United States District Court, D. Arizona
K. Jorgenson, Judge
October 11, 2017, the Magistrate Judge issued a Report and
Recommendation (“R&R”) (Doc. 150) in which
she recommended that this Court deny Plaintiffs' Motion
for Summary Judgment (Doc. 127). After the R&R issued,
the Government filed objections (Doc. 151), Plaintiffs a
response (Doc. 152), and the Government a reply (Doc. 153).
Government's Motion for Summary Judgment asks the Court
to dismiss Plaintiffs' claims under the Federal Tort
Claims Act (“FTCA”) of negligence, gross
negligence, assault, false imprisonment, and intentional
infliction of emotional distress. The allegations stem from a
U.S. Border Patrol checkpoint stop, interrogation, and
incarceration, in which the Plaintiffs were accused of
transporting methamphetamine. (Doc. 20 at 2-6.) Ultimately,
no drugs were found in Plantiffs' vehicle. (Id.
at 7.) The Government contends the actions of Border Patrol
agents lie within the discretionary function exception,
precluding any liability under the FTCA. (Doc. 127 at 1.)
Upon review, the Court finds that Plaintiffs' claims are
precluded, and grants the Government‘s Motion for
Summary Judgment as to Plaintiffs' claims of negligence,
gross negligence, assault, and false imprisonment. However,
the Court finds Plaintiffs' intentional infliction of
emotional distress claim raises a genuine issue of material
fact and is not precluded under FTCA. The Court, therefore,
denies summary judgment as to this issue.
Objections to R&R
standard of review that is applied to a magistrate
judge's report and recommendation is dependent upon
whether a party files objections - the Court need not review
portions of a report to which a party does not object.
Thomas v. Arn, 474 U.S. 140, 150 (1985). However,
the Court must “determine de novo any part of
the magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with
instructions.” Fed.R.Civ.P. 72(b)(3); see also
28 U.S.C. § 636(b)(1). Nonetheless, “while the
statute does not require the judge to review an issue de
novo if no objections are filed, it does not preclude
further review by the district judge, sua sponte or
at the request of a party, under a de novo or any
other standard.” Thomas, 474 U.S. at 154.
must grant summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). A genuine dispute
exists “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
movant bears the initial responsibility of presenting the
basis for its motion and identifying those portions of the
record, together with affidavits, if any, that it believes
demonstrate the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. If the moving party
carries “the burden of proof on an issue at trial, the
movant must affirmatively demonstrate that no reasonable
trier of fact could find other than for the moving
party.” Soremekun v. Thrifty Payless, Inc.,
509 F.3d 978, 984 (9th Cir. 2007). However, if the burden
rests on the non-moving party, “the moving party need
only prove that there is an absence of evidence to support
the non-moving party's case.” In re Oracle
Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir. 2010).
movant fails to carry its initial burden of production, the
nonmovant need not produce anything. Nissan Fire &
Marine Ins. Co., Ltd. v. Fritz Co.,
Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But,
if the movant meets its initial responsibility, the burden
shifts to the nonmovant to demonstrate the existence of a
factual dispute and to show the fact in contention is
material-i.e., a fact that might affect the outcome of the
suit under the governing law-and that the dispute is genuine.
Anderson, 477 U.S. at 248, 250; see also Triton
Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th
Cir. 1995). The nonmovant need not establish a material issue
of fact conclusively in its favor, First Nat'l Bank
of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89
(1968); however, it must “come forward with specific
facts showing that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (internal citation
omitted); see Fed.R.Civ.P. 56(c)(1).
summary judgment, the judge's function is not to weigh
the evidence and determine the truth, but to determine
whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. In its analysis, the
court must believe the nonmovant's evidence and draw all
inferences in the nonmovant's favor. Id. at 255.
“The court need consider only the cited materials, but
it may consider any other materials in the record.”
Fed.R.Civ.P. 56(c)(3). If, after considering the arguments
and materials in the record, it appears that jurors of reason
could find by a preponderance of the evidence that the
defendant is liable, then the court should not grant summary
judgment. Cornwell v. Electra Cent. Credit Union,
439 F.3d 1018, 1027-28 (9th Cir. 2008). If, however, jurors
of reason could not determine that plaintiff is entitled to a
judgment in his favor, then summary judgment is appropriate.
Id. at 1028.
this standard, the Court is only to consider admissible
evidence. Moran v. Selig, 447 F.3d 748, 759-60 (9th
Cir. 2006) (pleading and opposition must be verified to
constitute opposing affidavits); FDIC v. New Hampshire
Ins. Co., 953 F.2d 478, 484 (9th Cir. 1991)
(declarations and other evidence that would not be admissible
may be stricken). A “genuine” issue of
“material” fact cannot be created by a party
simply making assertions in its legal memoranda. See
Varig Airlines v. Walter Kidde & Co., 690 F.2d 1235,
1238 (1982). Indeed, a “conclusory, self-serving
affidavit, lacking detailed facts and any supporting
evidence, is insufficient to create a genuine issue of
material fact.” Nilsson v. City of Mesa, 503
F.3d 947, 952 n.2 (9th Cir. 2007). Moreover, statements must
allege personal knowledge. See Skillsky v. Lucky Stores,
Inc., 893 F.2d 1088, 1091 (9th Cir. 1990) (“Like
affidavits, deposition testimony that is not based on
personal knowledge and is hearsay is inadmissible and cannot
raise a genuine issue of material fact sufficient to
withstand summary judgment.”). Speculation is not
competent evidence. Huggins v. Deinhard, 134 Ariz.
98, 104, 654 P.2d 32, 38 (App. 1982); Nelson v. Pima
Cmty. College, 85 F.3d 1075, 1081-82 (9th Cir. 1996)
(“mere allegation and speculation do not create a
factual dispute for purposes of summary judgment”);
Soremekun, 509 F.3d at 985 (conclusory, speculative
testimony in affidavits and moving papers is insufficient to
raise genuine issues of fact and defeat summary judgment).
and Procedural History
parties do not object to the Magistrate Judge's factual
determinations. The Court has reviewed and adopts the
Magistrate Judge's factual and procedural history.
Tort Claims Act and the Discretionary Function
FTCA “is the exclusive remedy for tortious conduct by
the United States.” Federal Deposit Ins. Corp. v.
Craft, 157 F.3d 697, 706 (9th Cir. 1998); 28 U.S.C.
§ 2679. Under the FTCA, liability may be imposed
“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.” 28 U.S.C. § 1346(b); see also
United States. v. Olsen, 546 U.S. 43, 44 (2005).
this Court may not exercise jurisdiction over FTCA claims in
which the United States has not “unequivocally
expressed” that it has waived its sovereign immunity.
United States v. White Mt. Apache Tribe, 537 U.S.
465, 472 (2003). In addition, the factual allegations in a
petitioner's claim must “fall within the terms of
the waiver.” Id. The United States'
maintains sovereign immunity when a claim arises under the
discretionary function exception. This exception applies to:
[a]ny claim based upon an act or omission of an employee of
the Government, exercising due care, in the execution of a
statute or regulation, whether or not such statute or
regulation be valid, or 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) (emphasis added).
order to determine whether the discretionary function
exception applies, the court must engage in a two-step
inquiry.” Nurse v. United States, 226 F.3d
996, 1001 (9th Cir. 2000). The threshold question for the
court is “whether the challenged conduct involves an
element of judgment or choice.” Id. “The
requirement of judgment or choice is not satisfied if a
federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow,
because the employee has no rightful option but to adhere to
the directive.” United States v. Gaubert, 499
U.S. 315, 322 (1991) (internal citations and quotations
omitted). However, an agency's conduct involves an
element of choice when “no statute or agency policy
dictates the precise manner in which the agency is to
complete the challenged task.” Green v. United
States, 630 F.3d 1245, 1249-50 (9th Cir. 2011)
(citing Childers v. United States, 40 F.3d 973, 976
(9th Cir. 1995)).
conduct involved a choice, the second part of the inquiry is
“whether that judgment is of the kind that the
discretionary function exception was designed to
shield.” Id. (citing Gaubert, 499
U.S. at 322-23); see also United States v. Varig
Airlines, 467 U.S. 797, 813 (1984). The shield covers
actions that “involve considerations of social,
economic, or political policy.” Sabow v. United
States, 93 F.3d 1445, 1451 (9th Cir. 1996). “[I]f
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 regulations.” Gaubert, 499
U.S. at 323-24. “The determination of whether given
conduct falls within the discretionary function exception
must focus on the ‘nature of the conduct, rather than
the status of the actor.'” Nurse, 226 F.3d
at 996 (quoting Gaubert, 499 U.S. at 322).
the challenged action satisfies both prongs, that action is
immune from suit-and federal courts lack subject matter
jurisdiction- even if the court thinks the government
abused its discretion or made the wrong choice.”
Green, 630 F.3d at 1249-50 (emphasis added). At
summary judgment, the Government must affirmatively establish
the exceptions' applicability to strip the district court
of jurisdiction. O'Toole v. United States, 295
F.3d 1029, 1032 (9th Cir. 2002).
Investigation . Discretionary
Decisions in Criminal Investigation
instance, the Court must first address whether the executive
branch has given the U.S. Border Patrol discretion for the
agents' actions during its criminal investigation of the
Magistrate Judge conceded that the agents' investigation
and arrest were discretionary, and not subject to mandatory
regulations. (Doc. 150 at 9.) Furthermore, Plaintiffs do not
dispute agents' discretion, nor provide any mandatory
regulations which outline specified conduct agents must
follow during a criminal investigation.
Indian Towing Analysis
R&R determined that while the decisions to investigate
were discretionary, when agents made those decisions they
could not do it in a “slipshod manner.” (Doc. 150
at 9.) Therefore, agents' poor investigative techniques
raise a genuine issue for trial. (Id.) To come to
her decision, the Magistrate Judge primarily used a line of
cases starting with Indian Towing Co. v. United
States, 350 U.S. 61, 69 (1955). This case and the cases
following its reasoning essentially state that the government
may make discretionary choices, but once made, there is an
obligation to exercise due care in implementing these
Government asserts that Indian Towing and its
progeny do not apply to criminal law enforcement
investigations, but rather to ministerial decisions, or
design-implementation determinations. (Doc. 151 at 3
(citing Gonzalez v. United States, 814 F.3d 1022,
1035 (9th Cir. 2016)). It argues that the Indian
Towing analysis is also no longer applicable to the
discretionary function exception; a change noted in
Gaubert, 499 U.S. at 325. (Doc. 151 at 3-4); see
e.g., Harrell v. United States, 443 F.3d 1231, 1237
(10th Cir. 2006) (“Since Gaubert, several
Circuit Courts of Appeals . . . have expressly recognized
that Indian Towing is simply not persuasive
authority in the context of the discretionary function
exception.”) The Government claims the Ninth Circuit
evaluates criminal investigations based only on the two-fold
test, not the more stringent design-implementation sub-test
used by the Magistrate Judge. (Doc. 151 at 5.)
the Magistrate Judge, Plaintiffs argue that agents were
required to exercise due care in their investigation. (Doc.
153 at 3.) Plaintiffs also posit that their constitutional
rights were violated when they were held without probable
cause because of a negligent canine search, negligent drug
testing, and an unlawful interrogation. (Doc. 153 at 2, 4.)
However, Plaintiffs' support includes only case law
issued prior to the Gaubert decision, cases that
were not pursuant to criminal investigations, or cases that
are factually distinguishable.
Court finds that the Ninth Circuit has rejected analyzing
criminal investigations under the Indian Towing
standard, and the two-prong test is appropriate to determine
if the discretionary function applies. See Gonzales,
814 F.3d at 1034-35; see also Alfrey v. United
States, 276 F.3d 557, 567 (9th Cir. 2002). Furthermore,
as conceded by Plaintiffs, criminal law enforcement
investigations are discretionary and are covered by the
discretionary function exception if the actions also
implicate policy concerns. See Sabow, 93 F.3d at
1452; Gasho v. United States, 39 F.3d 1420, 1435
(9th Cir. 1994).
Policy Concerns in Law Enforcement
only remaining issue is whether the actions implicated
concerns about “social, economic, or political
policy.” Sabow, 93 F.3d at 1451.
investigation of crime involves policy judgments at the core
of the executive branch. In investigations . . . the
executive must consider the reliability of the information,
the relative importance of the crime, and the agency's
mission and resources.” Gonzalez, 814 F.3d at
1032; Kearns v. United States, CV 4-1937 PHX-NVW,
2007 WL 552227 at *21 (D. Ariz. Feb 21, 2007), rev'd and
remanded on other grounds, 07-15769, 2009 WL 226207 (9th Cir.
Jan. 28, 2009) (“As a general matter, once the decision
to investigate is made, “Congress did not intend to
provide for judicial review of the quality of the
investigation as judged by the outcome.”).
policy basis for an investigation is not undermined by
incompetence or abuse of discretion. “Investigations by
federal law enforcement officials . . . clearly require
investigative officers to consider relevant political and
social circumstances in making decisions about the nature and
scope of a criminal investigation. . . . [A]s long as conduct
is discretionary and of the type meant to be protected by the
discretionary function exception, the exception applies even
where a government actor abuses his or her discretion and
even where the conduct is tortious or demonstrates poor
judgment.” Parker v. United States, CV
10-1407-PHX-SRB, 2011 WL 13189942, at *6-7 (D. Ariz. May 6,
2011), aff'd, 500 Fed.Appx. 630 (9th Cir. 2012)
(citing Sabow, 93 F.3d at 1452 n.6, 1453-54);
Gasho, 39 F.3d at 1435; 28 U.S.C. § 2680(a)).
The exception applies to criminal investigative actions even
if they are appalling, negligent, or bad investigative
technique. See e.g., Alfrey, 276 F.3d at 565-66
(FBI's actions were “alarming instances of poor
judgment and a general disregard for sound investigative
procedure, ” but still implicated policy
considerations); see also Casillas v. United States,
CV 07-395-TUC-DCB (HCE), 2009 WL 735193 at *12 (D. Ariz.
2009), report and recommendation adopted, 2009 WL
735188 (D. Ariz. 2009) (obtaining search warrant with errors
in the affidavit still implicated policy concerns of
protecting the public from criminal activity); Tsolmon v.
United States, CV 13-3434, 2015 WL 5093412 at *11 (S.D.
Tex. Aug. 28, 2015) aff'd, 841 F.3d 378 (5th
Cir. 2016) (Incompetence and drawing wrong conclusion from
evidence “do[es] not establish the egregious bad faith
or intentional misconduct that courts have construed to be
whether an action implicates policy considerations does not
depend on the “agent's subjective intent in
exercising discretion . . . but on the nature of the actions
and on whether they are susceptible to policy
analysis.” Gaubert, 499 U.S. at 325. “In
other words, what matters is the type of decision being
challenged not what the decisionmaker was thinking at the
time.” Davis v. United States, 196 F.Supp.3d
106, 118 (D.D.C. 2016) (internal quotations omitted).
few exceptions, the Ninth Circuit has found that a
discretionary criminal investigation is covered by the
discretionary function exception unless: (1) there
was actually a mandatory guideline the agent needed to follow
and did not, or (2) there was truly no logical basis for the
agents' actions (i.e. choice was based on a
constitutional violation or otherwise was not a viable way to
further an investigation), see, e.g., Sabow, 93 F.3d
at 1454; see also Patel v. United States, 806
F.Supp. 873, 878 (N.D.Cal. 1992).
Claims Under the Discretionary Function
Government also maintains sovereign immunity for certain
types of tortious conduct. 28 U.S.C. § 2680(h). However,
the “law enforcement proviso” limits this
immunity, providing an avenue for relief to a petitioner when
the tort is committed by a law enforcement officer. “On
its face, the law enforcement proviso applies where a claim
both arises out of one of the proviso's six intentional
torts [assault, battery, false imprisonment, false arrest,
abuse of process, or malicious prosecution], and is related
to the ‘acts or omissions' of an
‘investigative or law enforcement officer” . . .
who is “acting within the scope of his office or
employment.” Millbrook v. United States, 569
U.S. 50, 55 (2013) (quoting 28 U.S.C. § 1346(b));
see also Arnsburg v. United States, 7 ...