Dalrymple v. United States, 05-14375.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation460 F.3d 1318
Docket NumberNo. 05-14375.,05-14375.
PartiesDonato DALRYMPLE, Hector S. Abelairas, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
Decision Date16 August 2006

Page 1318

460 F.3d 1318
Donato DALRYMPLE, Hector S. Abelairas, et al., Plaintiffs-Appellants,
v.
UNITED STATES of America, Defendant-Appellee.
No. 05-14375.
United States Court of Appeals, Eleventh Circuit.
August 16, 2006.

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Paul J. Orfanedes, Dale L. Wilcox, Meredith L. Di Liberto, Judicial Watch, Inc., Washington, DC, for Plaintiffs-Appellants.

Michael S. Raab, Barbara L. Herwig, Mark R. Freeman, U.S. Dept. of Justice, Civ. Div., Appellate Staff, Washington, DC, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before DUBINA and KRAVITCH, Circuit Judges, and MILLS,* District Judge.

DUBINA, Circuit Judge:


This case arises from the execution of search and administrative warrants by Immigration and Naturalization Service ("INS") agents authorizing the removal of Elian Gonzalez ("Elian") from his great-uncle's home in Miami on April 22, 2000. Appellants, individuals that were present during the execution of the warrants, filed a complaint pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq., against the United States ("the government"), seeking damages for injuries caused by the INS agents' use of force during the search. Appellants Mirtha Maria Falcon and her two minor children, Antonio Ortega and Yuliet Colon, and appellants Alexei Torres, Angela Taina Toro, and Carlos R. Zayas (referred to collectively as the "dismissed plaintiffs") challenge the district court's order dismissing their claims for lack of subject matter jurisdiction.1 The remaining appellants challenge the district court's finding that, as a matter of law, the agents' actions were objectively reasonable under the circumstances. For the reasons discussed below, we affirm the district court's final judgment.

I. BACKGROUND

On November 25, 1999, officials found Elian, a six-year-old Cuban boy, floating on an inner-tube off the coast of Fort Lauderdale, Florida. The INS paroled Elian into the United States and released him into the custody of his great-uncle,

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Lazaro Gonzalez ("Gonzalez"). Elian and Gonzalez, on Elian's behalf, filed petitions with the INS seeking political asylum. Shortly thereafter, Elian's father, a Cuban citizen, requested that Elian be returned to Cuba. The INS determined that the petitions for asylum were legally void and refused to consider their merit.2 The INS then revoked Gonzalez's custody of Elian. After Gonzalez's refused to surrender Elian, the INS issued an administrative warrant for Elian and obtained a search warrant to enter Gonzalez's home. The INS agents executed the search and administrative warrants at approximately 5:15 a.m. on Saturday, April 22, 2000.

Appellants are individuals who were either on Gonzalez's property, neighbors of Gonzalez, demonstrators that were either behind a barricade or advancing towards Gonzalez's property, or other bystanders near Gonzalez's property at the time the agents executed the warrants. They brought this action against the government based on the government's use of gas during the execution of the warrants. Appellants allege that during the execution of the warrants a federal agent, using an Israeli gas gun, indiscriminately sprayed gas and "shouted obscenities, pointed guns and/or threatened to shoot, beat, kicked and punched neighborhood residents, passers-by and persons who had assembled peacefully outside the [Gonzalez] home." (R. Vol. 2, Folder 1, Doc. 71 at 25.) According to the appellants, an agent sprayed some of them "directly in the face, at point blank range," with the gas gun. (Id. at 78.) Based on these allegations, the appellants filed suit against the government under the FTCA for assault and battery, false imprisonment, intentional and negligent infliction of emotional distress, and negligence.

Prior to filing suit in federal court, each appellant filed an administrative claim, or a Standard Form 95 ("SF-95"),3 with the United States Department of Justice ("Department"). The claims were filed on April 22, 2002, exactly two years from the day the appellants' claims accrued. The appellants attached to each SF-95 a copy of the amended complaint filed in an earlier case, Dalrymple v. Reno, 164 F.Supp.2d 1364 (S.D.Fla.2001), in which fifty-two plaintiffs demanded $100 million in damages for constitutional violations arising from the execution of the warrants to obtain custody of Elian.4 On the SF-95 there is a space to insert a sum certain sought by the claimant. All of the SF-95s submitted by the appellants contained a sum certain of $250,000 except for the SF-95s submitted by the dismissed plaintiffs, who failed to insert any sought amount on their SF-95s.

After the government failed to respond to all of the appellants' administrative claims within the prescribed six-month time period, the appellants properly filed their claims under the FTCA in federal court. The government filed a motion to dismiss the claims of the appellants who failed to provide a sum certain in their administrative claims, arguing that the district

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court lacked jurisdiction because they failed to meet the statutory prerequisite for filing suit. The district court adopted the magistrate's report and recommendation and dismissed those appellants' claims for lack of jurisdiction, finding that they failed to meet the statutory prerequisite of providing a sum certain.

The district court granted summary judgment in favor of the government as to the majority of the remaining appellants (referred to collectively as "the summary judgment plaintiffs") after discovery and based upon the magistrate judge's report and recommendation, finding that the government's use of either tear gas or pepper spray was a reasonable use of force and was privileged under Florida state law. Relying on "[t]he undisputed evidence in the record" which "establishe[d] that many protestors sought to interfere with the INS officers' ability to execute the warrants and remove Elian Gonzalez from the Gonzalez home," by throwing objects such as a stool, rocks, and bottles at the agents, the district court concluded that the agents' use of force was objectively reasonable and did not give rise to the summary judgment plaintiffs' alleged tortious causes of action under the FTCA.

The district court denied the government's motion for summary judgment as to the assault and battery and intentional infliction of emotional distress claims of the remaining appellants who were allegedly not on the Gonzalez's property, were not advancing towards the agents or the Gonzalez's property, and who were gassed at a close range either behind the barricade or on their own property (collectively referred to as the "trial plaintiffs").5 The district court concluded that there was a question of fact as to whether the use of gas as to the trial plaintiffs was objectively reasonable. After a six-day bench trial, the district court entered judgment in favor of the government as to the trial plaintiffs' claims, finding that they failed to establish by a preponderance of credible evidence that the use of force was unreasonable under the circumstances. The district court found that the deployment of the gas gun was in response to the demonstrators' threats and that the agent was 10 to 15 feet away from the demonstrators when he deployed the gun. The district court's findings of fact were supported by videotape evidence which corroborated the agents' testimony regarding the circumstances surrounding the execution of the warrants.

Because the district court found that the trial plaintiffs failed to prove that the circumstances under which they were exposed to gas was different from the circumstances surrounding the use of gas against the summary judgment plaintiffs, the district court relied on its earlier holding that, as a matter of law, the use of either tear gas or pepper spray was objectively reasonable under the circumstances. Thus, the agents' use of gas did not support the trial plaintiffs' assault and battery and intentional infliction of emotional distress claims under the FTCA. Accordingly, the district court entered final judgment in favor of the government. Appellants then perfected this appeal.

II. ISSUES

Appellants present two issues for appellate review: (1) whether the district court erred in dismissing the dismissed plaintiffs' claims for lack of subject matter jurisdiction

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on the basis that they failed to satisfy the statutory prerequisite of providing a sum certain in their administrative claims before filing suit against the government under the FTCA; and (2) whether, as to the remaining appellants, the district court erred in finding that, as a matter of law, the agents' use of tear gas during the execution of the warrants was objectively reasonable under the circumstances because it violated the INS's policies and procedures.

III. STANDARDS OF REVIEW

We review de novo the district court's order granting a motion to dismiss for lack of subject matter jurisdiction. Broward Gardens Tenants Ass'n v. United States EPA, 311 F.3d 1066, 1072 (11th Cir.2002). We review a district court's grant of summary judgment de novo. McCormick v. City of Ft. Lauderdale, 333 F.3d 1234, 1242-43 (11th Cir.2003). "We review a district court's legal conclusion de novo and its fact findings for clear error." Cohen v. United States, 151 F.3d 1338, 1340 (11th Cir.1998).

IV. DISCUSSION

A. Lack of Jurisdiction

The FTCA provides a limited waiver of the United States' sovereign immunity for tort claims. Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir.1994). "It allows the government to be sued by certain...

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