Ahern v. United States Of America

Filing 32

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: denying 27 Opposed MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 29 Memorandum and Recommendations (Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JOHN D AHERN
Plaintiff
VS.
UNITED STATES OF AMERICA

January 11, 2016
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:14-CV-259
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ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court is the Government’s Motion to Dismiss Complaint, or in
the Alternative, Motion for Summary Judgment (D.E. 27), to which Plaintiff has filed a
response in opposition (D.E. 28). On July 15, 2015, United States Magistrate Judge
Jason B. Libby issued a Memorandum and Recommendation (“M&R”) (D.E. 29),
recommending that the Government’s motion to dismiss be denied. The Government
filed its objection (D.E. 30) and Plaintiff filed his response (D.E. 31) to the objection.
Plaintiff is a former federal prisoner and filed this civil rights action pursuant to
the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2674 et seq. D.E. 1 and D.E. 16.
Plaintiff is seeking damages against the United States based on the conduct of the United
States Marshals Service (USMS) in failing to provide him adequate medical attention
while he was confined at the Coastal Bend Detention Center (CBDC). D.E. 1.
The Government objects to the M&R on the basis that the Magistrate Judge failed
to consider its assertion that this Court lacks subject matter jurisdiction. D.E. 30, p. 3.
Plaintiff’s claim allegedly arises under the FTCA so jurisdiction is premised on 28 U.S.C.
§ 1331.
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The Government argues that the FTCA is not applicable because of the

independent contractor exception. It claims that Plaintiff seeks to hold the USMS liable
for the actions of the CBDC, an independent contractor.
The M&R sets forth facts which indicate that the USMS did not release the day–
to–day operations of the facility to the CBDC, at least with respect to the medical
treatment. The M&R correctly states that at this stage of the proceedings, Plaintiff’s
claims are sufficient to establish jurisdiction.

Thus, the Government’s objection is

OVERRULED.
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as the
Government’s objection, and all other relevant documents in the record, and having made
a de novo disposition of the portion of the Magistrate Judge’s Memorandum and
Recommendation to which the objection was specifically directed, the Court
OVERRULES the Government’s objection and ADOPTS as its own the findings and
conclusions of the Magistrate Judge (D.E. 29). Accordingly, the Government’s Motion
to Dismiss Complaint, or in the Alternative, Motion for Summary Judgment (D.E. 27) is
DENIED.
ORDERED this 11th day of January, 2016.
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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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