Carcamo–Lopez v. Does

Decision Date02 September 2011
Docket NumberNo. EP–09–CV–371–KC.,EP–09–CV–371–KC.
Citation865 F.Supp.2d 736
PartiesMiriam Aide CARCAMO–LOPEZ, Plaintiff, v. DOES 1 THROUGH 20, inclusive, as Border Patrol Agents with United States Customs & Border Protection, Department of Homeland Security and in their individual capacities, and the United States of America, and Ricardo R. Montalvo Sued as a New Defendant and as Doe 1, Defendants.
CourtU.S. District Court — Western District of Texas


Gilbert R. Geilim, Gilbert R. Geilim, A Professional Law Corp., Van Nuys, CA, Martin Stanley, Law Offices of Martin Stanley, Santa Monica, CA, Randolph Joseph Ortega, Ellis & Ortega, El Paso, TX, for Plaintiff.

Magdalena G. Jara, Assistant U.S. Attorney, El Paso, TX, Clayton R. Diedrichs, U.S. Attorney's Office, San Antonio, TX, for Defendants.



On this day, the Court considered Defendant Ricardo R. Montalvo's (“Montalvo”) Motion for Summary Judgment (“Montalvo's Motion”), ECF No. 65, and the Government's Motion to Dismiss or, in the alternative, Motion for Summary Judgment (“Government's Motion”), ECF No. 66. For the reasons set forth below, Montalvo's Motion is GRANTED and the Government's Motion is GRANTED in part and DENIED in part.


The following facts are undisputed, except where otherwise noted.

On the night of February 2, 2008, Plaintiff was attempting to illegally cross the Rio Grande, which forms the international border between Ciudad Juarez, Mexico and El Paso, Texas. Def. Ricardo Montalvo's Proposed Undisputed Facts (“Montalvo's Facts”) ¶ 32, ECF No. 62. She was wearing a dark blue sweater and jeans, id. ¶ 30, and had agreed to attempt the crossing with two men who were also attempting to enter the United States illegally. Pl.'s Disputed Issues of Material Fact (“Plaintiff's Facts”) ¶ 1, ECF No. 73. At that time of year, the riverbed of the Rio Grande is virtually dry. Montalvo's Facts ¶ 3. Running alongside the river is a floodplain area known as the “vega.” Id. The vega has varying sizes of weeds and is scattered with small scrub trees. Id.

Plaintiff and her companions were attempting to cross the border at a point to the east of one of the bridges that leads to the international ports of entry on either side of the border. Id. Plaintiff contends they were attempting to cross twenty to twenty-five yards east of the bridge, so that lamps on the bridge illuminated the area. Pl.'s Resp. to Def. Montalvo's Proposed Undisputed Facts (“Plaintiff's Response to Montalvo's Facts”) ¶¶ 3–4, ECF No. 73. Defendants contend the crossing point was fifty-five yards east of the bridge, and the ambient lighting did not fully reach the vega, lighting some portions but casting shadows on others. Montalvo's Facts ¶ 4; Ricardo Montalvo Deposition (“Montalvo Deposition”) 65:9–14, ECF No. 65–3.

Plaintiff and her two companions had walked across the riverbed and were hidden in the brush on the edge of the riverbed, about to cross the vega. Pl.'s Facts ¶¶ 1–2. They were waiting for a Border Patrol vehicle, a Chevrolet Tahoe, to move from where it was stopped on a dirt road on the far side of the vega from them. Id. ¶ 1. Montalvo was driving the Border Patrol vehicle. Montalvo's Facts ¶ 5. Montalvo began driving east, away from Plaintiff and her companions, at which point they left their hiding place in the brush on the riverbank and began crossing the vega. Pl.'s Facts ¶ 2; Montalvo's Facts ¶ 27. While they were crossing the vega, Montalvo turned again and began driving west back towards his earlier position. Pl.'s Facts ¶ 5; Montalvo's Facts ¶ 6. Believing he had detected movement on the vega to his south, Montalvo stopped his vehicle and shined a spotlight in that direction. Montalvo's Facts ¶ 7.

While he was stopped, Plaintiff was positioned facing Montalvo in his vehicle, twenty meters away, with the vehicle's headlights shining in her direction. Pl.'s Facts ¶ 5. Plaintiff contends she was in a sandy, bare area of the vega, while Defendants allege the area was uneven and had significant brush. Id. ¶ 6; Montalvo's Objections to Pl.'s Resp. to Montalvo's Facts ¶ 6, ECF No. 89. Believing Montalvo had seen her, Plaintiff crouched on her knees and awaited Montalvo's instructions. Pl.'s Facts ¶¶ 6, 8. Plaintiff alleges Montalvo was stopped with his lights on her for seven to ten minutes. Id. ¶ 9; Miriam Aide Carcamo–Lopez Deposition (“Carcamo Deposition”) 188:24–25, ECF No. 65–2. Defendants contend he was only stopped for less than a minute. Montalvo Dep. 68:18–25. However long the time, after Montalvo had been stopped but had not given her any instructions or exited his vehicle to detain her, Plaintiff began to get scared and began to rise to her feet. Pl.'s Facts ¶ 9. At the same time, Montalvo began driving west towards her and, despite Plaintiff's attempts to avoid the vehicle, Montalvo drove over her with his back tires as he turned towards the south, beginning to turn his vehicle to the east once more. Id. ¶ 10; Montalvo's Facts ¶ 7; Montalvo Dep. 69:21–70:24.

As Montalvo turned south, he realized based on the illumination of the southern area of the vega with his headlights that the shadows he had seen with his spotlight were in fact Plaintiff's two companions, hiding in the brush and shadows. Montalvo's Facts ¶ 7. He stopped his vehicle and got out to pursue the two men, who were fleeing south towards the river and Mexico. Id. ¶ 9. At that point, he heard Plaintiff screaming from behind his truck, and walked back to investigate. Id. ¶ 10. He discovered Plaintiff lying on the ground. Id. Defendants contend Plaintiff was partially covered by brush and tumbleweeds, while Plaintiff denies this. Id.; Pl.'s Resp. to Montalvo's Facts ¶ 10. Montalvo asked Plaintiff what she was doing there, to which Plaintiff responded that Montalvo had just run her over. Montalvo's Facts ¶ 12.

Montalvo then reported the incident to his supervisor, who told Montalvo to contact El Paso's Emergency Medical Services. Id. ¶ 13. Because of the rough terrain and the difficulty of getting an ambulance to the scene of the accident without landmarks or a street address, Montalvo determined that it would be easier and faster to get Plaintiff medical care if he placed her in his vehicle and took her to meet the ambulance. Id. ¶¶ 13–14; Montalvo Dep. 108:14–109:5. So, he first backed his vehicle closer to where Plaintiff was lying on the ground. Montalvo's Facts ¶ 13. The parties dispute, however, exactly what Montalvo did to get Plaintiff into his vehicle. Plaintiff contends that Montalvo kicked her “with his feet, trying to get [her] to get up.” Carcamo Dep. 95:9–10. Defendants allege that Montalvo told Plaintiff that he needed to move her, she consented, and she cooperated in the endeavor by holding onto him and pulling herself into the vehicle. Montalvo's Facts ¶ 14; Montalvo Dep. 112:7–16. But all the parties agree that when he saw that she was unable to stand, Montalvo picked Plaintiff up by the torso and placed her upper body through one rear passenger door onto the backseat of his vehicle, with her legs still resting on the ground, then walked to the other rear passenger door and pulled Plaintiff the rest of the way into the vehicle. Pl.'s Facts ¶ 19. 1 Montalvo then drove Plaintiff across the vega and along a dirt road to meet the Emergency Medical Technicians (“EMTs”) on a paved road at a more accessible location. Id.; Montalvo's Objections to Pl.'s Resp. to Montalvo's Facts ¶ 18. From there the EMTs took Plaintiff to the hospital. Id.; Pl.'s Facts ¶ 19.

Plaintiff was hospitalized from February 2, 2008, until February 27, 2008, for her injuries. Id. ¶ 22. She has undergone three surgeries and has ongoing medical problems, including an inability to have sex, an inability to stand for long periods of time, and little bladder control. Id. ¶ 23.

Border Patrol Agents drive on the vega in order to pursue suspected aliens, or deter aliens from seeking to enter because of the Border Patrol Agents' mere presence. Kevin McCrary Deposition (“McCrary Deposition”) 40:18–41:1, ECF No. 65–5. Driving on the vega does present some risks, and Border Patrol Agents are given instruction on some of the risks, but are not told not to drive there. See id. 30:20–31:2; Montalvo Dep. 30:16–24, 38:21–24. The concerns include dangers to possible immigrants in the area, Montalvo Dep. 79:6–12, dangers to the agents from gunfire coming from across the border, id. 38:21–24, and potential damage to the agents' vehicles from the rough terrain. McCrary Dep. 31:3–9. However, despite the dangers, Border Patrol Agents commonly drive on the vega as part of their regular duties. Id. 31:12–24.

Plaintiff filed this action on October 9, 2009, asserting four causes of action against twenty unknown Border Patrol Agents and against the government directly. Compl., ECF No. 1. She subsequently amended her Complaint on July 30, 2010, substituting Montalvo for one of the unknown agents. First Am. Compl., ECF No. 18. At present, Plaintiff asserts a cause of action against Montalvo and nineteen other unknown Border Patrol Agents under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for violations of her Fourth and Fifth Amendment rights. Id. ¶¶ 19–24. She asserts one cause of action against the government under the Federal Tort Claims Act (“FTCA”) for assault and one for battery. Id. ¶¶ 25–34. Finally, she appears to assert a cause of negligence against Montalvo under state law and against the government under the FTCA. Id. ¶¶ 35–38.


Summary judgment is required “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 Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir.2008). “A fact is ‘material’ if its...

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