OTERO FLORES v. UNITED STATES OF AMERICA
ORDER granting 13 Motion to Dismiss for Lack of Jurisdiction. The Clerk is directed to close the case. Signed by JUDGE RICHARD SMOAK on 11/16/2012. (jcw)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
OSCAR OTERO FLORES,
CASE NO. 5:12-cv-50-RS-GRJ
UNITED STATES OF AMERICA,
Before me are United States’ Renewed Motion to Dismiss or in the
Alternative, Motion for Summary Judgment (Doc. 13) and Plaintiff’s Response in
Opposition (Doc. 14). The Court will construe the motion as a motion for
I. STANDARD OF REVIEW
The basic issue before the court on a motion for summary judgment is
“whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S. Ct. 2505, 2512 (1986).
The moving party has the burden of showing the absence of a genuine issue as to
any material fact, and in deciding whether the movant has met this burden, the
court must view the movant’s evidence and all factual inferences arising from it in
the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398
U.S. 144 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
Thus, if reasonable minds could differ on the inferences arising from undisputed
facts, then a court should deny summary judgment. Miranda v. B & B Cash
Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank
& Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However,
a mere ‘scintilla’ of evidence supporting the nonmoving party's position will not
suffice; there must be enough of a showing that the jury could reasonably find for
that party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing
Anderson, 477 U.S. at 251).
Plaintiff was an inmate at the Marianna Federal Correctional Center (“FCI”).
Member of two opposing gangs, the Paisa and the Surenos, were imprisoned at
FCI. On June 30, 2010, members of the Paisa gang attacked Plaintiff, a former
member of the Surenos gang. On June 30, 2010, members of the Surenos and
Paisas gangs were in the recreation yard at FCI Marianna when a fight broke out.
Plaintiff was voluntarily in the yard at this time.
Recreational Specialists Barkley and Milton were on duty in the recreation
yard that evening. Around 6:15 p.m., members of both gangs started to congregate
in different areas of the recreation yard. (Doc. 13-4). Officer Barkley called the
two leaders of the gangs into his office and tried to defuse any tension. The two
leaders shook hands before leaving his office. Id. Officer Barkley then called a
lieutenant and suggested that the yard be recalled. Id. A recall is a mandatory
order to the inmates to immediately return to their residential areas. (Doc. 13-2).
Around this time, there was a recreation “move,” which is when inmates and
enter or leave the recreation yard. Id. Lieutenant Evans noticed that no Hispanics
were leaving the yard, so he and Officer Cassady walked around the yard to make
their presence known to the inmates. Id. Lieutenant Evans saw the two leaders
talking and sensed the tension, so he decided to recall the recreation yard. Id.
When the recall announcement came over the intercom, the Paisas started to attack
the Surenos. Id. Lieutenant Evans ordered the inmates to stop fighting and lie on
the ground, but the inmates continued fighting before they eventually complied
with his order. Id.
Plaintiff claims that employees of FCI had knowledge of a possible attack
and failed to separate the gangs before and during the attack. Plaintiff claims there
was a mandatory duty to conduct searches of the inmates, and the recreation
specialists failed to conduct the searches. (Doc. 14).
Defendant moved for summary judgment claiming that there was no
mandatory directive that officers were required to follow and that Plaintiff’s
allegations fall within the discretionary function exception to the Federal Tort
Claims Act (“FTCA”) waiver of immunity.
Under the FTCA, the government waives its immunity to tortious actions by
its employees committed within the scope of their employment. Nguyen v. United
States, 556 F.3d 1244, 1250-51 (11th Cir. 2009). However, there is a
“discretionary function exception” to this rule. This exception precludes
government liability for “[a]ny claim 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 employee of the Government, whether or not the discretion
involved be abused.” 12 U.S.C. § 2680(a) (2011). “When the discretionary
function exception to the FTCA applies, no federal subject matter jurisdiction
exists.” United States Aviation Underwriters, Inc. v. United States, 562 F.3d 1297,
1299 (11th Cir. 2009).
The Supreme Court established a two-part test to determine if the
discretionary function exception applies. First, courts must determine whether an
act “involv[es] an element of judgment or choice.” United States v. Gaubert, 499
U.S. 315, 322 (1991). If the court decides the act did involve an element of
judgment or choice, then courts have to determine “whether that judgment is of the
kind that the discretionary function exception was designed to shield.” Id.
Plaintiff argues there was a mandatory requirement that Recreational
Specialists randomly shake down and search inmates on the recreation yard. The
position description of a Recreational Specialist states that “[t]he incumbent is
required to shake down inmates, conduct visual searches of inmate work and living
area for contraband, and is responsible for immediately responding to any
institutional emergencies.” (Doc. 14-2).
However, Plaintiff fails to prove, and the affidavits provided by Defendant
refute, that the Recreation Specialists were required to search all inmates as they
entered the recreation yard every day. In fact, the evidence shows that
Recreational Specialists had discretion in this area. Recreation Specialist Katina
Bell testified in her Declaration, “Neither my position description nor any Bureau
of Prisons policy, regulation, directive or FCI Marianna order directs when or how
often I must engage in these measures [referring to searching inmates] as this is left
to my discretion as recreation specialist.” (Doc. 13-3). This is also supported by
Officer’s Barkley’s Declaration (Doc. 13-4), Officer Milton’s Declaration (Doc.
13-5), and Officer Henson’s Declaration (Doc. 13-6). Therefore, the first part of
the discretionary function test is met.
The discretionary function exception was enacted to “prevent judicial
‘second-guessing’ of legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action in tort.” United
States v. Gaubert, 499 U.S. 315, 322-23 (1991). Thus, “when properly construed,
the exception protects only governmental actions and decisions based on
considerations of public policy.” Id. at 323. The Eleventh Circuit has concluded
that decisions related to how inmates are supervised are susceptible to policy
analysis. Cohen v. United States, 151 F.3d 1338, 1344 (11th Cir. 1998). In this
case, the supervision of inmates on the recreation yard falls into the category of
“inmate supervision” that is susceptible to a policy analysis. Therefore, the second
part of the discretionary function test is met.
1. Defendant’s Motion for Summary Judgment (Doc. 13) is GRANTED.
2. The Clerk is directed to close the case.
ORDERED on November 16, 2012.
/s/ Richard Smoak
UNITED STATES DISTRICT JUDGE
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