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Martinez v. United States

United States District Court, D. Arizona

July 9, 2018

Armando Nieves Martinez, et al., Plaintiffs,
United States of America, Defendant.


          Kindy K. Jorgenson, Judge

         On 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).

         The 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.

         Standard of Review

         . Objections to R&R

         The 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.

         . Summary Judgment

         A court 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 (1986).

         The 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).

         If the 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).

         At 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.

         Under 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).

         Factual and Procedural History

         The 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.

         Federal Tort Claims Act and the Discretionary Function Exception

         The 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).

         However, 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).

         “In 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)).

         If the 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).

         “If 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).

         Criminal Investigation . Discretionary Decisions in Criminal Investigation

         In this 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 Martinez family.

         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

         The 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 choices.

         The 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.)

         Like 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.

         The 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 Investigation

         The only remaining issue is whether the actions implicated concerns about “social, economic, or political policy.” Sabow, 93 F.3d at 1451.

         “The 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.”).

         The 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 nondiscretionary conduct.”).

         Moreover, 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).

         With 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).

         Tort Claims Under the Discretionary Function Exception

         The 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 ...

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