Casillas, et. al v. USA, et. al, No. 4:2007cv00395 - Document 46 (D. Ariz. 2009)

Court Description: ORDER granting 31 Motion to Dismiss Case for Lack of Jurisdiction; finding as moot 31 Motion for Summary Judgment; denying 32 Motion to Strike; adopting 40 Report and Recommendations. ORDERED this action is DISMISSED & closed; Clk to enter judgment accordingly. Signed by Judge David C Bury on 3/18/09.(JEMB, )
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Casillas, et. al v. USA, et. al Doc. 46 1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE DISTRICT OF ARIZONA 6 7 8 9 10 ) ) ) ) ) ) ) ) ) ) ) ) Jose and Adelina Casillas, Plaintiffs, vs. 11 United States of America, 12 Defendant. 13 CV-07-395-TUC-DCB ORDER 14 15 Pending before this Court is the Report and Recommendation of 16 Magistrate Judge Estrada, Plaintiffs’ Objections and Defendant’s Response 17 to Objections. After conducting a de novo review of the record, this 18 Court will: adopt the Report and Recommendation (RR), grant Defendant’s 19 Motion 20 Defendant’s Motion for Summary Judgment, deny Plaintiffs’ Motion to 21 Strike Defendant’s Pleadings, and dismiss this action. 22 to The Dismiss Court for will Lack adopt of in Subject its Matter entirety the Jurisdiction, Magistrate deny Judge’s 23 thoroughly documented recitation of the facts and historical background 24 of this action. 25 26 OBJECTIONS A. MAGISTRATE ERRED BY NOT STRIKING DEFENDANT’S RULE 56 FACTS 27 This argument is moot because the Magistrate Judge recommended that 28 the Court grant the Motion to Dismiss before addressing the Motion for 1 Summary Judgment. 2 12(b)(1), not Rule 56. 3 B. 4 This case will be dismissed pursuant to Fed.R.Civ.P. MAGISTRATE ERRED IN FINDING THE Rule 56 MOTION MOOT The Motion for Summary Judgment was rendered moot when the 5 Magistrate Judge determined to recommend granting the Motion to Dismiss. 6 When a motion to dismiss is based on more than one ground, the court 7 should consider the Rule 12(b)(1) challenge first because the other 8 grounds will become moot if the court lacks subject matter jurisdiction. 9 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, 10 §1350 (2004 ed.) 11 C. 12 MAGISTRATE ERRED IN FINDING NO PRIVATE STATE ANALOGUE The Magistrate Judge recommended that the Court grant the 13 Defendant’s Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1), finding 14 no private state analogue for governmental law enforcement actions. 15 The FTCA provides for governmental liability for negligent or 16 wrongful acts or omissions of a federal employee acting within the scope 17 of his or her employment “if a private person would be liable to the 18 claimant in accordance with the law of the place where the act or 19 omission occurred.” 20 United States shall be liable...relating to tort claims, in the same 21 manner and to the same extent as a private individual under like 22 circumstances,...”). The Supreme Court has noted that “[t]he broad and 23 just purpose which the statute was designed to effect was to compensate 24 the victims of negligence in the conduct of governmental activities in 25 circumstances like unto those in which a private person would be liable 26 and not leave just treatment to the caprice and legislative burden of 27 individual private laws.” 28 28 U.S.C. § 1346(b); see also 28 U.S.C. § 2674 (“The Indian Towing Co. v. United States, 350 U.S. -2- 1 61, 68 (1955); see also Rayonier Inc., v. United States, 352 U.S. 315 2 319-320 (1957)(“Congress, in adopting the FTCA, sought to prevent the 3 unfairness of allowing ‘the public as a whole’ to benefit ‘from the 4 services performed by Government employees,’ while allocating ‘the entire 5 burden’ of government employee negligence to the individual, ‘leav[ing] 6 him destitute or grievously harmed.’”). 7 The Magistrate Judge found that Plaintiffs conceded that there was 8 no private party analog to seeking a search warrant by a member of law 9 enforcement. The Magistrate Judge went on to find that “[o]ther courts 10 that have addressed this issue have held that the act of applying for a 11 search warrant has no analogous counterpart for private citizens and, 12 thus, 13 Washington v. Drug Enforcement Admin., 183 F.3d 868, 873 (8th Cir. 1999); 14 Wright, 963 F.Supp. at 16-17 (‘the discrete act of applying for such a 15 warrant is not reviewable under the FTCA.’)” (RR at 16.) 16 17 there is no liability under the FTCA for such action. See This objection is meritless. D. MAGISTRATE ERRED IN FINDING A DISCRETIONARY FUNCTION EXEMPTION 18 The Magistrate Judge also recommended granting the Defendant’s 19 Motion to Dismiss, finding that the discretionary function exemption 20 barred suit again the government in this instance. 21 The FTCA waives sovereign immunity for specified tort actions 22 arising out of the conduct of federal employees. 28 U.S.C. § 2674; 23 v. 24 however, is limited. 25 stem from a federal employee's exercise of a “discretionary function.” 26 28 U.S.C. § 2680(a). 27 exception bars a particular claim is resolved by applying a two-prong 28 United States, 140 F.3d 1238, 1241 (9th Cir. 1998). Fang That waiver, Id. Liability cannot be imposed if the tort claims The question whether the discretionary-function -3- 1 test. 2 challenged conduct is discretionary, that is, whether it “involv [es] an 3 element of judgment or choice.” Fang, 140 F.3d at 1241 (citing Berkovitz 4 v. 5 vaccines)). “This element is not met ‘when a federal statute, regulation 6 or policy specifically prescribes a course of action for an employee to 7 follow.’ ” 8 discretionary, the government is not immune. Id. For the first prong, it must be decided whether the United 9 States, 486 U.S. 531, 536 (1988)(inspection Id. (quoting Berkovitz, 486 U.S. at 536). of polio If the act is not Id. The second prong, if the challenged conduct is discretionary, it 10 “must be 11 discretionary function exception was designed to shield.” Berkovitz, 486 12 U.S. 13 considerations of social, economic, and political policy are excepted 14 from the FTCA by the discretionary function doctrine.” Sigman v. United 15 States, 217 F.3d 785, 793 (9th Cir. 16 second prong of the test is on ‘the nature of the actions taken and on 17 whether they are susceptible to policy analysis.’ ” Fang, 140 F.3d at 18 1241 (quoting United States v. Gaubert, 499 U.S. 315, 325(1991)(federal 19 savings and loan regulators)). 20 guideline allows a government agent to exercise discretion, it must be 21 presumed that the agent's acts are grounded in policy when exercising 22 that discretion.” 23 Cir.1993) (citing Gaubert, 499 U.S. at 324), cert. denied, 512 U.S. 1219 24 (1994). 25 at determined whether that judgment is of the kind that the 536. “Only those exercises of 2000). judgment involve “The primary focus of the “When a statute, regulation or agency Weissich v. United States, 4 F.3d 810, 814 (9th The discretionary function exception applies even if the conduct is 26 negligent or constitutes an abuse of discretion. 27 States, 28 which 346 U.S. 15, 33 (1953). -4- When the Dalehite v. discretionary United function 1 exception 2 application, it becomes a shield for carelessness and poor judgment. 3 National Union Fire v. 4 1997), cert.denied, 522 U.S. 1116 (1998). 5 8 9 10 11 12 13 14 15 16 17 20 21 22 23 24 25 it must be applied, even if, through United States, 115 F.3d 1415, 1422 (9th Cir. Based upon the information Agent Kelley had at the time, she made the determination to seek a search warrant for the Casillas residence. This decision “involves a judgement and a choice grounded in policy considerations regarding the enforcement of the criminal laws toward protecting the public safety.” Doherty, 905 F.Supp. at 56. Under the instant circumstances, the discretionary function exception applies to Plaintiffs’ claims of negligent surveillance and investigation. Moreover, given the exigency of the situation, Agent Kelley’s actions in obtaining the search warrant involving the overlooked errors in the SW affidavit necessarily fall within the discretionary function exception as well. See Gray v. Bell, 712 F.2d 490, 516 (D.C. Cir. 1983) (“We will not permit a suit for damages occasioned by activities that are not meaningfully separable from a protected discretionary function.”); see also Gasho, 39 F.3d at 1345 (“That the conduct of the agents may be tortious or motivated by something other than law enforcement is beside the point, as governmental immunity is preserved ‘whether or not the discretion involved be abused.’”)(citing 28 U.S.C. §2680(a)). 7 19 applicable, Here the Magistrate Judge found: 6 18 is (RR at 20-21.) Plaintiffs object to this finding because they contend that Agent Kelley acted in excess of her authority.1 Defendant responds: Agent Kelly was clearly working with tribal officers in connection with a crime that occurred on the reservation and that had moved off the reservation when the suspect fled to Tucson. There is no question that Agent Kelly had authority to investigate federal crimes on or off the reservation. She also was clearly within her authority to obtain a federal search warrant for a reservation crime within her investigative jurisdiction and to execute it on or off the reservation in accordance with the command in the warrant. There is no 26 1 27 28 Plaintiffs cite to Olson v. United States, 362 F.3d 1246 (2004), a case that has been vacated and remanded. Id. at 546 U.S. 43 (2005). -5- 1 testimony in the record that she “dispatched” the tribal officers to assist her, or that they were otherwise without authority as federal law enforcement officers to assist in the execution of the warrant. To the extent that Plaintiffs seek to allege that the tribal officers were not so authorized, then their conduct clearly falls within the assault, false imprisonment, and false arrest exception of the FTCA, and there can be no liability for their actions. The record is quite clear that when the tribal officers learned from Agent Kelly’s phone call that the warrant had been issued, they proceeded to execute the warrant and had completed the search by the time she arrived at the Plaintiffs’ residence. 2 3 4 5 6 7 (Response at 3-4.) 8 The Federal Tort Claims Act expressly excludes from its application 9 any claim based on an act or omission of a government employee, 10 exercising due care in the execution of a statute or regulation, whether 11 valid or not, or based on the exercise or performance, or the failure to 12 exercise or perform a discretionary function or duty on the part of a 13 federal agency or government employee, whether or not the discretion is 14 abused. United States v. Varig Airlines, 467 U.S. 797, 813 (1984); 15 Berkovitz, 486 U.S. at 536; Gaubert, 499 U.S. at 322-23; Alfrey v. 16 United States, 276 F.3d 557, 561 (9th Cir. 2002); 14 Fed. Prac. & Proc 17 Juris. 3d §3658.1 (2006); 35A Am. Jur.2d FTCA §34 (2007). 18 Based on a review of the record, there is no evidence to support the 19 claim that Agent Kelley was acting in excess of her authority. This 20 objection is overruled. 21 CONCLUSION 22 To dismiss claims or the action as a whole, this Court must resolve 23 that it lacks subject matter jurisdiction pursuant to Fed.R.Civ.P. 24 12(b)(1). When a Defendant challenges subject matter jurisdiction, the 25 Plaintiff bears the burden of establishing jurisdiction. Thomson v. 26 Gaskill, 315 U.S. 442 (1942); Tosco Corp. 27 28 -6- v. Communities for a Better 1 Env’t, 236 F.3d 495, 499 (9th Cir. 2 burden by a preponderance of the evidence. APWU v. Potter, 343 F.3d 619, 3 623 (2nd Cir. 4 matter jurisdiction attacks, the court will not presume that Plaintiff’s 5 factual allegations are true and will not accept conclusory allegations 6 as true, but may instead weigh the evidence before it and find the facts, 7 so long as this factfinding does not involve the merits of the dispute. 8 White v. 9 Const. 2003). 2001). The Plaintiff must carry this In the case of factual or substantive subject Lee, 227 F.3d 1214, 1242 (9th Cir. Co. v. 2000); Zappia Middle East Emirate Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000); 10 Nesbit v. 11 U.S. 959 (2004). The Court may receive and consider extrinsic evidence 12 and in doing so, is allowed broad discretion. 13 Worldwide, 328 F.3d 1136, 1141 n.5 (9th Cir. 2003). Gears Unl., 347 F.3d 72, 77 (3d Cir. 2003), cert. Warren v. denied, 541 Fox Family 14 The Court adopts the Magistrate Judge’s findings that there is no 15 private party analog to seeking or applying for a search warrant and the 16 Government is immune under the FTCA’s discretionary function exception 17 from Plaintiffs’ claims of negligence in investigation, surveillance, and 18 application for the search warrant. The discretionary function exception 19 also bars Plaintiffs’ claims of intentional torts occurring during 20 execution of the search warrant. 21 barred, the Court lacks federal subject matter jurisdiction. Because all of Plaintiffs’ claims are 22 Accordingly, after conducting a de novo review of the record, 23 IT IS ORDERED that the Report and Recommendation of Magistrate Judge 24 Estrada is ADOPTED in its entirety. 25 IT IS FURTHER ORDERED that Plaintiffs’ Motion to Strike Defendant’s 26 Pleadings in Support of Summary Judgment and Motion to Dismiss for 27 Failure to State a Claim (Doc. No. 32) are DENIED. 28 -7- 1 IT IS FURTHER ORDERED that Defendant's Motion to Dismiss for Lack 2 of Subject Matter Jurisdiction (Doc. No. 31) is GRANTED and Defendant’s 3 Motion for Summary Judgment (Doc. No. 31 ) is DENIED as moot. 4 5 6 IT IS FURTHER ORDERED that this action is DISMISSED and closed. The Clerk of this Court shall enter final judgment accordingly. DATED this 18th day of March, 2009. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-