Garcia Feliciano v. United States of America

Filing 36

OPINION AND ORDER granting in part and denying in part 26 Motion for Summary Judgment. Discovery, as required by the attached opinion, is due by 5/1/2014. Because trial is set to begin on 5/5/2014, the date for discovery cannot be extended. Signed by US Magistrate Judge Silvia Carreno-Coll on 4/23/2014. (NBB)

IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO

JOSÉ GARCÍA-FELICIANO,
Plaintiff,
v.

CIV. NO.: 12-1959(SCC)

UNITED STATES OF AMERICA,
ET AL.,
Defendants.

MEMORANDUM AND ORDER
The facts in this Federal Tort Claims Act case are straightforward. On March 24, 2011, Plaintiff José García-Feliciano was
brought to the Clemente Ruíz Nazario Federal Courthouse in
San Juan, Puerto Rico, to be sentenced in a criminal case. While
at the courthouse, he was in the custody of the United States
Marshals Service (“USMS”). After his sentencing, García, along
with ten other detainees, was led by one or more deputy

GARCIA-FELICIANO v. UNITED STATES

Page 2

Marshals1 to the loading dock, from which they would be
transported back to the Metropolitan Detention Center—Guaynabo. While moving through the courthouse, García
and the other detainees were, in compliance with standard
USMS operating procedure, in “full restraints” consisting of
“handcuffs, waist chain and leg irons.” Docket No. 28, ¶ 8. The
detainees traveled to the loading dock on “the route [the
USMS] normally used to transport detainees through courthouse[] . . . .” Id. ¶ 10. Specifically, they were taken down an
emergency staircase.
We have viewed a video of the detainees walking down the
stairs. In that video, a deputy Marshal can be seen leading a
single-file line of shackled detainees down the stairwell. As he
nears the bottom of a flight, García, third in line, loses his
footing and tumbles to his left, bounces off the wall, and then
falls forward into another wall and onto the stairs’ landing.

1.

In its statement of uncontested material facts, the Government says that
“several” deputy Marshals were leading the detainees. See Docket No.
28, ¶ 9. The field report on which the Government relies refers to the
report’s author “along with other guards on duty,” but it does not give
a precise number. See Docket No. 28-2. And in the video of the incident,
only one deputy Marshal can be seen.

GARCIA-FELICIANO v. UNITED STATES

Page 3

García indisputably suffered injuries as a result of this fall.2
The Government has filed a motion for summary judgment
that pursues several avenues of relief, chief among them the
discretionary function exception to the FTCA. That exception
provides that the FTCA’s waiver of sovereign immunity does
not extend to actions “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). Where this exception applies, the
federal district courts lack subject matter jurisdiction over the
lawsuit. See Wood v. United States, 290 F.3d 29, 35 (1st Cir. 2007).
A “well-established framework governs” application of the
discretionary function exception. Carroll v. United States, 661
F.3d 87, 99 (1st Cir. 2011). A court is charged with first

2.

The extent of these injuries is in material dispute, but García claims to
have experienced substantial pain. This is enough to defeat the
Government’s arguments that García’s physical injuries were so
insubstantial as to deprive the court of jurisdiction under the Prison
Litigation Reform Act. See 28 U.S.C. § 1346(b)(2) (forbidding prisoners
from bringing suits “for mental or emotional injury suffered while in
custody without a prior showing of physical injury”); see also Siglar v.
Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (“[T]he injury must be more
than de minimis, but need not be significant.”).

GARCIA-FELICIANO v. UNITED STATES

Page 4

“identify[ing] the conduct that is alleged to have caused the
harm.” Fothergill v. United States, 566 F.3d 248, 252 (1st Cir.
2009). Second, the court “determines whether that conduct can
fairly be described as discretionary.” Id. And third, the court
asks “whether the exercise or non-exercise of the granted
discretion is actually or potentially influenced by policy
considerations.” Id.
We note that while the discretionary function framework
may be “well-established,” the practical application of that
framework is far from clear cut. See Shansky v. United States, 164
F.3d 688, 693 (1st Cir. 1999) (recognizing that the case-by-case
application of the exception “has led to some disarray”);
Johnson v. Sawyer, 980 F.2d 1490, 1502 (5th Cir. 1992) (“[A]s
virtually every act of a government employee involves at least
a modicum of choice, we must exercise restraint when applying the discretionary function exception.”), vacated on other
grounds, 47 F.3d 716 (5th Cir. 1995) (en banc); see also 14 WRIGHT
& MILLER, FEDERAL PRACTICE & PROCEDURE § 3658.1 (4th ed.)
(“Unfortunately, it is unclear what exactly falls within the
scope of [the discretionary function exception], despite an
immense amount of precedent that has developed on the
subject.”). Below, we explain why some of these difficulties

GARCIA-FELICIANO v. UNITED STATES

Page 5

require denial of the Government’s motion.
I. The Discretionary Function Exception
A. Multiple Causation
According to García (and, indeed, the Government’s
statement of uncontested facts, see Docket No. 28, ¶ 7), García
fell because the chain connecting his ankles was too short, and
as a result he tripped on his way down the stairs. Watching the
video of the incident provided by the Government, this is a
plausible account of the fall: in the video, you can see García’s
left foot suddenly jerk backwards before he falls against the
wall. The caselaw directs us to “cut through the plaintiff’s
characterization of the Government’s conduct[] and identify
the ‘nature and quality of the harm-producing conduct.’” RiosColon v. United States, 928 F. Supp. 2d 376, 383 (quoting
Fothergill, 566 F.3d at 252–53). But where that instruction
should take us here is not obvious, because there seem to be
two discrete actions on the Government’s part that caused
García’s injuries. First, there is the fact that he was walking
unaided down a flight of stairs, his movements directed by the
Government. For the moment, we will accept the Government’s assertion that this was a discretionary function. But
second, García was wearing full restraints, including leg irons,

GARCIA-FELICIANO v. UNITED STATES

Page 6

something that the Government admits was non-discretionary.3 Under a typical causation analysis, we would say that
both the direction to walk down the stairs and the restraints
were the but-for causes of García’s fall, and both were probably
also proximate causes. But the caselaw does little to illuminate
how a court should proceed when two separate government
actions concurrently cause a person’s injury—especially when
one but not the other is discretionary.4
The Government relies principally on MacCaffray v. United

3.

Specifically, the Government admits that there was a policy mandating
that García be restrained, but it nonetheless maintains that the
discretionary function exception applies to the decision to restrain
García. As we explain in the next section, we disagree.

4.

On this point, we have found two treatises holding that the
“discretionary-function exception does not apply if two governmental
acts, one discretionary and the other not, are concurrent causes of an
injury.” 57 GEORGE BLUM, ET AL., AMERICAN JURISPRUDENCE § 56 (2d ed.);
see also 6 ANTHONY Z. ROISMAN, LITIGATING TORT CASES § 66:47. But each
of these treatises—which seem concerned with state law—cite a single
case, from a Tennessee intermediate appellate court and applying a
Tennessee analogue to the FTCA, for the proposition. See Anderson v.
City of Chattanooga, 978 S.W.2d 105, 109 (Tenn. App. 1998); see also
Bowers by Bowers v. City of Chattanooga, 826 S.W.2d 427, 433–34 (Tenn.
1992) (“We hold that where two government acts are concurrent causes
of an injury, one of which arises from a discretionary function, the other
of which does not, the exception to the removal of immunity contained
in [the Tennessee analogue to the FTCA] does not apply.”).

GARCIA-FELICIANO v. UNITED STATES

Page 7

States, Civ. No. 97-403, 1998 WL 560047 (D. Vt. Aug. 27, 1998).
In that case, a detainee brought suit against the United States
for injuries he suffered as a result of not being seatbelted into
the Marshal-driven car in which he was being transported
when that car got in an accident. See id. at *1–2. The plaintiff’s
FTCA claim was dismissed because the Court held that the
deputy Marshals had discretion regarding whether or not to
seatbelt the plaintiff, and the discretion that they had exercised
in deciding not to seatbelt the plaintiff was policy-driven. Id. at
*3 (noting that the decision was based on “safety concerns
involving the use by prisoners of the safety belts to break
handcuffs and escape, or any attempts to injure deputies who
were fastening or releasing their seatbelts”); see also Vinson v.
United States, Civ. No. 10-79, 2011 WL 3903199, at *4 (D.S.C.
Sept. 2, 2011), aff’d, 453 F. App’x 221 (4th Cir. 2011). The
Government believes MacCaffray to be directly on point, but its
position ignores the crucial distinction between the two cases:
in MacCaffray, the use of seatbelts was found to be discretionary, but here, the use of restraints was not.
Furthermore, a later case relying on MacCaffray sheds light
on the course we should take here, where two causes are
alleged to have been responsible for García’s injuries. In

GARCIA-FELICIANO v. UNITED STATES

Page 8

Vinzant v. United States, the plaintiff, as in MacCaffray, complained of the Marshals’ decision not to seatbelt him during
transportation, but he also complained of their allegedly
reckless driving. See Vinzant, Civ. No. 06-10561, 2010 WL
1856277, at *1 (E.D. La. May 7, 2010). With regard to the lack of
seatbelts, the court followed MacCaffray, finding that the
decision on whether to buckle-in detainees was “within the
discretion of each United States Marshal.” Id. However, the
court concluded that while this fact barred the plaintiff’s FTCA
claim with regard to the seatbelts, it had no effect on his claims
regarding the deputies’ allegedly reckless driving. Id. at *6
(“The other alleged bases of liability under the FTCA suggested by [the plaintiff] in his complaint remain viable.”), aff’d,
458 F. App’x 329 (5th Cir. 2012) (per curiam); see also Dobrowski
v. United States, Civ. No. 11-2835, 2013 WL 5954901, at *3–4
(E.D. Cal. Nov. 7, 2013) (following Vinzant and dismissing
detainee’s FTCA claim for failure to seatbelt, but maintaining
claims for negligent driving and failure to seek medical care).
Vinzant and Dobrowski, then, actually suggest that complete
dismissal would be unwarranted here, but they do not answer
the question completely. In those cases, the various alleged
causes of the plaintiffs’ injuries were more separable than the

GARCIA-FELICIANO v. UNITED STATES

Page 9

alleged causes are here. That is, the car crashes in Vinzant and
Dobrowski may well have been necessary and sufficient causes
for at least some portion of the plaintiffs’ injuries in those cases,
and it is not clear how either of those courts would have
treated injuries “caused” by the crash but aggravated by the
lack of seatbelts.5 In our case, by contrast, neither the stairs nor
the restraints are likely to have been a sufficient cause of
García’s accident; instead, the two causes seem to have worked
in concert, causing García’s injuries concurrently. This presents
complicated questions regarding how to proceed: if we follow
Vinzant and only permit the restraint claim, substantial
evidence regarding the route will be necessary at trial. Nonetheless, the fact of restraint seems to be at the heart of García’s
claims. After all, going down stairs is a trivial task in most
cases; that it was dangerous in this case was because of the
non-discretionary act of restraining García. For this reason, we
conclude that the discretionary function exception should not
apply where two causes—one discretionary and one not—are

5.

In Vinzant, at least, the court ultimately concluded that the driving had
not been negligent, obviating such a complication. See Vinzant v. United
States, 458 F. App’x 329, 331 (5th Cir. 2012) (per curiam) (noting that the
trial court found in favor of the Government after a bench trial).

GARCIA-FELICIANO v. UNITED STATES

Page 10

said to cause the plaintiff’s injury, especially where the nondiscretionary cause is primarily responsible for the plaintiff’s
injuries.
B. Policies and Tortfeasors
It is necessary next to give some attention to two related
problems in applying the discretionary function exception:
what is a policy?, and whose conduct are we concerned about?
The Government argues that the mandatory policy requiring
detainees to be restrained during transport was itself an action
of discretion implicating the exception and removing this case
from our subject matter jurisdiction. To be sure, the policy was
enacted in furtherance of the sort of goals that the exception is
intended to protect. On the other hand, the policy by its terms
bound the individual deputies with whom García interacted;
those deputies themselves were without discretion, and
therefore would seem to fall outside the exception’s protection.
So the difficulty is one of line drawing: whose conduct—and
therefore which policies—are we talking about when we apply
the discretionary function exception?
The answer to this question is complicated by a procedural
formality required by the FTCA. In a normal lawsuit, a plaintiff
would sue the individuals personally alleged to have injured

GARCIA-FELICIANO v. UNITED STATES

Page 11

the plaintiff, or, for example, their supervisors or employers,
and the theories of liability would vary accordingly. Here,
though, the FTCA prohibits the plaintiff from suing individuals, supervisors, or even governmental agencies; instead, the
plaintiff sues the United States itself.6 Nonetheless, the precedent directs us to “cut through the plaintiff’s characterization
of the Government’s conduct[] and identify the ‘nature and
quality of the harm-producing conduct.’” Rios-Colon, 928 F.
Supp. 2d at 383 (quoting Fothergill, 566 F.3d at 252–53). This
suggests that we are to look, quite reasonably, at the conduct
of the individuals said to have personally injured the plaintiff.
This is confirmed by the statute’s language, which refers to the
“negligent or wrongful act or omission of any employee of the
Government,” 28 U.S.C. § 1346(b)(1), and by the cases holding
that the Government is not liable for the conduct of government contractors, a doctrine that “eliminat[es] vicarious
liability as a theory of recovery against the federal govern-

6.

For this reason, we GRANT the motion for summary judgment as to the
U.S. Marshal Service, which García now agrees is not a proper party to
this lawsuit.

GARCIA-FELICIANO v. UNITED STATES

Page 12

ment.” Carroll v. United States, 661 F.3d 87, 92 (1st Cir. 2011).7
So, we must consider the exception as applied to the acts of a
particular government employee. See United States v. Empresa
de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 813
(1984) (“[T]he basic inquiry concerning the application of the
discretionary function exception is whether the challenged acts
of a Government employee—whatever his or her rank—are of
the nature and quality that Congress intended to shield from
tort liability.”).
Applying these principles to the present case, we conclude
that we must look at the conduct of the individual deputies,
not the officials who promulgated the restraint policy. And
those deputies had no discretion regarding whether to restrain
García, so their actions fall outside of the exception. We note,
however, that there is an implicit tension between this holding
and some of the cases we have cited. In Vinzant, for example,

7.

What is referred to as the independent contractor exception is
mandated by statute, 28 U.S.C. § 2671 (defining “federal agency” as not
including govermental contractors), but it and the case law holding that
there may be liability where the Government closely supervises the
contractor, see, e.g., United States v. Orleans, 425 U.S. 807 (1976), together
suggest that we must consider the conduct of the individual
Government employees who are said to have injured the plaintiff.

GARCIA-FELICIANO v. UNITED STATES

Page 13

it seems that the United States Marshal for the Eastern District
of Louisiana had made a specific policy choice not to use
seatbelts during prisoner transport. See Vinzant, 2010 WL
1857277, at *4 (“In the Eastern District of Louisiana, obviously,
the choice ha[d] been made not to use safety belts during
inmate transport.”). But the Marshal, who unquestionably had
discretion to set such a policy, was not the person who failed
to buckle-in the plaintiff. His deputies were, and they, apparently, did not have any discretion regarding whether to secure
the plaintiff. And as it was their conduct, not the Marshal’s,
that was alleged to have injured the plaintiff, it is not clear why
the court held that the discretionary function exception
applied. We find this particularly odd given that many other
cases have held that injuries caused by failures of, for example,
prison guards to follow post orders or prison-specific policies
were outside of the exception. See, e.g., Garza v. United States,
161 F. App’x 341 (5th Cir. 2005) (holding that exception did not
apply where individual guard did not follow a “post order”);
Irvin v. Owens, Civ. No. 10-1336, 2012 WL 1534787, at *6 (D.S.C.
Apr. 30, 2012) (finding that exception did not apply where
prison guards failed to follow policy “requiring a staff member
to be on the sidelines during intermural” prison league

GARCIA-FELICIANO v. UNITED STATES

Page 14

basketball games); Brembry v. United States, Civ. No. 10-388,
2011 WL 121741 (W.D. Va. Jan. 13, 2011) (following Garza);
D’Antuono v. United States, Civ. No. 07-123, 2010 WL 2465493
(N.D. Tex. June 15, 2010) (following Garza). These policies and
orders—like the policy in Vinzant—were undeniably driven by
the sort of concerns motivating the discretionary function
exception, yet that fact did not protect the United States from
liability. To our mind, these cases cannot be reconciled,8 and

8.

A possible explanation is that the case law is primarily concerned with
violations of governmental policies that result in a plaintiff’s injuries, see,
e.g., Fothergill, 566 F.3d at 254 (holding that dismissal was proper where
no “mandatory law, rule, regulation, or policy” required the government
to take the steps the plaintiff thought necessary), whereas we are here
concerned with the possibility that the deputy Marshall injured García
by following a mandatory policy. But focusing solely on the question of
discretion—and not whether a policy was or was not
followed—answers the question of the exception’s applicability.
Certain good faith actions by government employees in following
statutes and regulations would still be outside of the FTCA’s waiver of
sovereign immunity, due to the Act’s “due care” exception. 28 U.S.C.
§ 2680(a). That exception would not apply here, however, because a
policy—not a statute or regulation—proscribed the deputy’s conduct.
See, e.g., Welch v. United States, 409 F.3d 646, 652 (4th Cir. 2005)
(requiring that a statute or regulation “specifically proscribe a course
of action” for the due care exception to apply); see also 28 U.S.C. § 2680
(using the phrase “statute or regulation” to delimit the due care
exception, while using the broader phrase “discretionary function or
duty” to delimit the discretionary function exception).

GARCIA-FELICIANO v. UNITED STATES

Page 15

we will follow Garza because its implicit reasoning seems to
better understand the scope of the exception, which focuses on
whether the individual tortfeasors—not their supervisors—were acting with discretion. See United States v. Gaubert,
499 U.S. 315, 324–25 (1991) (holding that a governmental
agency’s “internal guidelines” may define the scope of an
employee’s discretion in an FTCA claim).
This analysis may apply as well to the route by which
García was taken through the building, which we assumed
above was discretionarily chosen. The Government itself says
that this was the USMS’s “normal[]” route within the building.” Docket No. 28, ¶ 10. At this juncture, we don’t know
what the Government means by “normal,” but it may well
have been a route mandated by those in charge of the district
office. If so, the choice by the deputy on duty to use it was nondiscretionary.9 See Ignatiev v. United States, 238 F.3d 464, 466–67

9.

The extent to which the Government provided discovery on this
question is unclear. Nonetheless, the Court finds the matter important
to the ultimate resolution of this case. Accordingly, the Government
shall, by May 1, 2014, file with the Court any and all rules, orders, or
memoranda, of any level of formality (including, e.g., emails) and from
any entity (e.g., USMS, GSA, or the District Court), concerning the route
or procedure for moving prisoners through the courthouse during the
period of time referenced in the complaint. No extensions of time will

GARCIA-FELICIANO v. UNITED STATES

Page 16

(D.C. Cir. 2001) (overturning district court’s dismissal of the
plaintiff’s FTCA claim, and permitting further discovery,
where it was likely that the agency in question had internal
policies governing the relevant governmental employees’
conduct).
Finally, whatever discretion the deputies might have had in
leading García through the courthouse, it might not have been
the sort of discretion that destroys this court’s jurisdiction.
McKinney v. United States is on point. In that case, much like in
ours, a prisoner, restrained and in custody, fell down a flight
of stairs. See McKinney, 950 F. Supp. 2d 923, 925 (N.D. Tex.
2013). The court rejected the Government’s discretionary
exception defense because the Government was undoubtedly
responsible for the plaintiff’s safety, and even if the specific
steps it took in exercising that duty were not proscribed, it did
not have “unchecked discretion to blatantly disregard the
mandatory obligation” to provide for the plaintiff’s safekeeping. Id. at 928. The prisoner in McKinney, who, notably, was
elderly and infirm, was at great risk while walking down the
stairs unaided and in restraints; the court held that the

be allowed.

GARCIA-FELICIANO v. UNITED STATES

Page 17

Government, which knew of this risk, could not evade responsibility by claiming that it was exercising discretion.
Id. (concluding that “the decision made by the [Government]
officials [was] not ‘of the kind that the discretionary function
exception was designed to shield’” (quoting Gaubert, 499 U.S.
at 322–23)). Though García is neither elderly nor infirm, there
is nonetheless an obvious and substantial risk in sending
shackled prisoners unaided down staircases, and a decision to
use such a route does not obviously implicate the type of
judgment that the exception is intended to protect.
C. Summing Up
For the reasons stated above, we conclude that, at least on
the filings now before us, the discretionary function exception
does not apply, and dismissal would therefore be improper.
That said, “the parties are forewarned that if the Government
establishes—be it belatedly, or even inadvertently—that any
exception to the FTCA properly applies, dismissal will lie
without regard to the case’s posture, its merits, or the public
and private time and expense that will have been wasted.”
Rios-Colon, 928 F. Supp. 2d at 386 (citing Bolduc v. United States,
402 F.3d 50, 54–55 (1st Cir. 2005)). Accordingly, the parties “are
strongly encouraged to hedge against th[is] uncertainty by

GARCIA-FELICIANO v. UNITED STATES

Page 18

reaching a compromise of their own accord.” Id.
II. Other Matters
The Government also argues, as a fallback, that García’s
suit is barred because there is no private analogue to the
conduct of which he complains. As the Government correctly
notes, the FTCA only makes the Government liable for conduct
for which a private person would also be liable under state
law. United States v. Olson, 456 U.S. 43, 45–46 (2005). As such,
the Government is not liable where state law would only
impose liability on a state or municipality, but not on a private
individual. Id. That said, the question is not whether the
conduct involved is “uniquely governmental”; for example,
“[p]rivate individuals, who do not operate lighthouses,
nonetheless may create a relationship with third parties that is
similar to the relationship between a lighthouse operator and
a ship dependent on the lighthouse’s beacon.” Id. at 47 (citing
Indian Towing Co. v. United States, 350 U.S. 61, 64–65, 69 (1955)).
Here, the Government suggests that the United States cannot
be liable because “there is no private analogue” to “the law
enforcement function of transporting prisoners.” Docket No.
27, at 5. But this misses Olson’s point: while private individuals
do not transport prisoners, they regularly transport other

GARCIA-FELICIANO v. UNITED STATES

Page 19

individuals with whose care they are charged (some of whom
might have their movement restrained or limited in various
ways), such as children, medical patients, the elderly, and the
physically impaired. It is simple to draw an analogy between
such relationships and the relationship of a deputy Marshal
and the detainee he transports.
The Government also argues that “the video clearly shows
that the fall was due to [García’s] own negligence, since [he]
lost his footing and tripped.” Docket No. 27, at 6. Though the
video could support the conclusion that the fall was nothing
but a normal trip, having nothing to do with any act or
omission on the Government’s part, it does not compel such
conclusion. As we’ve said, you can see García’s leg pull
backwards, which may indicate it was yanked by the chain. In
any case, this is a matter inappropriate for resolution before
hearing the parties’ testimony, and so we must reject the
Government’s argument on this point. Finally, the Government
makes an argument against a finding of negligence that is
premised entirely on the applicability of the discretionary
function exception. Because we reject the exception’s applicability, however, we must also reject this negligence argument.

GARCIA-FELICIANO v. UNITED STATES

III.

Page 20

Conclusion

The motion for summary judgment is GRANTED IN PART
and DENIED IN PART. Specifically, it is GRANTED as to the
U.S. Marshal Service, the claims against which are accordingly
DISMISSED WITH PREJUDICE, and it is DENIED in all other
respects.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 23rd day of April, 2014.
S/ SILVIA CARREÑO-COLL
UNITED STATES MAGISTRATE JUDGE