Awad v. United States of America
Filing
52
ORDER ADOPTING 43 REPORT AND RECOMMENDATIONS; GRANTING 51 Motion for Leave to File; and GRANTING 26 Motion to Dismiss for Lack of Jurisdiction by District Judge Martha Vazquez. See Order for Specifics. (gr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MOHAMMAD ABED AWAD,
Plaintiff,
v.
CV No. 15-373 MV/CG
UNITED STATES OF AMERICA,
Defendant.
ORDER ADOPTING CHIEF MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on the Chief Magistrate Judge’s Proposed
Findings and Recommended Disposition (the “PFRD”), (Doc. 43), filed April 13, 2018;
Plaintiff’s Objections to the United States Magistrate Judge’s Proposed Findings and
Recommended Disposition Regarding Defendant’s Motion to Dismiss for Lack of
Jurisdiction (the “Objections”), (Doc. 44), filed April 26, 2018; Defendant’s Response of
the United States in Opposition to Plaintiff’s Objections to the United States Magistrate
Judge’s Proposed Findings and Recommended Disposition (the “Response”), (Doc. 48),
filed May 18, 2018; and Plaintiff’s Reply to Defendant’s Response to Plaintiff’s
Objections to the United States Magistrate Judge’s Proposed Findings and
Recommended Disposition Regarding Defendant’s Motion to Dismiss for Lack of
Jurisdiction (the “Reply”), (Doc. 49), filed May 23, 2018. This matter is also before the
Court on Plaintiff’s Unopposed Nunc Pro Tunc Motion to File Reply to Government’s
Response to Plaintiff’s Objections to Magistrate Judge’s Proposed Findings and
Recommended Disposition, (Doc. 51), filed June 5, 2018.
On April 13, 2018, the Chief Magistrate Judge found that the Court does not have
subject matter jurisdiction over Plaintiff’s claims because they fall within the
discretionary function exception of the Federal Tort Claims Act’s (the “FTCA”) waiver of
sovereign immunity. (Doc. 43 at 24). Therefore, the Chief Magistrate Judge
recommended that Defendant’s Rule 12(B)(1) and Rule 56 Motion to Dismiss and
Memorandum in Support (the “Motion to Dismiss”), (Doc. 26), be granted, and that
Plaintiff’s claims be dismissed without prejudice. Id. at 24-25. The parties were notified
that written objections were due within fourteen days. Id. at 25. Plaintiff filed his
Objections on April 26, 2018. (Doc. 44). Following a de novo review of the record and
the PFRD, the Court will: (1) grant Plaintiff’s Unopposed Nunc Pro Tunc Motion to File
Reply to Government’s Response to Plaintiff’s Objections to Magistrate Judge’s
Proposed Findings and Recommended Disposition, (Doc. 51); (2) overrule Plaintiff’s
Objections; (3) grant Defendant’s Motion to Dismiss, (Doc. 26); and (4) adopt the PFRD
and dismiss this case without prejudice.
I.
Background
This case arises from Plaintiff’s arrest for distribution of a controlled substance.
(Doc. 43 at 2). On February 20, 2012, at a smoke shop in Albuquerque, New Mexico, an
Albuquerque Police Department (“APD”) officer purchased a banned substance as part
of an undercover operation. (Doc. 23, ¶¶ 21, 24); (Doc. 23-7). Plaintiff was the
registered owner of the shop, and the officer’s report stated that Plaintiff “appeared to
be” the person who sold the controlled substance to him. (Doc. 23-7). However, it was
later determined that the person who sold the substance to the officer was Plaintiff’s
brother, Belal Awad, who resembles Plaintiff. (Doc. 23, ¶¶ 24, 29).
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On March 18, 2014, Drug Enforcement Agency (“DEA”) Agent S.H. submitted to
the Court applications for search warrants and supporting affidavits to search Plaintiff’s
residence and several other locations. Id., ¶ 34. The affidavits stated that Agent S.H.
reviewed a video of the February 20, 2012 purchase and identified Plaintiff as the
person who sold the controlled substance to the APD officer. Id., ¶ 35. On March 20,
2014, the DEA searched Plaintiff’s residence and arrested Plaintiff without a warrant.
Id., ¶¶ 37-38. On March 21, 2014, DEA Agent J.M. filed a Criminal Complaint with
supporting affidavit stating that Agents J.M. and S.H. reviewed the February 20, 2012,
video and identified Plaintiff as the person who sold the controlled substance. Id., ¶ 40;
(Doc. 23-2). Plaintiff was charged with distribution of a controlled substance and was
incarcerated from March 20, 2014 to September 9, 2014. Id., ¶¶ 41-42. On September
9, 2014, the United States Attorney’s Office dismissed the charge against Plaintiff, and
Plaintiff was released from incarceration. Id., ¶¶ 74-75. On September 17, 2014, Agent
S.H. filed a Criminal Complaint with a supporting affidavit stating that Belal Awad was
the person in the February 20, 2012 video, and charged him with distribution of a
controlled substance. (Doc. 23-5).
In Plaintiff’s Amended Complaint, Plaintiff brought three tort claims against
Defendant under the FTCA for: (1) negligence in the identification of Plaintiff as the
individual in the February 20, 2012, video who distributed a controlled substance, and
for negligently arresting, charging, and imprisoning Plaintiff based on that identification,
(Doc. 23, ¶¶ 84-92); (2) the intentional tort of false arrest based on the incorrect
identification of Plaintiff in the video, (id., ¶¶ 93-99); and (3) the intentional tort of false
imprisonment, also based on the incorrect identification of Plaintiff in the video, (id., ¶¶
3
100-06). In Defendant’s Motion to Dismiss, Defendant contends the Court lacks subject
matter jurisdiction to hear Plaintiff’s claims because Defendant’s sovereign immunity is
not waived by the FTCA. (Doc. 26 at 6).
On March 28, 2018, the Court referred this case to Chief Magistrate Judge Garza
to perform legal analysis and recommend an ultimate disposition. (Doc. 42). In the
PFRD, the Chief Magistrate Judge explained the FTCA waives sovereign immunity and
authorizes suits against the United States
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.
(Doc. 44 at 4-5) (quoting 28 U.S.C. § 1346(b)(1)). However, the “discretionary function”
exception to the FTCA provides that the United States’ immunity is maintained 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 an employee of the
Government, whether or not the discretion involved is abused.” 28 U.S.C. § 2680(a).
The Chief Magistrate Judge first considered whether the discretionary function
exception to the FTCA’s waiver of sovereign immunity applies to Plaintiff’s claim that the
agents were negligent in identifying Plaintiff as the individual in the 2012 video, and in
arresting, charging, and imprisoning Plaintiff based on that identification. (Doc. 44 at 1220). The Chief Magistrate Judge conducted the two-prong analysis set out in Berkovitz
v. United States, 486 U.S. 531, 536-37 (1988). (Doc. 44 at 12-20). This analysis
consists of determining: (1) whether the acts or omissions of the government employee
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were discretionary; and (2) whether the governmental actions and decisions were based
on considerations of public policy. 486 U.S. at 536-37. Under the first prong, the Chief
Magistrate Judge found the agents’ acts or omissions were discretionary because their
decisions involved elements of judgment or choice and they were not bound by policies
that prescribed a specific course of action for them to follow. Id. at 12-18. Under the
second prong, the Chief Magistrate Judge found the agents’ actions and decisions were
based on considerations of public policy, such as the use of DEA funds, relationships
with local law enforcement entities, and consideration of community and officer safety
issues. Id. at 18-20. Therefore, the Chief Magistrate Judge found that Plaintiff’s
negligence claim falls within the discretionary function exception of the FTCA’s waiver of
sovereign immunity. Id. at 20.
Next, the Chief Magistrate Judge considered whether Plaintiff’s intentional tort
claims of false arrest and false imprisonment are also barred under the discretionary
function exception, or whether they fall within the law enforcement proviso of the
intentional torts exception of the FTCA. Id. at 20-24. The intentional tort exception of the
FTCA provides that sovereign immunity is not waived for certain intentional torts,
including false imprisonment and false arrest, except when those torts arise from the
acts or omissions of law enforcement officers. Id. at 20. The Chief Magistrate Judge
relied on the Tenth Circuit’s decision in Garling v. United States Envtl. Prot. Agency,
849 F.3d 1289, 1298 (10th Cir. 2017), where the Tenth Circuit cautioned that “a plaintiff
may not recast a negligence tort as an intentional tort to take advantage of the law
enforcement exception to” the FTCA, and that courts should look to the substance of
the claims “and not how [the plaintiffs] labeled them in their complaint.” Id. at 23. The
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Chief Magistrate Judge noted that Plaintiff’s Amended Complaint does not contain
allegations that the agents deliberately misidentified Plaintiff as the person in the 2012
video, that the agents knew that Plaintiff was misidentified, or that they arrested or
imprisoned him knowing that he was not the subject of the video. Id. at 23-24.
Therefore, the Chief Magistrate Judge found that Plaintiff’s intentional tort claims
amount to claims for negligence, so the law enforcement proviso does not apply in this
case. Therefore, the Chief Magistrate Judge recommended that Defendant’s Motion to
Dismiss be granted, and that Plaintiff’s claims be dismissed without prejudice. Id. at 24.
II.
Analysis
A. Plaintiff’s Motion to File a Reply to Defendant’s Response to Plaintiff’s
Objections
Plaintiff asks the Court to allow him to file a reply to address arguments raised in
Defendant’s Response to Plaintiff’s Objections to the PFRD. (Doc. 51 at 2). Defendant
does not object to Plaintiff’s request. Id. at 3. Although Federal Rule of Civil Procedure
72(b) contains no provision allowing a reply to a party’s objections, in the interests of
justice the Court will grant Plaintiff’s motion to file a reply and will consider the reply.
B. Law Regarding Objections
When resolving objections to a magistrate judge’s recommendations, the district
judge must make a de novo determination regarding any part of the recommendations
to which a party has properly objected. 28 U.S.C. § 636(b)(1)(C). Filing objections that
sufficiently specific and address the primary issues in the case “advances the interests
that underlie the Magistrate’s Act, including judicial efficiency.” United States v. One
Parcel of Real Prop., With Bldgs., Appurtenances, Improvements, & Contents, 73 F.3d
1057, 1059 (10th Cir. 1996). Objections must be timely and specific to preserve an
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issue for de novo review by the district court or for appellate review. Id. at 1060.
Additionally, issues “raised for the first time in objections to the magistrate judge’s
recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th
Cir. 1996); see also U.S. v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“In this
circuit, theories raised for the first time in objections to the magistrate judge’s report are
deemed waived.”).
C. Plaintiff’s Objections
Plaintiff contends the Chief Magistrate Judge erred by: (1) finding that Plaintiff’s
negligence claim falls within the discretionary function exception of the FTCA’s waiver of
sovereign immunity; and (2) finding that the law enforcement proviso does not apply to
Plaintiff’s intentional tort claims. (Doc. 44 at 2-21). Defendant responds that the Chief
Magistrate Judge properly found that sovereign immunity is not waived under the FTCA
for any of Plaintiff’s claims, and contends Plaintiff did not demonstrate a genuine dispute
as to any material facts. (Doc. 48 at 2-12).
1. Discretionary Function Exception to the FTCA
Plaintiff’s first objection is that the Chief Magistrate Judge erroneously found that
Plaintiff’s negligence claim is barred by the discretionary function exception to the
FTCA’s waiver of sovereign immunity. (Doc. 44 at 4-14). Specifically, Plaintiff contends
the DEA policies regarding probable cause, §§ 6641.12, 6641.13, and 6641.15, are
nondiscretionary because they mandate that officers must establish that a crime has
been committed and that the subject committed the crime in order to establish probable
cause. Id. Because the agents here “obtained a criminal complaint against Plaintiff
based on a false identification and dishonest information propounded under oath,”
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Plaintiff contends the agents violated nondiscretionary DEA policies regarding
establishing probable cause. Id. at 6. In addition, Plaintiff contends the Chief Magistrate
Judge erroneously found that Plaintiff alleged a negligent investigation. Id. at 14-16.
Plaintiff states that he does not claim the agents’ investigation was negligent; rather,
Plaintiff contends that because he did not commit the crime for which Defendant
arrested him, there was no probable cause to arrest him in the first place. Id. at 15.
In its Response, Defendant argues that the DEA policies relied on by Plaintiff are
discretionary because they “merely provide guidance for agents making decisions about
probable cause and criminal complaints: precisely the sort of discretion covered by the
discretionary function exception.” (Doc. 48 at 8). Because the policies require agents to
use discretion in determining how to proceed in a criminal investigation, Defendant
contends the policies are inherently discretionary. Id. at 5-8. Defendant states: “Under
Plaintiff’s theory, any agency regulation that provides guidance to a government actor in
utilizing his discretion or making a multi-part determination based on the available facts
would prohibit the application of the discretionary function exception.” Id. at 8.
In his Reply, Plaintiff disputes Defendant’s contention that the agents
“mistakenly” identified him in the criminal complaint, and argues that he instead was
“falsely identified,” which “signifies intentionally untrue—false testimony, dishonestly or
crookedly.” (Doc. 49 at 4). Plaintiff maintains that the DEA policies are nondiscretionary
because “[n]owhere in the DEA policies does it appear that agents have the discretion
to arrest a person who has not committed a federal offense and for whom they do not
have probable cause but rather falsely, that is dishonestly, identified.” Id. at 5. In the
alternative, Plaintiff argues that even if the DEA policies are discretionary, the actions of
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the agents are not rooted in public policy, so they do not involve the type of decisionmaking the discretionary function was designed to protect. Id. at 6-9.
In the PFRD, the Chief Magistrate Judge found that the DEA policies regarding
establishing probable cause and conducting a warrantless arrest were discretionary.
(Doc. 43 at 8-20). Plaintiff contends this finding was in error because the policies set
forth two steps agents must follow to establish probable cause: (1) form a belief that a
crime has been committed; and (2) form a belief that the subject committed the crime.
(Doc. 44 at 5). A discretionary policy, however, is defined as one that “involves an
element of judgment or choice,” as opposed to policies that “specifically prescribe a
course of action for an employee to follow.” Berkovitz, 486 U.S. at 536. While these
policies provide that an agent must believe a crime was committed and that the subject
committed the crime, how an agent forms that belief is not specifically prescribed by
DEA policy. As explained in the PFRD, none of the policies relied on by Plaintiff set forth
specific steps that agents must follow in order to form the belief that probable cause
exists; instead, the policies involve elements of judgment or choice. (Doc. 44 at 14).
Nevertheless, Plaintiff argues the agents violated nondiscretionary DEA policies
regarding probable cause because the agents falsely identified Plaintiff as the subject of
the 2012 video. (Doc. 44 at 4-6). The undisputed facts here show that the agents relied
on the APD officer’s report that Plaintiff was the registered owner of the smoke shop,
that Plaintiff “appeared to be” the person in the 2012 video who sold the controlled
substance to the officer, and that Plaintiff resembles his brother, who was later
determined to be the person who sold the substance to the officer. (Doc. 23, ¶¶ 21, 24,
29), (Doc. 23-7). While the agents were wrong that Plaintiff was the person in the video,
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that does not render the agents’ actions nondiscretionary. See 28 U.S.C. § 2680(a)
(sovereign immunity is not waived for claims based on the exercise of a discretionary
function “whether or not the discretion involved is abused”); Garcia v. United States Air
Force, 533 F.3d 1170, 1176 (10th Cir. 2008) (question of negligence is irrelevant
because the discretionary function exception applies “whether or not the discretion
involved be abused”); and Aragon v. United States, 146 F.3d. 819, 822 (10th Cir. 1998)
(“The [discretionary function] exception applies even if the governmental employees
were negligent.”).
Plaintiff further contends that his claim is not based on a negligent investigation
because the agents were “intentionally untrue” in identifying him as the subject of the
2012 video. (Doc. 49 at 4). Plaintiff is correct that intentional conduct during a criminal
investigation can render a government employee’s actions nondiscretionary. However,
that conduct must involve egregious actions that are made in bad faith to violate a
federal law. See (Doc. 43 at 17) (citing Reynolds v. United States, 549 F.3d 1108, 1113
(7th Cir. 2008) (stating “a federal investigator’s decision to lie under oath is separable
from the discretionary decision to prosecute”), and Moore v. Valder, 65 F.3d 189, 197
(D.C. Cir.1995) (“Disclosing grand jury testimony to unauthorized third parties, however,
is not a discretionary activity nor is it inextricably tied to matters requiring the exercise of
discretion.”)). Even though Plaintiff states that the agents’ behavior was intentional,
Plaintiff provides no facts to support this statement, and Plaintiff’s Amended Complaint
contains no allegations that the agents deliberately misidentified Plaintiff as the person
in the 2012 video, that the agents knew that Plaintiff was misidentified, or that they
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arrested or imprisoned him knowing that he was not the subject of the video. (Doc. 23 at
¶¶ 21-77).
It is established law that claims based on a negligent investigation are barred by
the discretionary function exception. See Hobdy v. United States, 968 F.2d 20,1992 WL
149871 (10th Cir. 1992) (unpublished) (holding that decisions regarding how to conduct
a criminal investigation, including who to investigate and how to present evidence, are
protected under the discretionary function exception); Alfrey v. United States, 276 F.3d
557, 566 (9th Cir. 2002) (“[I]nvestigations by federal officers clearly involve the type of
policy judgment protected by the discretionary-function exception.”); Sloan v. United
States Dept. of Housing and Urban Dev., 236 F.3d 756, 760 (D.C. Cir. 2001) (“The
decision to initiate a prosecution has long been regarded as a classic discretionary
function.”); Horta v. Sullivan, 4 F.3d 2, 21 (1st Cir. 1993) (same); and Cortez v. EEOC,
585 F. Supp.2d 1273, 1286 (D. N.M. 2007) (“Generally, the discretionary function
exception covers law enforcement and investigatory activities.”).
Moreover, several courts have held that claims involving the incorrect
identification of suspects fall within the discretionary function exception. See, e.g.,
Valdez v. United States, 2009 WL 2365549 (S.D. N.Y. July 31, 2009) (unpublished)
(applying the discretionary function exception despite Plaintiff’s contention that the
agent failed to interview a certain witness, conduct a line-up, show the witness a photo
array, or otherwise further investigate a claim of mistaken identity); Kerns v. United
States, 2007 WL 552227, *21 (D. Ariz. Feb. 21, 2007) (unpublished), rev’d on other
grounds, 2009 WL 226207 (9th Cir. Jan. 28, 2009), (“The discretionary function
exception has been applied to shield review of the negligent investigation and arrest of
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a person later determined to be innocent of the charged offense.”); Rourke v. United
States, 744 F. Supp. 100, 103 (E.D. Pa. 1988) (“[C]laims based upon an erroneous
decision to prosecute a suspect later shown to be innocent of the crime for which he
was arrested are not actionable since the officers’ decision to arrest and prosecute is a
discretionary function of law enforcement officers.”). Plaintiff does not cite to any cases
that have held that the misidentification of a suspect, absent a showing of intentional
wrongdoing, constitutes a nondiscretionary action.
Based on the foregoing, the Court agrees with the Chief Magistrate Judge that,
viewed in the light most favorable to Plaintiff, Plaintiff’s allegations theorize that the DEA
agents acted negligently in identifying Plaintiff as his brother and finding probable cause
that Plaintiff was the subject of the 2012 video. See (Doc. 44 at 23). Therefore, the
Court finds no error in the Chief Magistrate Judge’s finding that Defendant’s actions
were discretionary, thereby satisfying the first Berkovitz prong.
In his Reply, Plaintiff argues that even if the DEA policies are discretionary, the
actions of the agents do not satisfy Berkovitz’ second prong because they are not
rooted in public policy. Id. at 6-10. He contends that “day-to-day law enforcement such
as drug investigations, arrests, surveillance and drug interdiction are not the kind of
conduct that is as a general proposition fairly susceptible to public policy analysis.” Id. at
9. Therefore, Plaintiff argues the agents’ false identification and subsequent arrest of
Plaintiff are not activities the discretionary function was designed to protect and do not
meet the second Berkovitz prong. Id. at 10.
An argument raised in a reply brief is generally deemed waived. See Wheeler v.
Comm’r, 521 F.3d 1289, 1291 (10th Cir. 2008). Nevertheless, since Plaintiff also raised
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this argument in his response to Defendant’s Motion to Dismiss, (Doc. 28 at 23-26), and
it was addressed in the PFRD, (Doc. 43 at 18-20), the Court will consider it.
The United States Supreme Court has held that, “[w]hen established
governmental policy, as expressed or implied by statute, regulation, or agency
guidelines, allows a Government agent to use discretion, it must be presumed that the
agent’s acts are grounded in policy when exercising that discretion.” United States v.
Gaubert, 499 U.S. 315, 324 (1991) (“If a regulation allows the employee discretion, the
very existence of the regulation creates a strong presumption that a discretionary act
authorized by the regulation involves consideration of the same policies which led to the
promulgation of the regulation.”). Moreover, at least one district court has found that
officers’ actions in deciding how and when to seek a search warrant are grounded in
policy considerations. See Doherty v. United States, 905 F. Supp. 54, 56 (D. Mass.
1995) (finding the federal agents’ conduct was based on the public policies of
preventing crime and protecting public safety).
In the PFRD, the Chief Magistrate Judge found that the agents’ actions in this
case were based on consideration of public policies such as the use of DEA agency
funds, relationships with local law enforcement entities, and consideration of community
and officer safety issues. (Doc. 43 at 19-20) (relying on the affidavit of DEA Assistant
Administrator and Chief of Operations, Anthony D. Williams, Doc. 26-1, ¶¶ 15-19). While
Plaintiff contends the agents’ actions are not based on public policy, he does not cite to
any case law that would support such a finding. Instead, pursuant to Gaubert, because
the agents acted in accordance with policies that allowed them discretion, they are
entitled to a presumption that their actions are grounded in the public policy. Therefore,
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the Court finds that the Chief Magistrate Judge did not err in finding that the agents’
actions were based on considerations of public policy, thus satisfying the second
Berkovitz prong.
2. Law Enforcement Proviso
Plaintiff also objects to the Chief Magistrate Judge’s finding that his intentional
tort claims are barred by the discretionary function exception because they amount to
claims of negligence. (Doc. 44 at 16-21). Plaintiff urges the Court to follow the Fifth and
Eleventh Circuits, which have held that the discretionary function exception is not a bar
for intentional tort claims that fall under the law enforcement proviso. Id. at 17-18.
Plaintiff again argues he alleged the agents acted intentionally, not negligently, by
stating in his Amended Complaint that they “established Probable Cause falsely to
search Plaintiff’s residence, based on Defendant’s false identification of Plaintiff as the
individual who had distributed a controlled substance.” Id. at 18 (quoting Doc. 23, ¶ 36)
(emphasis in original). Plaintiff states the dictionary definition for “falsely” is “intentionally
untrue,” and its synonyms are “dishonestly” and “crookedly.” Id. at 18-19.
In its Response, Defendant disputes that Plaintiff has sufficiently alleged the
agents acted intentionally. (Doc. 48 at 9-10). Even though the agents wrongly identified
Plaintiff, instead of his brother, as the subject of the 2012 video, Defendant states that
does not equate to intentional conduct. Id. at 10. Defendant contends that Plaintiff’s
allegations that the agents lied or were dishonest are “outrageous and unsupported new
allegations” that were not raised in Plaintiff’s notice of claim or Complaint. Id. Defendant
also argues Plaintiff’s reliance on the dictionary definition of “falsely” omits alternative
definitions of the word that do not imply intentional conduct, such as “based on mistaken
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ideas,” “wrong,” “erroneous,” and “What is false can be so by intent, by accident, or by
mistake.” Id. at 11. Therefore, Defendant argues the Chief Magistrate Judge was correct
in finding that Plaintiff’s intentional tort claims amount to claims of negligence, and are
thus barred by the discretionary function exception. Id. at 12.
In his Reply, Plaintiff maintains that his intentional tort claims are not barred by
the discretionary function exception to the FTCA’s waiver of sovereign immunity. (Doc.
49 at 10-12). Plaintiff states that he has “demonstrated that agents falsely identified him
which inferentially and through common sense indicates a complete absence of
Probable Cause that Plaintiff had committed a felony offense to justify his warrantless
arrest.” Id. at 11. Plaintiff further contends that because the 2012 video was of his
brother, not him, this “clearly demonstrates the agents misrepresented crucial facts
under oath as they falsely claimed Plaintiff had committed a federal offense.” Moreover,
Plaintiff states that he “has not claimed the agents’ false identification was just a simple
mistake.” Id.
In the PFRD, the Chief Magistrate Judge explained that under the “intentional tort
exception” of the FTCA, sovereign immunity is not waived for: “Any claim arising out of
assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or interference with contract rights.”
(Doc. 44 at 21) (quoting 28 U.S.C. § 2680(h)). However, sovereign immunity is waived
for six of those torts (assault, battery, false imprisonment, false arrest, abuse of
process, and malicious prosecution) when they arise from the acts or omissions of
federal law enforcement officers. Id. This exception to the intentional tort exception is
known as the “law enforcement proviso.” Garling, 849 F.3d at 1296.
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The Chief Magistrate Judge further explained that there is a split among the
circuits regarding the interplay between the law enforcement proviso and the
discretionary function exception. (Doc. 44 at 21-22). Several circuits have found that a
plaintiff bringing an intentional tort claim under the law enforcement proviso must first
clear the discretionary function hurdle. Id. (citing cases from the Fourth, Ninth, Third,
and Second Circuits, and the District of Kansas). However, the Fifth and Eleventh
Circuits have instead held that the discretionary function exception does not bar
plaintiffs from asserting intentional torts that fall within the law enforcement proviso. Id.
at 22 (citing Nguyen v. United States, 556 F.3d 1244, 1256-57 (11th Cir. 2009) (“[I]f a
claim is one of those listed in the proviso to subsection (h), there is no need to
determine if the acts giving rise to it involve a discretionary function; sovereign immunity
is waived in any event.”), and Sutton v. United States, 819 F.2d 1289, 1297 (5th Cir.
1987) (same)).
Noting that the Tenth Circuit has not explicitly ruled on this issue, the Chief
Magistrate Judge considered the Tenth Circuit’s reasoning in Garling v. United States.
Id. at 22-23. There, the plaintiffs brought FTCA claims against the Environmental
Protection Agency for damages arising from a raid and investigation of the plaintiffs’
laboratory. Garling, 849 F.3d at 1292, 1298. In considering whether the plaintiffs’ false
arrest, false imprisonment, and abuse of process claims were barred by the
discretionary function exception, or if they fell within the law enforcement proviso, the
Tenth Circuit noted the disagreement among the circuits but declined to reach the issue
because the plaintiffs did not adequately plead their intentional tort claims. The Court
stated that “a plaintiff may not recast a negligence tort as an intentional tort to take
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advantage of the law enforcement exception to § 2680(h),” and that the Court looks to
the substance of the claims “and not how [the plaintiffs] labeled them in their complaint.”
Id. at 1298. Finding the plaintiffs failed to allege intentional tort facts, the Court reasoned
that the plaintiffs’ claims instead “stem from the EPA’s raid and investigation, and the
facts alleged at most amount to negligence or recklessness.” Id. Therefore, the Tenth
Circuit held that the discretionary function exception precluded the plaintiffs’ intentional
tort claims and the district court lacked jurisdiction over the claims. Id. (“The Garlings
attempt to ascribe the labels of ‘false arrest,’ ‘false imprisonment,’ and ‘abuse of
process’ to these allegations to fit the law enforcement proviso in § 2680(h). But
considering, as we must, the substance of the allegations and not the labels, we
conclude the district court lacked jurisdiction over these claims.”).
Following the Tenth Circuit’s reasoning in Garling, the Chief Magistrate Judge
looked at the substance of Plaintiff’s intentional tort claims for false arrest and false
imprisonment. The Chief Magistrate Judge noted that Plaintiff’s Amended Complaint
does not contain allegations that the agents deliberately misidentified Plaintiff as the
person in the 2012 video, that the agents knew that Plaintiff was misidentified, or that
they arrested or imprisoned him knowing that he was not the subject of the video. (Doc.
44 at 23-24). Therefore, the Chief Magistrate Judge found that Plaintiff’s intentional tort
claims amount to claims of negligence, so the law enforcement proviso does not apply
and the claims are barred by the discretionary function exception to the FTCA’s waiver
of sovereign immunity. Id. at 24.
Plaintiff’s objection to this finding is based on his contention that, because he
was not the person in the 2012 video, the agents’ identification of him as that person
17
must have been intentional. (Doc. 44 at 20) (further stating that “an allegation that an
agent’s conduct was false means it was malicious, intentional and dishonest.”). Plaintiff
provides no support for this contention, and he fails to acknowledge that the undisputed
facts show that: Plaintiff owned the smoke shop where the 2012 video was taken; the
subject of the video was Plaintiff’s brother, who resembles Plaintiff; and the APD officer
who purchased the controlled substance from Plaintiff’s brother in the 2012 video
identified Plaintiff as the subject of the video. See (Doc. 23, ¶¶ 21, 24, 29), (Doc. 23-7).
These facts, as in Garling, allege negligence or recklessness at most. Even though
Plaintiff contends he does not allege the agents made a mistake in identifying him, the
Tenth Circuit in Garling instructs the Court to look at the substance of the claims and not
how they are labeled. 849 F.3d at 1298.
As explained in the PFRD, the Court must resolve the issue of whether
Defendant has waived its sovereign immunity under the FTCA under Fed. R. Civ. P. 56
because it involves both jurisdictional and merits issues. (Doc. 44 at 7) (citing Bell v.
United States, 127 F.3d 1226, 1228 (10th Cir. 1997)). As such, if the record contains no
evidence of a genuine issue of material fact, the non-moving party may not rest on mere
allegations or denials in the pleadings, but must set forth specific facts showing a
genuine issue for trial. Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 247-48 (1986)
(explaining that unsupported and conclusory allegations are insufficient to defeat a
proper motion for summary judgment). Therefore, absent any evidence of intentional
wrongdoing on the part of the agents, Plaintiff’s reliance on his misidentification alone is
not sufficient to overcome Defendant’s Motion to Dismiss.
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The Court understands that Plaintiff’s misidentification as the person in the video
means that the agents’ statements in their affidavits for the search warrant and criminal
complaint were incorrect. However, the fact that Plaintiff was not the person in the 2012
video does not necessarily mean the agents knew that at the time they sought the
search warrant and filed the criminal complaint, and Plaintiff presents no facts or
evidence showing otherwise. See Florida v. Harris, 568 U.S. 237, 244 (2013)
(explaining that probable cause is more than bare suspicion but is less than beyond a
reasonable doubt or a preponderance of the evidence); (Doc. 48 at 10) (“Probable
cause does not require certainty: it is possible to establish probable cause and still be
mistaken.”). The Court, therefore, agrees that Plaintiff’s intentional tort claims amount to
claims for negligence. Because the Court finds that Plaintiff has not adequately plead
his intentional tort claims, the Court does not reach the issue of whether to follow the
Fifth and Eleventh Circuits, or the Fourth, Ninth, Third, and Second Circuits, regarding
whether a plaintiff bringing an intentional tort claim under the law enforcement proviso
must first clear the discretionary function hurdle.
III.
Conclusion
For the foregoing reasons, the Court finds that the Chief Magistrate Judge
conducted the proper analysis and correctly concluded that Plaintiff’s claims should be
dismissed without prejudice. Plaintiff’s objections are overruled.
For the reasons stated above, IT IS HEREBY ORDERED that:
1) Plaintiff’s Unopposed Nunc Pro Tunc Motion to File Reply to Government’s
Response to Plaintiff’s Objections to Magistrate Judge’s Proposed Findings
and Recommended Disposition, (Doc. 51), is GRANTED;
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2) Defendant’s Rule 12(B)(1) and Rule 56 Motion to Dismiss and Memorandum
in Support, (Doc. 26), is GRANTED;
3) The Chief Magistrate Judge’s Proposed Findings and Recommended
Disposition, (Doc. 43), is ADOPTED; and
4) This case is DISMISSED WITHOUT PREJUDICE.
HONORABLE MARTHA VAZQUEZ
UNITED STATES DISTRICT JUDGE
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