Estrada v. Cases et al

Filing 33

OPINION and ORDER granting 24 Motion to Dismiss. Order to Show Cause why the claims against the unnamed defendants should not be dismissed due by 4/29/2021. Signed by Judge Silvia L. Carreno-Coll on 3/30/2021. (MCV) Modified on 3/31/2021 to correct document type (ecc).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ELVIN TORRES-ESTRADA,
Plaintiff,
v.
CARLOS CASES ET AL.,

CIV. NO.: 19-2013 (SCC)

Defendants.

OPINION AND ORDER
Plaintiff Elvin Torres-Estrada filed this lawsuit against
the United States and several federal law enforcement
officers, bringing claims under the Federal Tort Claims Act
(“FTCA”) and Bivens. 1 Mr. Torres alleges that these officers
violated his First, Fourth, Fifth, Sixth, and Eighth Amendment
rights and committed negligence, intentional infliction of
emotional distress, assault, battery, and false imprisonment
by attempting to coerce witnesses to falsely testify against
him, trying to get him to falsely implicate himself, using
jailhouse informants to get incriminating statements from
him, placing him in solitary confinement, and subjecting him
to a body search.
This lawsuit was initially filed in the U.S. District Court
for the Southern District of California. There, the United
1. The U.S. Supreme Court held in Bivens v. Six Unknown Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), that there is an implied
private right of action against federal officials to recover damages for the
deprivation of constitutional rights. See id. at 389.

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States moved to dismiss Mr. Torres’s complaint for lack of
subject-matter

jurisdiction

and

improper

venue

or,

alternatively, to transfer the case to the U.S. District Court for
the District of Puerto Rico. Docket No. 4-1, pg. 1. The court
granted the United States its alternative relief, transferring the
case here. Docket No. 10-1, pg. 1. The United States now
moves the Court to dismiss Mr. Torres’s complaint for lack of
subject-matter jurisdiction and failure to state a claim upon
which relief can be granted. Docket No. 24.
For the reasons that follow, we DISMISS Mr. Torres’s
FTCA claims that are based on conduct that occurred before
December 2015 for failure to exhaust administrative remedies
within two years of their accrual. We, moreover, DISMISS
Mr. Torres’s remaining FTCA claims because the conduct that
forms the basis of them falls within the discretionary function
exception. And, finally, we DISMISS Mr. Torres’s Bivens
claims as time barred. Because we have dismissed Mr.
Torres’s claims against the named defendants, we ORDER
him to SHOW CAUSE why his claims against the unnamed
defendants should not be dismissed as well.
Before turning to the merits of the United States’ motion
to dismiss Mr. Torres’s complaint, we address first Mr.
Torres’s contention that we are required to deny the United
States’ motion insofar as it is based on his failure to state a
claim, Docket No. 25, pg. 2, because the U.S. District Court for
the Southern District of California determined that his
complaint “contains colorable FTCA and Bivens claims.”

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Docket No. 10-1, pg. 8. That court, however, did not
determine that his complaint states a claim. Instead, the court
determined that his complaint was nonfrivolous when it was
considering whether the interests of justice weighed in favor
of transferring the case rather than dismissing it. See Docket
No. 10-1, pg. 8 (explaining that “transfer will be in the interest
of justice if there is no evidence the case was filed in bad faith
and the plaintiff makes a colorable claim”). So there has not
yet been a determination as to whether the complaint states a
claim.
But even if the U.S District Court for the Southern District
of California had determined that Mr. Torres’s complaint
states a claim upon which relief can be granted, we would not
be bound by that decision. For we are free to reconsider earlier
interlocutory orders, including denials of motions to dismiss.
Harlow v. Children’s Hosp., 432 F.3d 50, 55 (1st Cir. 2005); see
also Latin Am. Music Co. v. Media Power Grp., Inc., 705 F.3d 34,
40 (1st Cir. 2013) (“[I]nterlocutory orders . . . remain open to
trial court reconsideration, and do not constitute the law of
the case.” (quoting Harlow, 432 F.3d at 55)).
I.

FTCA CLAIMS

The United States has moved the Court to dismiss Mr.
Torres’s FTCA claims under Federal Rule of Civil Procedure
12(b)(1) for lack of subject-matter jurisdiction, arguing that
the officers’ prisoner placement and investigation decisions
fall within the discretionary function exception. Docket No.
25, pgs. 6–7. The United States also argues that Mr. Torres has

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failed to exhaust administrative remedies for his claims based
on the officers’ search of his body. Docket No. 24, pg. 2.
A. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
We begin with the United States’ argument that Mr. Torres
has failed to exhaust administrative remedies for his claims
based on officers’ search of his body. Under the FTCA, a
plaintiff may not bring a lawsuit against the United States
unless he has exhausted his administrative remedies with the
appropriate federal agency within two years of his claims’
accrual. 28 U.S.C. § 2401(b). This requirement is “nonwaivable [and] jurisdictional.” Acosta v. U.S. Marshals Serv.,
445 F.3d 509, 513 (1st Cir. 2006) (quoting Santiago-Ramirez v.
Sec’y of Dep’t of Def., 984 F.2d 16, 18, 19–20 (1st Cir. 1993)). Tort
claims generally accrue “at the time of the plaintiff’s injury.”
Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. 2002).
Mr. Torres’s complaint provides the date that officers
allegedly searched his body for a cell phone: “on or about
June 18, 2014.” Docket No. 1, pg. 13. His complaint also
provides the dates that he filed his administrative claims:
“December 28, 2017,” and “December 29, 2017.” Docket No.
1, pg. 6. By our count, then, three and half years passed
between the officers’ search and Mr. Torres’s administrative
claims. We, therefore, lack jurisdiction to consider Mr.
Torres’s claims based on this search because they were not
administratively exhausted within two years of their accrual.

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Page 5

Although Mr. Torres has told us that he can amend his
complaint to cure his failure to exhaust administrative
remedies, Docket 25, pg. 18, we disagree. He tells us that if we
give him leave to amend, he will establish that he waited six
months for a resolution after filing his administrative
complaint before filing this lawsuit and that the government
acknowledged his administrative claim had been denied and
that he had six months from the date of denial to file a lawsuit.
Docket No. 25, pgs. 17–18. But the issue is not when Mr.
Torres brought this lawsuit. Rather, it is when he filed his
administrative complaints. And in Mr. Torres’s sur-reply, he
does not argue that he filed one in time to save his June 2014
body search claims. He argues instead that his December 2017
administrative filings save claims based on conduct that
“happened between 2015 and 2017.” Docket No. 31, pg. 3. We,
therefore, decline to allow Mr. Torres to amend his complaint
to cure his failure to administratively exhaust his claims.
We observe that many allegations in Mr. Torres’s
complaint are based on conduct that occurred before
December 2015, which means that we also lack jurisdiction to
consider those claims. Moving forward, our analysis focuses
on claims that accrued in or after December 2015. Because we
ultimately find that we lack subject-matter jurisdiction over
these claims based on the discretionary function exception,
we do not delve into whether he properly exhausted his
administrative remedies for them.

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Page 6

B. DISCRETIONARY FUNCTION EXCEPTION
We begin our discretionary function exception analysis by
specifying which of Mr. Torres’s claims may be brought
under the FTCA. The United States, as a sovereign, “is
immune from suit without its consent.” Evans v. United States,
876 F.3d 375, 380 (1st Cir. 2017). The FTCA waives the United
States’ sovereign immunity for certain torts, Holloway v.
United States, 845 F.3d 487, 489 (1st Cir. 2017), including
negligence and “assault, battery, false imprisonment, false
arrest, abuse of process, or malicious prosecution” by a
“investigative or law enforcement officer,” see 28 U.S.C. §
2680(h). Constitutional tort claims, however, may not be
brought under the FTCA. Villanueva v. United States, 662 F.3d
124, 127 (1st Cir. 2011) (“[C]onstitutional tort claims are not
cognizable under the FTCA.” (citing Fed. Deposit Ins. Corp. v.
Meyer, 510 U.S. 471, 478 (1994))). Mr. Torres, then, may bring
only his negligence, assault, battery, and false imprisonment
claims under the FTCA.
The United States’ waiver of immunity under the FTCA is
subject to certain exceptions. One of these is the discretionary
function exception. This exception bars liability for claims
“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.” Evans, 876
F.3d at 380 (quoting 28 U.S.C. § 2680(a)). If the discretionary
function exception applies, we lack subject-matter jurisdiction

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Page 7

over those claims. Reyes-Colón v. United States, 974 F.3d 56, 58
(1st Cir. 2020).
We note that there is a circuit split as to whether the
United States may be immune from intentional torts through
the discretionary function exception. Section 2680(h) of the
FTCA provides that the United States may be liable only for
certain intentional torts. See 28 U.S.C. 2680(h). The Eleventh
Circuit has determined that the discretionary function
exception does not apply to these intentional torts because
section 2680(h) allows liability for any claim arising from
them. See Nguyen v. United States, 556 F.3d 1244, 1256–57 (11th
Cir. 2009) (emphasis added). That is, the intentional torts in
section 2680(h) are not limited to only non-discretionary
conduct. But every other circuit to consider this issue has
come out the other way. Because section 2680(h) states that
“the provisions of this chapter . . . shall apply to any claim”
based on these intentional torts and the discretionary function
exception in section 2680(a) is, indeed, a provision of this
chapter, these circuits have held that the discretionary
function exception applies. See Linder v. United States, 937 F.3d
1087, 1089 (7th Cir. 2019) (collecting cases from the Fourth
Circuit, Fifth Circuit, Ninth Circuit, and D.C. Circuit). We
agree with this reading of section 2680(h) and hold that all of
Mr. Torres’s FTCA claims are subject to the discretionary
function exception.

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Page 8

Having concluded that this exception applies to all of Mr.
Torres’s FTCA claims, we turn now to our discretionary
function exception scrutiny. We must first “identify the
conduct that is alleged to have caused the harm,” then
“determine whether that conduct can fairly be described as
discretionary.” Fothergill v. United States, 566 F.3d 248, 252 (1st
Cir. 2009). And, if so, we decide “whether the exercise or nonexercise of the granted discretion is actually or potentially
influenced by policy considerations.” Id. Because our analysis
is based on the pleadings, we take as true Mr. Torres’s wellpleaded facts and draw all reasonable inferences in his favor.
Id. at 251. For analytical ease, we have divided Mr. Torres’s
allegations into two categories: (1) placement decisions and
SHU segregation, and (2) jailhouse informants.
1. PLACEMENT DECISIONS & SHU SEGREGATION
Mr. Torres alleges that officers committed negligence
and/or false imprisonment by housing him in a maximumsecurity institution when he warranted a minimum-security
institution, placing him in Special Housing Unit (“SHU”)
segregation, placing him in a “Two Hour Watch” program
where he is required to check in with prison staff every two
hours, and housing him with inmates who are cooperating
with the United States. Docket No. 1, pgs. 12, 14–17.
We

evaluate

first

whether

these

decisions

are

discretionary. If there is a federal statute or regulation
prescribing a course of action that an officer must follow such
that the officer’s decision was not the “product of judgment

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Page 9

or choice,” then the conduct is not discretionary. Berkovitz v.
United States, 486 U.S. 531, 536 (1988). But where the “[officers]
in question have latitude to make decisions and choose
among alternative courses of action,” the conduct is
discretionary. Carroll v. United States, 661 F.3d 87, 101 (1st Cir.
2011) (quoting Bolduc v. United States, 402 F.3d 50, 61 (1st Cir.
2005)). Officers are given broad latitude to classify prisoners
and place them in institutions, limited only by a list of
considerations. See, e.g., 18 U.S.C. § 3621 (providing that
officers may choose the prisoner’s place of imprisonment,
considering factors such as “the nature and circumstances of
the offense,” “history and characteristics of the prisoner,” and
“the resources of the facility contemplated”); 18 U.S.C. § 4081
(providing that prisoners should be properly classified and
segregated “according to the nature of the offense committed,
the character and mental condition of the prisoners, and such
other factors as should be considered in providing an
individualized system of discipline, care, and treatment of the
persons committed to such institutions”). Officers have
similarly broad latitude to place prisoners in the SHU. See,
e.g., 18 U.S.C. § 4042(a)(2)–(3) (stating that officers must
provide

for

prisoners’

“protection,”

“discipline,”

“safekeeping,” and “care”); 28 C.F.R. § 524.72(h) (providing
that an inmate may be assigned separation based on a variety
of factors). Because officers’ decisions concerning how to
classify, where to place, and whether to separate prisoners are
subject to judgment or choice, we conclude that they are

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Page 10

discretionary. See Cohen v. United States, 151 F.3d 1338, 1343–
44 (11th Cir. 1998) (concluding that “Congress intended to
give the BOP discretion in making its classification decisions
and determinations about placement of prisoners”); Rich v.
United States, 811 F.3d 140, 145 (4th Cir. 2015) (concluding that
the decision to place a prisoner in the SHU is discretionary).
Turning to the final step of our analysis, we have no
difficulty concluding that the discretion given to officers to
make prisoner classification, placement, and SHU-related
decisions are grounded in public policy. We begin with a
“presumption that the exercise of discretion by a government
official implicates a policy judgement.” Carroll, 661 F.3d at
104. And, here, this discretion implicates policy judgments
about preserving internal order in prisons, discipline,
maintaining institutional security, available resources, and
appropriate security levels. See Cohen, 151 F.3d at 1344
(“Deciding how to classify prisoners and choosing the
institution in which to place them are part and parcel of the
inherently policy-laden endeavor of maintaining order and
preserving security within our nation’s prisons.” (citing Bell
v. Wolfish, 441 U.S. 520, 547 (1979)); Rich, 811 F.3d at 146
(holding that decisions concerning whether to separate
prisoners are “precisely the kind of determinations that the
discretionary function exception is intended to protect”);
Dykstra v. U.S. Bureau of Prisons, 140 F.3d 791, 796 (8th Cir.
1998)

(determining

that

classification

decisions

are

“inherently grounded in social, political, and economic

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Page 11

policy”). We hold that these types of policy decisions are
those that Congress, through the discretionary function
exception, “wanted to prevent courts from second-guessing.”
Fothergill, 566 F.3d at 253. The United States, therefore, is not
liable under the FTCA for its decisions to house Mr. Torres in
a maximum-security institution, place him in the SHU, place
him in the “Two Hour Watch” program, and house him with
inmates who are cooperating with the United States.
We

dismiss

Mr.

Torres’s

negligence

and

false

imprisonment claims insofar as they are based on these
decisions because we lack subject-matter jurisdiction over
them. See Carroll, 661 F.3d at 93 (providing that federal courts
lack subject-matter jurisdiction over FTCA claims when an
exception applies).
2. JAILHOUSE INFORMANTS
Mr. Torres alleges that officers negligently tried to elicit
from him incriminating statements about the murder of a
corrections officer using jailhouse informants. Docket No. 1,
pgs. 9–13. We evaluate first whether the decision to use
jailhouse

informants

in

a

murder

investigation

is

discretionary. We hold that it is.
The discretionary function exception “protects decisions
concerning the scope and manner” of an investigation so long
as a federal statute or policy does not specifically mandate a
course of action. Vickers v. United States, 228 F.3d 944, 951 (9th
Cir. 2000). Mr. Torres, who bears the burden of proving that
sovereign immunity has been waived, has not pointed us to

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Page 12

any statute, regulation, or policy that requires officers to use
jailhouse informants to investigate a murder. See Mahon v.
United States, 742 F.3d 11, 14–15 (1st Cir. 2014) (affirming
dismissal for lack of subject-matter jurisdiction at the
pleadings stage because plaintiff could not point to a specific
statute or policy mandating the United States’ behavior and,
thus, its behavior was discretionary). And, because he has not
pointed us to such a statute or policy, we find that the decision
to use jailhouse informants in a murder investigation is the
product of choice and is, therefore, discretionary. See id. at 15–
16; see also Bernitsky v. United States, 620 F.2d 948, 955 (3d Cir.
1980) (concluding that “[d]ecision making as to investigation
and enforcement” are “discretionary judgments”).
We, moreover, conclude that the discretion to select the
manner and means of an investigation is policy driven. For
investigations “clearly require investigative officers to
consider relevant political and social circumstances in making
decisions about the nature and scope of a criminal
investigation.” Alfrey v. United States, 276 F.3d 557, 565 (9th
Cir. 2002); see also Suter v. United States, 441 F.3d 306, 312 (4th
Cir. 2006) (concluding that the FBI’s investigation decisions
are those “which we would expect inherently to be grounded
in considerations of policy” (quoting Baum v. United States,
986 F.3d 716, 721 (4th Cir. 1993))). The United States’ decision
to use jailhouse informants to investigate the murder of a
corrections officer, therefore, falls within the discretionary
function exception. Mr. Torres’s negligence claim is barred for

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Page 13

lack of subject-matter jurisdiction insofar as it is based on this
decision.
II.

BIVENS CLAIMS

Mr. Torres raises Bivens claims against the officers for
allegedly violating his First, Fourth, Fifth, Sixth, and Eighth
Amendment rights. In Bivens, the U.S. Supreme Court
recognized a private right of action against federal officers
who have allegedly violated constitutional rights. Casey v.
Dep’t of Health & Hum. Servs., 807 F.3d 395, 400 (1st Cir. 2015);
see also Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics,
403 U.S. 388, 389 (1971) (holding that a Fourth Amendment
violation by a federal agent gives rise to a cause of action for
damages). But the U.S. Supreme Court has recognized Bivens
actions only in particular situations implicating the Fourth,
Fifth, or Eighth Amendment. González v. Vélez, 864 F.3d 45, 53
(1st Cir. 2017). The Court, moreover, has expressed great
reluctance at extending the Bivens remedy further, calling it a
“disfavored judicial activity.” See Ziglar v. Abbasi, 137 S. Ct.
1843, 1857 (2017). We, however, need not opine on whether
Mr. Torres’s particular claims fit within the narrow confines
of Bivens because we find that they fail for another reason: the
statute of limitations has expired.
Although Congress has not provided a statute of
limitations for Bivens actions, “courts generally have applied
state statutes of limitations to Bivens actions.” Estate of Barrett
v. United States, 462 U.S. 28, 38 (1st Cir. 2006) (quoting Rossiter
v. Potter, 357 F.3d 26, 34 n.7 (1st Cir. 2004)). Here, Puerto

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Page 14

Rico’s 2 statute of limitations for Mr. Torres’s claims based on
“fault or negligence” is one year. P.R. Laws Ann. tit. 31, §
5298(2) (2020). The accrual date of Mr. Torres’s claims,
however, is governed by federal law, which provides that the
“statute of limitations on a Bivens claim begins to run when
the plaintiff knows or has reason to know of the existence and
cause of the injury which is the basis of his action.” PagánGonzález v. Moreno, 919 F.3d 582, 589 (1st Cir. 2019).
Mr. Torres filed his complaint on January 9, 2019. Docket
No. 1. To have filed within the one-year statute of limitations,
then, his claims must have accrued on or after January 9, 2018.
But the allegations in Mr. Torres’s complaint occurred before
January 9, 2018. Mr. Torres alleges, for example, that the
United States used audio and video recording equipment
near his seat while he was being transferred to another
facility—an incident that was documented in a report from
March 2013. Docket No. 1, pgs. 9–10. And the allegations
concerning the United States’ usage of jailhouse informants
are dated between 2013 and 2017. Docket No. 1, pgs. 9–12. The
body search for a cellphone, moreover, took place on or about
June 18, 2014. Docket No. 1, pg. 13. Finally, the “un-

2. Because Mr. Torres’s case was transferred to Puerto Rico under 28
U.S.C. § 1406(a) due to improper venue in California, Docket No. 10-1, pg.
7, Puerto Rico’s statute-of-limitations period applies, and the date that Mr.
Torres filed his complaint in California counts as the date of filing in our
statute-of-limitations analysis. See Lafferty v. Gito St. Reil, 495 F.3d 72, 81
(3d Cir. 2007) (“[T]he transferee forum’s limitations statute applies and the
date of the initial filing in the improper forum counts as the date of the
filing in the transferee forum for limitations purposes when the case is
transferred rather than dismissed under § 1406(a).”).

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Page 15

mirandized custodial interrogation” took place in May 2017.
Docket No. 1, pg. 15. Because Mr. Torres’s complaint contains
no allegations of conduct that occurred within one year of this
lawsuit being filed, we dismiss his Bivens claims as time
barred.
In sum, we DISMISS Mr. Torres’s FTCA claims that are
based on conduct that occurred before December 2015 for
failure to exhaust administrative remedies within two years
of their accrual. We DISMISS Mr. Torres’s remaining FTCA
claims because the conduct that forms the basis of them falls
within the discretionary function exception. We, finally,
DISMISS Mr. Torres’s Bivens claims as time barred. Because
we have dismissed Mr. Torres’s claims against the named
defendants, we ORDER him to SHOW CAUSE why his
claims against the unnamed defendants should not be
dismissed as well. He has fourteen (14) days to show cause in
a filing, which must comply with Local Rule 7(d) and be no
longer than ten (10) pages. Failure to comply with this order
will result in the dismissal of Mr. Torres’s claims against the
unnamed defendants.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 30th day of March, 2021.
S/ SILVIA CARREÑO-COLL
UNITED STATES DISTRICT COURT JUDGE