Coffey v. United States

• Decision Date: 02 May 2012
• Docket Number: No. CIV 08–0588 JB/LFG.,CIV 08–0588 JB/LFG.
• Citation: 870 F.Supp.2d 1202
• Parties: Diana COFFEY, on her own behalf and on behalf of the estate of Andrew Crutcher, deceased, and also, as next friend, on behalf of her minor grandchildren, Joanelle Crutcher, Rachelle Crutcher, Alex Benally, Andrew Crutcher, Vick Crutcher, Kitana Crutcher, and Drew Crutcher, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of New Mexico

870 F.Supp.2d 1202

Diana COFFEY, on her own behalf and on behalf of the estate of Andrew Crutcher, deceased, and also, as next friend, on behalf of her minor grandchildren, Joanelle Crutcher, Rachelle Crutcher, Alex Benally, Andrew Crutcher, Vick Crutcher, Kitana Crutcher, and Drew Crutcher, Plaintiffs,

v.UNITED STATES of America, Defendant.

No. CIV 08–0588 JB/LFG.

United States District Court,

D. New Mexico.

May 2, 2012.

Scott E. Borg, Barber & Borg, LLC, Albuquerque, NM, Robert R. Hager, Treva J. Hearne, Hager & Hearne, Reno, NV, for Plaintiff.

Kenneth J. Gonzales, United States Attorney, Jan Elizabeth Mitchell, Dori Ellen Richards, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant United States of America's Motion and Memorandum to Dismiss Plaintiffs' Errata Amended and Consolidated Complaint [Doc. No. 118] Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) or, in the Alternative, Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56, filed February 23, 2012 (Doc. 123)(“Motion”). The Court held a hearing on March 2, 2012. The primary issues are: (i) which States' law applies to the negligence/wrongful death claim and theories Plaintiff Diana Coffey has asserted against Defendant United States of America under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671–80, (“FTCA”); (ii) whether Coffey has met her burden to establish a waiver of sovereign immunity under the FTCA to invoke the Court's subject-matter jurisdiction; and (iii) whether the Court should permit Coffey to assert negligence/wrongful death theories beyond those the Court permitted her to include in her pleadings as stated in the Court's Memorandum Opinion and Order, filed November 14, 2011, 2011 WL 5826004 (Doc. 110)(“Nov. 14, 2011 MOO”). The Court will deny the Motion. The Court concludes that, applying FTCA conflicts-of-law principles and the applicable States' law, Arizona and Nevada would apply New Mexico law to Coffey's negligence/wrongful death claim and her respective theories. The Court concludes that there is a waiver of immunity under the FTCA against the United States, because New Mexico courts would recognize the appropriateness of liability of private individuals under like circumstances to those in this case. The Court will not permit Coffey to assert any negligence/wrongful death theories beyond those it permitted her to include in her pleadings as stated in the Court's Nov. 14, 2011 MOO. Lastly, the Court concludes that genuine issues of material fact preclude the entry of summary judgment.

FACTUAL BACKGROUND

Coffey disputes only one of the United States' asserted facts. Coffey does not include a section in her Opposition to Motion to Dismiss or in the Alternative Motion for Summary Judgment, see Doc. 127 (“Response”), where she sets forward any numbered or lettered asserted facts. See D.N.M.LR–Civ. 56.1 (“The Response must contain a concise statement of the material facts cited by the movant as to which the non-movant contends a genuine issue does exist. Each fact in dispute must be numbered....”). Both Coffey and the United States cite exhibits in the argument sections of filings without setting forth asserted facts that refer to those exhibits. Particularly, by not at least condensing their asserted facts in one section of their briefs, the parties have not provided the Court with a basis for determining whether they intend to put forward any asserted facts in relation to the exhibits they cite in the bodies of their filings. That practice violates D.N.M.LR–Civ. 56.1(b). The Court has already instructed Coffey in a previous Memorandum Opinion and Order to follow this local rule because otherwise the Court might not know which facts she intends to assert. SeeMemorandum Opinion and Order at 3, filed November 28, 2011, 2011 WL 6013611 (Doc. 113)(“Nov. 28, 2011 MOO”)(“In contravention of D.N.M.LR–Civ. 56[.1](b), Coffey has not attempted to distinguish between her facts that controvert McKinley County's facts and her additional material facts.”); id. at 3 (“The Court notes that Coffey has structured her facts in a way that makes them difficult to navigate and that it has expended a great deal of effort to organize and present these facts.”).

D.N.M.LR–Civ. 56.1(b) is designed to isolate the relevant facts and to present them in an orderly fashion to the Court, and when parties do not follow the procedures listed in this local rule, the Court may have difficulty properly determining what the relevant facts are. Furthermore, it is not the Court's responsibility to scour the parties' evidence and filings to determine what facts are in dispute and what facts will defeat a motion for summary judgment. See Gonzales v. City of Albuquerque, 849 F.Supp.2d 1123, 1161–62, No. 09–0520, 2011 WL 1114830, at *24 (D.N.M. Mar. 23, 2011) (“[I]t is not the Court's responsibility to scour the record for evidence to defeat [a] Motion for Summary Judgment....”); Hauff v. Petterson, 755 F.Supp.2d 1138, 1150 (D.N.M.2010) (Kelly, J.) (“Nor is it the court's function to ‘scour the record in search of evidence to defeat a motion for summary judgment.’ ” (quoting Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir.1996))). The Court will do its best to present the facts that the parties have set out in their factual sections of their briefs, or what appear to be the factual sections of their briefs, but may not be able to consider what may or may not be asserted facts set out in the argument section of the parties' filings. The Court can think of no sound basis to distinguish between what might be arguments and what might be asserted facts when parties include those matters in the argument section of their filings but not their factual sections of their filings.

In April 2006, Andrew Crutcher, a Native American, was tried in the Reno Sparks Indian Colony Tribal Court and convicted by a jury of discharging a firearm on the Reno Sparks Indian Colony in Nevada. See Motion ¶ 1, at 4 (setting forth this fact); Errata: Amended and Consolidated Complaint ¶ 11, at 4, filed February 1, 2012 (Doc. 118)(“Errata Complaint”); Response at 6–7 (not disputing this fact). In May 2006, Crutcher was sentenced to 365 days in jail for the weapons offense by the Reno Sparks Indian Colony Tribal Court and was committed into custody at an available detention facility, the Washoe County Jail, per a procurement contract with the Bureau of Indian Affairs (“BIA”). Motion ¶ 2, at 4 (setting forth this fact); Errata Complaint ¶ 19, at 4; Response at 6–7 (not disputing this fact).¹ On October 7, 2006, BIA employees transported Crutcher and a number of other inmates from the Washoe County Jail. See Motion ¶ 4, at 4 (setting forth this fact); Errata Complaint ¶ 23, at 5–6; Response at 6–7 (not disputing this fact). The BIA does not require by contract that detention facilities medically screen inmates within any particular timeframe or when an inmate is transferred. See Supplement to Opposition to USA's Motion for Summary Judgment at 2, filed April 10, 2012 (Doc. 136)(“Supplement”)(setting forth this fact); Deposition of Patricia Broken Leg Brill at 38:8–39:3, 48:12–49:7, 53:11–22, 55:1–19, 56:11–17 (taken Wednesday March 21, 2012), filed April 10, 2012 (Doc. 136–1) (“Brill Depo.”). BIA officials are not directed to pick up medical records for patients. See Supplement at 2 (setting forth this fact); Brill Depo. at 35:15–36:10. There is no requirement that BIA officials conduct medical screenings before transporting an inmate. See Supplement at 2 (setting forth this fact); Brill Depo. at 54:21–55:19. In Peach Springs, Arizona, Crutcher and some of the other inmates were transferred to the custody of officers from the McKinley County Detention Center (“MCDC”) and taken to Gallup, New Mexico, for incarceration at the MCDC. See Motion ¶ 4, at 4 (setting forth this fact); Errata Complaint ¶ 23, at 5–6; Response at 6–7 (not disputing this fact). BIA officials decided to transport Crutcher 900 miles from his home and primary doctor to save money on the cost of Crutcher's incarceration. See Response at 7–8 (setting forth this fact); Deposition of Vincente Anchando at 22:17–23:6, 23:19–25:9 (dated July 1, 2011), filed March 12, 2012 (Doc. 127–2); Reply at 3–4 (not disputing this fact).

Crutcher was incarcerated at the MCDC on October 8, 2006. See Motion ¶ 5, at 5 (setting forth this fact); Nov. 28, 2011 MOO at 4; Response at 6–7 (not disputing this fact). Crutcher seemed healthy at the time he was sent to the MCDC. See Motion ¶ 6, at 5 (setting forth this fact); Second Amended and Consolidated Complaint ¶ 21, at 5, filed July 28, 2011 (Doc. 61).²Crutcher was supposed to have the defibrillator³ attached to his body checked every three to four months and was on heart medication to avoid heart failure. See Response at 7 n. 10 (setting forth this fact); Deposition of Ram Challapalli, M.D. at 13:8–17 (dated April 5, 2011), filed March 7, 2012 (Doc. 127–3); Reply at 3–4 (not disputing this fact). The MCDC was a contract facility for detention pursuant to a contract between the BIA and MCDC. See Motion ¶ 7, at 5 (setting forth this fact); Errata Complaint ¶ 39, at 8; Response at 6–7 (not disputing this fact). After the transfer in Peach Springs on October 7, 2006 to the MCDC officers, BIA employees had no further contact with Crutcher. See Motion ¶ 8, at 5 (setting forth this fact); Response at 6–7 (not disputing this fact). On February 8, 2007, while incarcerated at the MCDC, an officer at this facility observed that Crutcher was ill and that he needed to be taken to the medical unit. See Motion ¶ 9, at 5 (setting forth this fact); Errata Complaint ¶ 42, at 9; Response at 6–7 (not disputing this fact). Crutcher was transported to the Gallup Indian Medical Center, where he died a few hours later. See Motion ¶...