Ahern v. United States Of America
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re: 62 Opposed MOTION to Dismiss Complaint, 65 Memorandum and Recommendation. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JOHN D AHERN
UNITED STATES OF AMERICA
June 30, 2017
David J. Bradley, Clerk
§ CIVIL ACTION NO. 2:14-CV-259
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Pending before the Court are Plaintiff John D. Ahern’s (Ahern’s) Motion for Default
Judgment (D.E. 59) and Defendant, United States of America’s (the Government’s) Motion to
Dismiss Under Discretionary Function Exception to the FTCA or in the Alternative Motion for
Summary Judgment (D.E. 62). On May 19, 2017, United States Magistrate Judge Jason B.
Libby issued his Memorandum and Recommendation (M&R, D.E. 65), recommending that
Ahern’s motion be denied and that the Government’s motion, construed as a Rule 12(b)(1)
motion to dismiss for lack of subject-matter jurisdiction, be granted, and that Ahern’s
complaint be dismissed. Ahern filed his objections (D.E. 66)1 untimely, on June 9, 2017.
Nonetheless, the Court considers Ahern’s challenges to the M&R.
Ahern’s objections do not include any complaint with respect to the recommended
denial of his motion for default judgment. The Court therefore adopts the reasoning of the
M&R on that issue and DENIES Ahern’s motion (D.E. 59).
The balance of this order
Ahern titled his objections as “Response to Memorandum and Recommendation to Defendants [sic] Motion for
Summary Judgment.” D.E. 66. The procedure with respect to M&Rs calls for any complaint to be stated as an objection
and the Court construes Ahern’s response accordingly.
addresses Ahern’s action brought under the Federal Tort Claims Act (FTCA), 28 U.S.C.
§ 2674 and the recommended disposition and objections thereto.
The Magistrate Judge found that Ahern’s FTCA claim was barred by the discretionary
function exemption of 28 U.S.C. § 2680(a). While Ahern’s objection (D.E. 66) essentially rebriefs Ahern’s positions regarding his entire case theory and history, the Court focuses only on
the discretionary function exemption, which is the dispositive issue. While not itemized,
Ahern states two objections to the M&R that are relevant to the recommendation in the M&R.
First, Ahern objects to the conclusion that the marshal’s conduct involved a
He claims that a policy decision may be discretionary, but the
execution of that decision—the operational phase—is not. See Indian Towing Co. v. United
States, 350 U.S. 61 (1955); United States v. Muniz, 374 U.S. 150, 165 (1963); Cowart v.
United States, 617 F.2d 112, 117 (5th Cir. 1980); and Jones v. United States, 534 F.2d 53 (5th
Cir.1976). The Supreme Court rejected that view in United States v. Gaubert, 499 U.S. 315,
The discretionary aspect of conduct for purposes of the FTCA exemption is not
determined by the status of the actor or a policy/operation dichotomy. Gaubert, 499 U.S. at
325-26. Rather, it depends on whether the actor’s range of options requires proceeding in a
certain manner under government dictate. In finding the government actors within the scope of
the exemption in that case, the Court wrote: “Not only was there no statutory or regulatory
mandate which compelled the regulators to act in a particular way, but there was no prohibition
against the use of supervisory mechanisms not specifically set forth in statute or regulation.”
Id. at 330.
It cannot be said that “the considerations involving the day-to-day management of a
business concern . . . are so precisely formulated that decisions at the operational level never
involve the exercise of discretion within the meaning of § 2680(a) . . . .” Id. at 331. That is
particularly clear here, where the gist of Ahern’s complaint is that the United States Marshals
Service (USMS), through information provided to its individual marshals, should have revoked
its discretionary decision to delegate Ahern’s custody and/or medical care to the Coastal Bend
Detention Center (CBDC). That complaint clearly invokes a governmental policy decision,
which is permitted by the statutes upon which Ahern relies. See 18 U.S.C. §§ 4013, 4042
(permitting agreements to house prisoners in non-federal institutions).
The M&R recognized that, as a policy decision, delegation of inmate care is within the
discretionary exemption of the FTCA. D.E. 65, pp. 13-16. Ahern has not demonstrated that
the M&R is incorrect on that issue. More specifically, the fact that Ahern has not stated a
cognizable claim is evident from the fact that he does not articulate what precise action he
expected the marshals to take in response to his complaints. Clearly, the marshals did not have
the medical expertise or license to deliver him the care he desired. And Judge Rainey is quoted
merely as suggesting that they “do something” to assist.
There was no specific course of conduct prescribed for this situation. The marshals
could prod CBDC to do a better job with complaints or reminders of Ahern’s plight. They
could seek a discretionary placement of Ahern in a different facility. They could refer the
issue up the chain of command leading, within a higher level policymaker’s discretion, to a
decision to alter the delegation to CBDC of any federal inmate incarceration. Multiple choices
for effectuating the policy decisions regarding the custody of federal inmates make it clear that
Ahern’s complaint triggers the discretionary function exemption from FTCA liability.
This has been the decision of other courts evaluating similar fact patterns. See Lopez v.
U.S. Immigration & Customs Enf't, 455 F. App'x 427, 432 (5th Cir. 2011) (applying the
discretionary function exemption to reject FTCA liability against USMS for allegedly violating
its own nondiscretionary policies in failing to inspect a contractor’s operations and failing to
oversee the facility's medical care). “Supervision of a contractor's work, including the degree
of oversight to exercise, is inherently a discretionary function. Similarly, a decision to hire a
contractor and the choice of contractor are policy-based discretionary decisions.” Guile v.
United States, 422 F.3d 221, 231 (5th Cir. 2005) (citations omitted). See also, Johnson v.
United States, No. CIV.A. 4:05CV40, 2006 WL 572312, at *6 (E.D. Va. Mar. 7, 2006)
(rejecting USMS liability for acts of contractor with responsibility for housing federal
inmates). Ahern’s first objection is OVERRULED.
Second, Ahern objects because there are multiple statutes or regulations governing the
care of prisoners that state the government’s responsibilities in terms of what it “shall” do.
Ahern argues that fundamental life issues such as good quality medical care are therefore
mandatory responsibilities of the government. This, Ahern infers, makes any act regarding
medical care a prescribed operational one, falling outside the scope of the FTCA discretionary
As the Fifth Circuit has found, “[M]any policy statements couched in seemingly
mandatory language ultimately present only ‘generalized, precatory, or aspirational language
that is too general to prescribe a specific course of action for an agency or employee to
follow.’” Lopez, 455 F. App’x at 433 (citing Freeman v. United States, 556 F.3d 326, 338 (5th
Cir.2009)). The Fifth Circuit followed that principle in Lopez in determining that the policies
or directives applied to the USMS for prisoner care, while stating that certain things were
required, were not sufficiently specific to keep the decisions from being discretionary and
exempt from FTCA liability. Lopez, 455 F. App’x at 433. Ahern’s second objection is
Having reviewed the findings of fact, conclusions of law, and recommendations set
forth in the Magistrate Judge’s Memorandum and Recommendation, as well as Ahern’s
objections, and all other relevant documents in the record, and having made a de novo
disposition of the portions of the Magistrate Judge’s Memorandum and Recommendation to
which objections were specifically directed, the Court OVERRULES Ahern’s objections and
ADOPTS as its own the findings and conclusions of the Magistrate Judge. Accordingly,
Defendant’s Motion to Dismiss Under Discretionary Function Exception to the FTCA or in the
Alternative Motion for Summary Judgment (D.E. 62) is GRANTED and this action is
DISMISSED WITH PREJUDICE.
ORDERED this 29th day of June, 2017.
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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