Anson v. United States

• Decision Date: 22 March 2018
• Docket Number: 1:07–CV–00035 EAW
• Citation: 294 F.Supp.3d 144
• Parties: Donald James ANSON, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of New York

294 F.Supp.3d 144

Donald James ANSON, Plaintiff,

v.UNITED STATES of America, Defendant.

1:07–CV–00035 EAW

United States District Court, W.D. New York.

Signed March 22, 2018

Kristin A. Merrick, Stephen G. Schwarz, Faraci Lange LLP, Rochester, NY, for Plaintiff.

Kevin D. Robinson, Mary Pat Fleming, Kathryn L. Smith, U.S. Attorney's Office, Buffalo, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

PlaintiffDonald James Anson("Plaintiff") commenced this action on January 24, 2007, alleging a cause of action against the United States of America (the "Government") pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671 – 2680(the "FTCA").(Dkt. 1at 11).¹Subsequently, Plaintiff filed an Amended Complaint, which is the operative pleading in this action, increasing the amount of damages alleged from $75,000.00 to $125,000.00.(Dkt. 21at 11;seeDkt. 1at 11).Specifically, Plaintiff claims that on April 13, 2005, he was scheduled for transport from the Buffalo Federal Detention Facility (the "Facility") in Batavia, New York, where he was detained, to a court proceeding at the federal courthouse in Rochester, New York.(Dkt. 21at 6).The United States Marshals Service (the "USMS") was responsible for transporting Plaintiff.(Id. ).The USMS used a black 2001 Ford Expedition (the "Expedition" or the "Vehicle") for court transport.(Id. ).

Generally, the USMS deputies escorted prisoners into the Expedition through its rear passenger-side door.(Id. ).According to Plaintiff, on this occasion the USMS deputies told him to enter the Vehicle through the rear driver-side door so that they would avoid the inconvenience of having to reset a loose piece of weather stripping that hung over the rear passenger-side door.(Id. at 6–7).Plaintiff, who was handcuffed and secured by a waist chain and ankle shackles, alleges that he attempted to climb into the Vehicle through the rear driver-side door.(Seeid. at 7–8).

The Expedition's second-row seating contained a 70/30 foldable split-bench seat.(Id. at 7).Plaintiff alleges that in order for him to reach the third row via the rear driver-side door, the USMS deputies had to fold down the 70% portion of the split-bench seat (the "three-quarters seat"), and then Plaintiff had to climb over it.(Seeid. at 7–8).Had Plaintiff entered through the rear passenger-side door, the USMS deputies could have folded down the 30% portion of the split-bench seat (the "one-quarter seat") and rotated it forward to permit unimpeded walkable access to the third row.(Id. at 7).

Plaintiff alleges that as he began to climb over the three-quarters seat, his "right foot and/or leg chain [became] caught on the back of the folded down (but not slid [sic] forward) second row seat causing him to trip and fall."(Id. at 8).Plaintiff landed on his left elbow, which he claims caused him injury to his left shoulder, including a possible torn rotator cuff.(Id. ).Plaintiff claims that had the USMS deputies acted with reasonable diligence by resetting the loose weather stripping and directing him through the rear passenger-side door, he would not have had to climb over the three-quarters seat and would not have injured himself.(Id. ).

The most critical distinction between Plaintiff's account of the accident and the Government's version is Plaintiff's point of entry into the Vehicle.Whereas Plaintiff contends he was instructed to enter the Vehicle through the rear driver-side door, the Government maintains that Plaintiff, in fact, entered through the rear passenger-side door.After considering all of the evidence, the Court finds that Plaintiff has failed to carry his burden, by a preponderance of the evidence, that the Government was negligent in loading him into the Vehicle.This Decision and Order constitutes the Court's findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

PROCEDURAL BACKGROUND

Plaintiff commenced this action on January 24, 2007, by filing a pro se Complaint, alleging a cause of action pursuant to the FTCA.(Dkt. 1).Plaintiff filed an Amended Complaint, the operative pleading, on September 6, 2007.(Dkt. 21).On September 20, 2007, the Government filed a motion to dismiss for lack of subject matter jurisdiction.(Dkt. 22).Specifically, the Government argued that Plaintiff's claim fell within the "discretionary function" exception to FTCA liability.(Dkt. 23at 5–13).

On November 5, 2008, United States Magistrate Judge H. Kenneth Schroeder, Jr. recommended that the Government's motion be denied.(Dkt. 31).Judge Schroeder stated that in "[a]ccepting [P]laintiff's allegations as true,"he must conclude that the USMS "compromised [P]laintiff's safety to avoid pushing the loose weather-stripping back into place before closing the door," and that "such a decision would not be based upon considerations of public policy."(Id. at 7).As such, Judge Schroeder determined that Plaintiff's claims fell within the so-called "negligent guard" theory of liability, which precluded the application of the discretionary function exception.(Id. ).Neither the Government nor Plaintiff timely filed any objections, and, on November 28, 2008, United States District JudgeRichard J. Acara issued an Order adopting Judge Schroeder's Report and Recommendation.(Dkt. 32).On January 22, 2009, the Government filed an Answer to the Amended Complaint.(Dkt. 35).²

After discovery was completed, this case was reassigned to the undersigned for all further proceedings on January 30, 2015.(Dkt. 167).A bench trial commenced on August 21, 2017, and continued through August 23, 2017.(Dkt. 214;Dkt. 217).Prior to the commencement of the bench trial, the Government filed a motion in limine —which remains pending—seeking to limit the amount of damages Plaintiff could be awarded if he carried his burden of proof on liability.(Dkt. 206).

Following the bench trial, Plaintiff submitted proposed findings of fact and conclusions of law on December 18, 2017.(Dkt. 222).The Government submitted its responsive proposed findings of fact and conclusions of law on February 9, 2018.(Dkt. 224).Plaintiff submitted his reply papers on February 23, 2018.(Dkt. 227).

FINDINGS OF FACT

The following section constitutes the Court's Findings of Fact pursuant to Federal Rule of Civil Procedure 52(a)(1).The Court has made its Findings of Fact based on the testimony and exhibits presented at trial, and has discussed only those issues considered "material to the resolution of the parties' claims."Cliffstar Corp. v. Alpine Foods, LLC , No. 09-CV-00690-JJM, 2016 WL 2640342, at * 1(W.D.N.Y.May 10, 2016)(citingI.N.S. v. Bagamasbad , 429 U.S. 24, 25, 97 S.Ct. 200, 50 L.Ed.2d 190(1976)("[C]ourts ... are not required to make findings on issues the decision of which is unnecessary to the results they reach.")).Moreover, "the distinction between law and fact is anything but clear-cut" and therefore, "for purposes of appellate review, the labels of fact and law assigned" should not be considered controlling.Id.(quotation marks and citations omitted).

I.Burden of Proof

"In a civil case, the plaintiff bears the burden of proving the elements of his claim by a preponderance of the evidence."Brown v. Lindsay , Nos. 08–CV–351, 08–CV–2182, 2010 WL 1049571, at *12(E.D.N.Y.Mar. 19, 2010)."To establish a fact by a preponderance of the evidence means to prove that the fact is more likely true than not true."Id.(quotingFischl v. Armitage , 128 F.3d 50, 55(2d Cir.1997) )."Under the preponderance of the evidence standard, if the evidence is evenly balanced, the party with the burden of proof loses."Richardson v. Merritt , No. 12-CV-5753 (ARR), 2014 WL 2566904, at *5(E.D.N.Y.June 4, 2014)(citingKosakow v. New Rochelle Radiology Assocs. , 274 F.3d 706, 731(2d Cir.2001) ).In other words, if the credible evidence on a given issue is evenly divided between the parties—that it is equally probable that one side is right as it is that the other side is right—then the plaintiff has failed to meet his burden.

II.Undisputed Facts³

The parties stipulate that the claims subject to this litigation arose out of an incident occurring on April 13, 2005.On that date, Deputy United States Marshals Paul L. Nielsen, Jr.("Deputy Nielsen") and David L. Say, Jr.("Deputy Say")(collectively, "the Deputies"), secured Plaintiff at the Facility for transportation to a court appearance scheduled for 2:30 P.M. before United States Magistrate Judge Marian W. Payson at the United States District Court for the Western District of New York in Rochester, New York.Plaintiff was transported in the Expedition, which bore the license plate number "ATM 6209" and the VIN number "1FMPU16LB04315," and which was owned by the USMS.The parties also stipulate that the accident occurred at the Facility as Plaintiff, who was handcuffed and shackled at his ankles and waist, entered the Expedition.At the time of the accident, Deputy Say and Deputy Nielsen were present and were working within the scope of their employment.

III.Credibility

Resolution of the legal issues in this matter cannot be achieved without first making credibility determinations.Since Plaintiff was the only fact witness called to testify on his behalf, this case hinges upon the Court's assessment of Plaintiffs credibility.Although Deputy Nielsen's credibility was not left unscathed after the conclusion of cross-examination, the Court ultimately finds him to be a more credible witness than Plaintiff, and thus, credits his account of the accident.

A.Deputy Nielsen

It appeared evident to the Court that Deputy Nielsen's memory of the accident had dulled over the twelve years that had passed since its occurrence.Although Deputy Nielsen testified that Plaintiff proceeded through the rear passenger-side door (Dkt. 219 at 284:18–25, 285:1–9), he could not recall whether he or Deputy Say had lifted and rotated the...