Gonzagowski v. United States

• Citation: 495 F.Supp.3d 1048
• Decision Date: 01 September 2020
• Docket Number: No. CIV 19-0206 JB\LF,CIV 19-0206 JB\LF
• Parties: Richard J. GONZAGOWSKI, Plaintiff, v. UNITED STATES of America; the Diamond Group a/k/a the J. Diamond Group, Inc.; and Sectek, Inc., Defendants.
• Court: U.S. District Court — District of New Mexico

495 F.Supp.3d 1048

Richard J. GONZAGOWSKI, Plaintiff,

v.UNITED STATES of America; the Diamond Group a/k/a the J. Diamond Group, Inc.; and Sectek, Inc., Defendants.

No. CIV 19-0206 JB\LF

United States District Court, D. New Mexico.

Filed September 1, 2020

Jerrald J. Roehl, Katherine C. Roehl, The Roehl Law Firm, P.C., Albuquerque, New Mexico, Attorneys for the Plaintiff.

John C. Anderson, United States Attorney, Roberto D. Ortega, Christopher F. Jeu, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for Defendant United States of America.

Ada B. Priest, Brian L. Shoemaker, David W. Frizzell, Elizabeth G. Perkins, Mitchell J. Freedman, Chapman and Priest, P.C., Albuquerque, New Mexico, Attorneys for Defendants the Diamond Group, Inc., and SecTek, Inc.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the United States’ Motion to Dismiss First Amended Complaint, or in the Alternative, Motion for Summary Judgment and Memorandum in Support, filed June 3, 2020 (Doc. 69)("Motion"). The Court held a hearing on June 24, 2020. See Clerk's Minutes at 1, filed June 24, 2020 (Doc. 79). The primary issues are: (i) whether Plaintiff Richard J. Gonzagowski timely filed his administrative claim with the appropriate federal agency as the Federal Tort Claims Act, 28 U.S.C. §§ 1291, 1346, 1402, 2401 - 02, 2411 - 12, 2671 - 80 ("FTCA"), requires; (ii) whether Gonzagowski's assault and battery claim against Defendant United States of America arises from an independent contractor's action, and so is barred under the FTCA; (iii) whether Gonzagowski exhausted his administrative remedies regarding his negligent hiring, training, and supervision claim against the United States; (iv) whether the FTCA's intentional tort exception bars Gonzagowski's assault and battery claim against the United States; and (v) whether the FTCA's discretionary function exception bars Gonzagowski's negligence claim against the United States. The Court concludes that: (i) Gonzagowski did not timely submit his administrative claim to the United States Department of Homeland Security, and he is not entitled to equitable tolling; (ii) Defendant the Diamond Group, Inc. is an independent contractor, and Gonzagowski's intentional tort claim against the United States arises from the Diamond Group's actions, and so is barred under the FTCA; (iii) Gonzagowski did not exhaust his administrative remedies regarding his negligence claim against the United States, because his administrative claim does not give the United States notice that he would assert such a claim; (iv) even if the Diamond Group's security officers are federal employees, the FTCA's intentional tort claim bars Gonzagowski's assault and battery claim against the United States, because the Diamond Group's security officers and not federal law enforcement officers; and (v) the FTCA's discretionary function exception bars Gonzagowski's negligent hiring, training, and supervision claim against the United States, because the United States’ hiring, training, and supervision of the Diamond Group are discretionary acts. Some of the Motion's arguments go to the merits of Gonzagowski's claims, and so the Court evaluates those arguments under the summary judgment standard and thus considers materials outside the pleadings in ruling on those arguments. Nonetheless, the Court concludes that it lacks subject-matter jurisdiction over Gonzagowski's claims against the United States. Accordingly, the Court grants the Motion and dismisses Gonzagowski's claims against the United States without prejudice. The Court retains subject-matter jurisdiction over Gonzagowski's remaining claims against Defendants the Diamond Group, Inc., and Sectek., Inc., because diversity jurisdiction is apparent from the Complaint's allegations.

FACTUAL BACKGROUND

The Court takes the facts from the parties’ undisputed material facts in the (i) the First Amended Complaint for Damages under the Federal Tort Claims Act for Compensatory Damages, filed April 1, 2019 (Doc. 7)("Complaint"); (ii) the Motion; and (iii) the Plaintiff's Response in Opposition to United States’ Motion to Dismiss First Amended Complaint, or in the Alternative, Motion for Summary Judgment, and Memorandum in Support, filed June 17, 2020 (Doc. 77)("Response"). The United States seeks, as an alternative to dismissal under rule 12(b)(1) of the Federal Rules of Civil Procedure, summary judgment under rule 56 of the Federal Rules of Civil Procedure. See Motion at 1-2. The Court concludes that the United States’ arguments regarding the FTCA's discretionary function exception and the Diamond Group's independent contractor status are intertwined with the case's merits, and so the Court resolves those issues under rule 56. See Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1129 (10th Cir. 1999). The Court addresses the remaining issues under rule 12(b)(1) ’s standard for factual attacks, and so considers materials outside the pleadings. See Franklin Sav. Corp. v. United States, 180 F.3d at 1129. The Court makes clear in this Opinion's Analysis section which standard it uses for each issue.

Gonzagowski is a citizen of the State of New Mexico.¹ See Complaint ¶ 5, at 2. The Diamond Group is a Texas corporation with headquarters in Dallas, Texas, and offices across the United States, including in Albuquerque, New Mexico.² See Complaint ¶ 7, at 2. The Diamond Group provides security services to the United States Social Security Administration.³ See Complaint 7, at 2. The Diamond Group is a wholly owned subsidiary of SecTek, a Virginia Corporation that controls the Diamond Group.⁴ See Complaint ¶ 8, at 2.

1. The Altercation at the Social Security Administration's Albuquerque Office.

On August 23, 2016, at approximately 12:00 p.m., Gonzagowski went to a United States Social Security Administration Office at 500 Lead Avenue SW, in Albuquerque.

See Motion ¶ 1, at 2 (citing Deposition of Richard Gonzagowski at 85:1-4 (taken December 20, 2019), filed June 3, 2020 (Doc. 69-2)("Gonzagowski Depo.")); Response ¶ A, at 2 (admitting this fact). While Gonzagowski waited, he used his cellular telephone to call Annabel Silva, a Social Security Administration "representative" who was "expecting papers from him." Motion ¶ 2, at 2. See Response ¶ A, at 2 (admitting this fact). As Gonzagowski spoke to Silva, he paced around the Social Security Administration office, a Diamond Group security guard "question[ed] him and shoved him." Motion ¶ 2, at 2 (citing Gonzagowski Depo. at 86:14-87:24). See Response ¶ A, at 2 (admitting this fact). That security guard is Steven Oglesby, a Protective Security Officer ("PSO" or "security officer") whom the Diamond Group employed. Motion ¶ 9, at 4 (citing Deposition of Steven Oglesby at 22:6-12 (taken January 2, 2020), filed June 3, 2020 (Doc. 69-3)("Oglesby Depo.")); Response ¶ A, at 2 (admitting this fact).

Oglesby asked Gonzagowski to end his telephone call and to sit. See Motion ¶ 10, at 4 (citing Oglesby Depo. at 286:16-31:7); Response ¶ A, at 2 (admitting this fact). Gonzagowski asked Oglesby "if there was a problem." Motion ¶ 2, at 2 (citing Gonzagowski Depo. at 86:14-87:24). See Response ¶ A, at 2 (admitting this fact). This exchange grew "heated" and drew two other PSOs’ attention, who then "accosted" Gonzagowski and tried "to take him down to the floor." Motion ¶ 3, at 2 (citing Gonzagowski Depo. at 87:25-88:6). See Response ¶ A, at 2 (not disputing this fact). The two other PSOs are Anthony Molina and Aaron Villancourt. See Motion ¶ 12, at 4 (citing Oglesby Depo. at 24:15-20); Response ¶ A, at 2 (admitting this fact). Molina and Villancourt work for the Diamond Group. See Motion ¶ 11, at 4 (citing Oglesby Depo. at 24:15-23); Response ¶ A, at 2 (admitting this fact).

Shortly after the altercation, United States Federal Protective Service Inspector Jose Carrillo, at Oglesby's request, arrived at the Social Security Administration office "to investigate." Motion ¶ 5, at 3 (citing Gonzagowski Depo. at 102:3-20). SEe Response ¶ A, at 2 (admitting this fact).⁵ Carrillo did not assault Gonzagowski or take part in the altercation. See Motion ¶ 13, at 4 (citing Oglesby Depo. at 25:12-17; id. at 138:5-139-10); Response ¶ A, at 2 (admitting this fact). Each of the PSOs involved in the altercation were the Diamond Group's employees. See Motion ¶ 5, at 3 (asserting this fact); Response ¶ A, at 2 (admitting this fact).⁶ Gonzagowski was treated medically that night, and sustained injuries to his neck, shoulder, and head in the altercation. See Motion ¶ 6, at 4 (citing Gonzagowski Depo. at 113:7-19); Response ¶ A, at 2 (admitting this fact).

2. The PSOs’ Relationship With the Diamond Group and the United States.

The Diamond Group employs each of the security guards involved in the altercation; none of the security guards that "beat ... up" Gonzagowski is a federal employee. See Motion ¶ 7, at 4 (citing Gonzagowski Depo. at 201:9-202:12; id. at 231:7-12); Response ¶ A, at 2 (admitting this fact). Oglesby, Molina, and Villancourt's supervisors are Sergeant Dennis Barneys and Captain Patrick Stephens. See Motion ¶ 15, at 5 (citing Oglesby Depo. at 14:25-15:9); Response ¶ B, at 2 (not disputing this fact). Barneys and Stephens work for the Diamond Group. See Motion ¶ 15, at 5 (citing Oglesby Depo. at 14:25-15:9).⁷

The Diamond Group set Oglesby's work hours. See Motion ¶ 17, at 5 (citing Oglesby Depo. at 148:3-21); Response ¶ C, at 2 (admitting this fact). The Diamond Group processed Oglesby, Molina, and Betancourt's paychecks and social security taxes, and is responsible for maintaining its own liability insurance. See Motion ¶ 18, at 5 (citing Oglesby Depo. at 149:5-24); Response ¶ C, at 2 (admitting this fact). The Diamond Group trained Oglesby, Molina, and Betancourt in firearm use and defensive tactics. See Motion ¶ 18, at 5 (citing Oglesby Depo. at 168:9:22).⁸ The...