI to some degree; and
such soldiers are at risk of harm to themselves or others.
Plaintiff claims that Defendant negligently failed to diagnose Sciple’s PTSD and TBI,
negligently failed to provide appropriate treatment, negligently classified Sciple as “fit for
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duty” without restrictions, negligently allowed him to rent a car and drive, and negligently
failed to alert the commanding officer at SOCCENT that Sciple posed a risk to himself or
others.
Defendant now moves to dismiss Counts I and II of Plaintiff’s complaint under Fed.
R. Civ. P. 12(b)(1) on the ground that Sciple was not acting in the scope of his federal
employment with the military at the time of the subject accident.
Defendant also moves to dismiss Counts II and III of Plaintiff’s complaint under Fed.
R. Civ. P. 12(b)(1) because the negligence claims fall within the discretionary function
exception to the FTCA.
STANDARD OF REVIEW
A Rule 12(b)(1) motion challenges the district court’s subject matter jurisdiction and
takes one of two forms: a “facial attack” or a “factual attack.” A “facial attack” on the
complaint requires the court to assess whether the plaintiff has alleged a sufficient basis for
subject matter jurisdiction. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). A
“factual attack,” on the other hand, challenges the existence of subject matter jurisdiction
based on matters outside the pleadings. Id. Under a factual attack, the Court may hear
conflicting evidence and decide the factual issues that determine jurisdiction. See Colonial
Pipeline Co. v. Collins, 921 F.2d 1237, 1243 (11th Cir. 1991).

However, if “the

jurisdictional basis of a claim is intertwined with the merits, the district court should apply
a Rule 56 summary judgment standard when ruling on a factual attack.” Lawrence, 919 F.2d
at 1530.
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Here, Defendant raises factual challenges to the Court’s subject matter jurisdiction and
is submitting matters outside the pleadings.
DISCUSSION
I.

Defendant’s Motion to Dismiss Counts I and II of Plaintiff’s Complaint
The FTCA provides jurisdiction only for torts “caused by the negligent or wrongful

act or omission of any employee of the Government while acting within the scope of his
office of 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)(1). Defendant argues that the Court does not have
subject matter jurisdiction over Plaintiff’s motor vehicle negligence counts because Sciple
was not acting within the scope of his federal employment at the time of the accident.
The Court concludes that it would be premature to rule on Defendant’s argument
based on the limited record. The Eleventh Circuit’s opinion in Lawrence is directly on point
as to why a scope of employment analysis is premature at this stage. Like this case,
Lawrence involved a damages claim resulting from a car accident between two automobiles,
one driven by an employee of the United States who consumed alcoholic beverages at the
office Christmas party and the other driven by the plaintiff. See 919 F.2d at 1526. The
district court dismissed the case for lack of subject matter jurisdiction of the suit brought
under the FTCA. See id. The Eleventh Circuit reversed, reasoning: “The existence of
plaintiff’s cause of action depends on whether [the federal employee] was acting within the
course and scope of his employment. The pertinent inquiry will resolve both the question
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of subject matter jurisdiction and a necessary element of the tort claim.” Id. at 1529. The
Eleventh Circuit found: “When the jurisdictional basis of a claim is intertwined with the
merits, the district court should apply a Rule 56 summary judgment standard when ruling on
a motion to dismiss which asserts a factual attack on subject matter jurisdiction.” Id. at 1530.
The Eleventh Circuit noted, however, the limited scope of its holding: “We express no
opinion on the merits of the plaintiff’s claim. We simply hold that under the law of this
circuit ... federal claims should not be dismissed on motion for lack of subject matter
jurisdiction when that determination is intermeshed with the merits of the claim and when
there is a dispute as to a material fact.” Id. at 1530-31.
In the instant case, the jurisdictional basis of the motor negligence claims is
intertwined with the merits of the claims. Under this scenario, the Court should apply a Rule
56 summary judgment standard. But it would be premature to do so based on the limited
record before the Court. As stated in Blumel v. Mylander, 919 F. Supp. 423, 428 (M.D. Fla.
1996), Rule 56 “implies [that] district courts should not grant summary judgment until the
non-movant has had an adequate opportunity for discovery.” Furthermore, the Eleventh
Circuit has decisively determined that “summary judgment may only be decided upon an
adequate record.” Snook v. Trust Co. of Ga. Bank, 859 F.2d 865, 870 (11th Cir. 1988).
Accordingly, Defendant’s motion to dismiss Counts I and II is denied without
prejudice to renew this argument at the summary judgment stage.

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II.

Defendant’s Motion to Dismiss Counts III and IV of Plaintiff’s Complaint
Defendant moves to dismiss Counts III and IV, which allege negligent training,

supervision, and retention of an employee resulting in wrongful death and personal injury on
the ground that the conduct of which Plaintiff complains falls within the discretionary
function exception to the FTCA. Unlike Counts I and II, this jurisdictional basis is not
intertwined with the merits of the claims.
The FTCA provides an exception for a claim based upon: “an act or omission of an
employee of the Government exercising due care ... based upon the exercise or performance
or the failure to exercise or perform a discretionary function or duty on the part of a federal
agency or an employee of the Government, whether or not the discretion involved be
abused.” 28 U.S.C. § 2680(a). The Eleventh Circuit follows the Supreme Court’s two-step
test to determine whether a governmental act or omission falls within the ambit of the
discretionary function exception. First, a court must analyze whether the act “involv[es] an
element of judgment or choice.” U.S. v. Gaubert, 499 U.S. 315, 322 (1991) (quoting
Berkovitz v. U.S., 486 U.S. 531, 536 (1988)); Hughes v. U.S., 110 F.3d 765, 767 (11th Cir.
1997). “[I]f a ‘federal statute, regulation, or policy specifically prescribes a course of action
for an employee to follow,’” there is no judgment or choice involved. Gaubert, 499 U.S. at
322 (quoting Berkovitz, 486 U.S. at 536); see also Phillips v. U.S., 956 F.2d 1071, 1076 (11th
Cir. 1992) (“Where there exists a mandatory responsibility, there is no room for a policy
choice.”). The inquiry focuses on “whether the controlling statute or regulation mandates

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that a government agent perform his or her function in a specific manner.” Hughes, 110 F.3d
at 768.
If a court concludes that the conduct involves an element of judgment or choice, the
court must then analyze “‘whether that judgment is of the kind that the discretionary function
exception was designed to shield.’” Gaubert, 499 U.S. at 322-23 (quoting U.S. v. Varig
Airlines, 467 U.S. 797, 813 (1984)). The exception is intended to prevent judicial “secondguessing of legislative and administrative decisions grounded in social, economic, and
political policy through the medium of an action in tort.” Id. (quoting Varig Airlines, 467
U.S. at 814). Thus, “when properly construed, the exception ‘protects only governmental
actions and decisions based on considerations of public policy.’” Gaubert, 499 U.S. at 323
(quoting Berkovitz, 486 U.S. at 537).
Under the second part of the test, the court should look at whether the questioned act
is “‘susceptible to policy analysis.’” Hughes, 110 F.3d at 768 (quoting Powers v. U.S., 996
F.2d 1121, 1125 (11th Cir. 1993)). The exception does not require there to have been actual
“weighing of policy considerations.” Hughes, 110 F.3d at 768. Nor is it limited to decisions
at the policy or planning level; it may include day-to-day management. See Gaubert, 499
U.S. at 325.
The Court notes that Plaintiff’s complaint does not allege a specific and binding
directive that addresses Defendant’s actions. Plaintiff argues, however, that she intends to
show that the “military failed to follow the mandated procedures for PDHA.” Plaintiff makes
this point generally and does not cite to any specific provision of the PDHA. The Court’s
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review of the PDHA does not demonstrate a specific and binding directive that addresses any
of the actions alleged in Plaintiff’s complaint that Defendant allegedly failed to take or that
Defendant took in error. (Dkt. 6, Exs. A & B thereto). A review of the regulations
applicable to the health assessments for post-deployment soldiers demonstrates that health
care professionals are granted discretion in applying them.

See id.

The medical

professionals involved in Sciple’s care exercised their professional judgment in assessing his
health by implementing the practices described in the relevant policies. It is clear that the
decisions of the health care providers who assess returning soldiers and conduct screening
for health problems including PTSD and TBI require judgment as to which treatment options,
if any, are necessary. This judgment also is reliant upon the information the soldier divulges
with respect to his or her mental and physical health during the process.
There is no statute, regulation, or policy that required Sciple’s medical providers to
reach different conclusions about the lack of a PTSD or TBI diagnosis, or that mandated that
Defendant should have reached a different conclusion about Sciple’s fitness for duty.
Likewise, there is no mandate or directive that Sciple’s commanding officer ignored when
he ordered Sciple to TAD at MacDill. In sum, the first part of the two-part test is satisfied.
Turning to the second part of the test, the Court agrees with Defendant that the
decisions about the frequency and nature of post-deployment health assessments, the
availability of assistance, and the propriety of referring soldiers for additional care involve
public policy. Similarly, decisions related to the military’s conclusion that a soldier is fit for
duty are clearly grounded in public policy.
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Plaintiff’s focus on Defendant’s abuse of discretion when it cleared Sciple for worldwide duty and allowed him to drive a dangerous instrumentality is unpersuasive because
numerous cases support the proposition that the discretionary function exception applies even
when discretion is abused, through negligence or otherwise. See, e.g., Hughes, 110 F.3d at
768 n.1; Ochran v. U.S., 117 F.3d 495, 502 n.2 (11th Cir.1997); Autery, 992 F.2d at 1528.
In fact, the Eleventh Circuit has explicitly stated that “[o]ur concern under the discretionary
function exception is not whether the allegations of negligence are true.” Hughes, 110 F.3d
at 768 n.1 (emphasis added).
Finally, Plaintiff argues, in the alternative, that a theory of liability grounded on
negligent entrustment of a vehicle is not barred by the discretionary exception because it
involves a “more localized routine judgment” that is not grounded in policy. The Court is
unpersuaded by this argument because it overly parses Defendant’s overall decision that
Sciple was fit for duty, which ultimately resulted in Sciple’s action of renting the vehicle that
caused the accident, into separate actions. See Mid–South Holding Company, Inc. v. U.S.,
225 F.3d 1201, 1207 (11th Cir. 2000) (“[A]lmost any exercise of governmental discretion
could be overly parsed so as to focus on minute details of sub-decisions to the point that any
relationship to policy would appear too attenuated.... [S]uch tunnel-visioned analyses would
render the discretionary function exception nugatory and open virtually every decision that
implements a governmental decision to liability”) (alterations in original) (quoting
Baldassaro v. U.S., 64 F.3d 206, 211-12 (5th Cir. 1995)).

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In sum, the discretionary function exception applies to Plaintiff’s negligence claims
in Counts III and IV of the complaint. Accordingly, the Court lacks subject matter
jurisdiction over Counts III and IV and they must be dismissed.
It is therefore ORDERED AND ADJUDGED that, for the reasons stated herein:
1.

Defendant United States of America’s Motion to Dismiss (Dkt. 6) is denied in
part and granted in part.

2.

Counts I and II of the complaint are not dismissed and Defendant shall file an
answer to Counts I and II of the complaint within fourteen (14) days of this
Order.

3.

Counts III and IV of the complaint are dismissed.

DONE and ORDERED in Tampa, Florida on October 24, 2012.

Copies furnished to:
Counsel/Parties of Record
S:\Even\2012\12-cv-856.mtdismiss6.frm

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