Harter v. United States

Citation344 F.Supp.3d 1269
Decision Date26 September 2018
Docket NumberCase No. 2:17-CV-2398-JAR-GEB, Case No. 2:18-CV-2033-JAR-GEB
Parties Ruth M. HARTER, Individually and on Behalf of the Heirs to Clint Harter, Deceased, and Julie Nordman, Individually and as Heir to Randy Nordman, Deceased, Plaintiffs, v. UNITED STATES of America, et al., Defendants. Eric Scott Ryerson, by and Through His Guardian-Conservator, Janice G. Wilson, Plaintiff, v. United States of America, et al., Defendants.
CourtU.S. District Court — District of Kansas

Andrew Lyskowski, Bergmanis Law Firm, L.L.C, Camdenton, MO, Edward D. Robertson, III, Bartimus, Frickleton, and Robertson, Leawood, KS, Jill E. Harper, Harper, Evans, Wade & Netemeyer, Columbia, MO, John W. Kurtz, Hubbard & Kurtz, LLP, Kansas City, MO, for Plaintiffs.

Brian D. Sheern, Office of United States Attorney, Wichita, KS, for Defendants.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, CHIEF UNITED STATES DISTRICT JUDGE

In March 2016, Clint Harter, Austin Harter, and Randy Nordman were murdered by Pablo Serrano-Vitorino, an undocumented alien and felon. This crime occurred after the United States Immigration and Customs Enforcement Agency ("ICE") mistakenly sent a detainer to the Johnson County Sheriff's Office in September 2015 requesting that they keep Serrano-Vitorino in their custody pending ICE taking him into their custody for an immigration violation. But ICE made a life-altering mistake. They should have sent to the detainer to Overland Park Municipal Court ("OPMC"), which had custody of Serrano-Vitorino, not the Johnson County Sheriff's Office. Because OPMC did not receive a detainer from ICE, they released Serrano-Vitorino, and within months these three persons tragically lost their lives at the hands of Serrano-Vitorino.

Plaintiffs are the family members of the three decedents and bring these consolidated cases pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq. ("FTCA") against the United States, alleging that the United States is liable for the murders based on the negligence of ICE employees.1 Plaintiffs allege that ICE2 failed to perform mandatory duties under federal law and acted negligently under state law in failing to detain and deport Serrano-Vitorino.

Before the Court are the United States' Motions to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction (Docs. 13 and 23). The motions are fully briefed, the parties presented oral arguments on June 27, 2018, and the Court is prepared to rule. Whether the Court has subject matter jurisdiction under the FTCA depends upon whether ICE could be held liable under Kansas tort law in the same manner as a private person. As more fully explained below, while ICE may have made an error in executing its responsibilities under federal immigration law, the Court concludes that ICE's conduct has no private-party analog under Kansas law because ICE did not have the requisite "special relationship" with either the decedents or with Serrano-Vitorino that would have given rise to a duty to protect third parties from harm. The Court therefore grants the United States' motions to dismiss.

I. Standard of Review

"Federal Courts are courts of limited jurisdiction; they are empowered to hear only those cases authorized and defined in the Constitution which have been entrusted to them under a jurisdictional grant by Congress."3 "The party invoking federal jurisdiction bears the burden of establishing such jurisdiction as a threshold matter."4 The United States moves to dismiss this case pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction, arguing that the FTCA's waiver of sovereign immunity does not extend to Plaintiffs' claims.

Rule 12(b)(1) motions generally take two forms. First, a facial attack questions the sufficiency of the complaint's allegations as to subject matter jurisdiction.5 "In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true."6 Second, a factual attack goes beyond the complaint's allegations and challenges "the facts upon which subject matter jurisdiction depends."7 When reviewing a factual attack, "a district court may not assume the truthfulness of the complaint's factual allegations."8 Rather, "[a] court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)."9

"However, a court is required to convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion to dismiss or a Rule 56 summary judgment motion when resolution of the jurisdictional question is intertwined with the merits of the case."10 Under Tenth Circuit law, "[w]hen subject matter jurisdiction is dependent upon the same statute which provides the substantive claim in the case,"11 and where "the resolution of the jurisdictional question requires resolution of an aspect of the substantive claim,"12 the jurisdictional issue and the merits are considered intertwined.13

The significance of converting a Rule 12(b)(1) motion into a Rule 12(b)(6) or Rule 56 motion lies not in the manner in which the court considers the motion, but in the effect of the ruling on the parties:14

A dismissal under Rule 12(b)(1) is not on the merits, whereas a dismissal under either Rule 56 or Rule 12(b)(6) is on the merits. Thus, when jurisdictional questions are intertwined with the merits, courts have held that the decision on the jurisdictional question ought to operate as a decision on the merits. That is why a Rule 12(b)(1) motion should be converted to a Rule 56 or a Rule 12(b)(6) motion when intertwining exists.15

The United States argues that the Court lacks subject matter jurisdiction because the FTCA does not waive the United States' sovereign immunity for claims based on ICE's failure to adhere to federal immigration statutes. The question of whether the ICE conduct at issue is governed exclusively by federal law—or whether the United States could be held liable under Kansas law in the same manner as a private person—will "require[ ] resolution of an aspect of the substantive claim."16 Thus, the United States' Rule 12(b)(1) motion must be converted into a motion under either Rule 12(b)(6) or Rule 56. Although the United States has submitted a declaration in support of its motion,17 the Court need not consider that declaration in deciding whether Plaintiffs have alleged a legal duty under Kansas tort law, and converts the United States' motion into a motion to dismiss under Rule 12(b)(6).

To survive a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6), a complaint must contain factual allegations that, assumed to be true, "raise a right to relief above the speculative level"18 and must include "enough facts to state a claim for relief that is plausible on its face."19 Under this standard, "the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims."20 The plausibility standard does not require a showing of probability that "a defendant has acted unlawfully," but requires more than "a sheer possibility."21 "[M]ere ‘labels and conclusions,’ and ‘a formulaic recitation of the elements of a cause of action’ will not suffice; a plaintiff must offer specific factual allegations to support each claim."22 Finally, the court must accept the nonmoving party's factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.23

The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the court "must take all the factual allegations in the complaint as true, [but is] ‘not bound to accept as true a legal conclusion couched as a factual allegation.’ "24 Thus, the court must first determine if the allegations are factual and entitled to an assumption of truth, or merely legal conclusions that are not entitled to an assumption of truth.25 Second, the court must determine whether the factual allegations, when assumed true, "plausibly give rise to an entitlement to relief."26 "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."27

II. Factual Background

The following facts are alleged in Plaintiffs' Complaints and are assumed to be true for the purpose of deciding the United States' motions. Serrano-Vitorino, an undocumented alien, first faced criminal charges in the United States in 1998. In 2003, he was prosecuted on domestic-violence charges for an incident during which he pointed a rifle at the mother of his children. On March 23, 2003, Serrano-Vitorino was convicted of a felony and sentenced to two years in prison. He was deported after that prison term, but at some unknown time after his deportation, he re-entered the United States illegally.

In June 2014, Serrano-Vitorino was arrested again and charged with domestic battery for punching his brother in Wyandotte County, Kansas. Following that arrest, Wyandotte County officials notified ICE that Serrano-Vitorino was in custody. Plaintiffs contend that despite ICE policy requiring a face-to-face interview, no ICE official responded to the query and Wyandotte County officials had no choice but to release Serrano-Vitorino.

In November 2014, Serrano-Vitorino was arrested yet again, this time in Coffey County, Kansas for driving under the influence of alcohol, failure to produce a license, and speeding. In September 2015, he was pulled over by police in Overland Park, Kansas and cited for traffic offenses. Following that citation, "[h]e was fingerprinted at court and ICE sought to have him detained for an immigration violation."28 Plaintiffs allege that despite

knowing that Serrano-Vitorino was a violent offender in the country illegally, [ICE] failed to send the required paperwork to the Overland Park Police Department to keep
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