Hernandez v. Causey
| Decision Date | 29 September 2022 |
| Docket Number | Civil Action 2:17-cv-123-TBM-MTP |
| Parties | GABINO RAMOS HERNANDEZ PLAINTIFF v. PHILLIP CAUSEY and THE UNITED STATES OF AMERICA DEFENDANTS |
| Court | U.S. District Court — Southern District of Mississippi |
On the evening of July 16, 2016, Immigration and Customs Enforcement (“ICE”) Officer Phillip Causey was called to Gabino Ramos Hernandez's home to allegedly assist with translation services for an unrelated traffic stop. Hernandez was standing in the garage when the ICE van arrived, and upon seeing the van, Hernandez ran away. Two ICE agents, including Phillip Causey, chased Hernandez. Hernandez stopped running and, in the light most favorable to Hernandez, had his hands raised when Causey shot him. Now before the Court is the United States' Motion to Dismiss [120] Hernandez's tortious supervision and training claim and partial motion to dismiss Hernandez's claim for negligent use of deadly force, and Causey's Motion for Reconsideration [129] of the Court's Opinion [89] denying his Motion for Summary Judgment. For the reasons discussed fully below, the United States' Motion to Dismiss [120] is granted and Causey's Motion for Reconsideration [129] is granted.
Hernandez filed suit in this Court on July 20, 2017. He argues that Causey violated his Fourth, Fifth, and Fourteenth Amendment rights to be free from an unreasonable and excessive use of deadly force pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Hernandez also asserts three separate causes of action against the United States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b): 1) use of deadly force; 2) assault and battery; and 3) negligent training and supervision.
On August 31, 2018, this Court stayed the case because Causey was deployed overseas on active military duty.[1] After Causey completed his deployment, the Defendants filed a combined Partial Motion to Dismiss [68] for lack of subject matter jurisdiction as to the negligent training and supervision claim under the FTCA and a Motion for Summary Judgment [68] as to the other claims. In its Memorandum Opinion and Order [89], this Court first addressed Hernandez's negligent training and supervision claim and dismissed it without prejudice for failure to state a claim.[2] This Court found that by failing to plead a constitutional violation Hernandez did not meet the minimum pleading requirements to withstand dismissal under the discretionary function exception to the FTCA. Despite failing to meet his burden, the Court allowed Hernandez to file an amended complaint alleging a proper constitutional violation.
This Court then turned to Causey's Motion for Summary Judgment. Despite well-established Supreme Court precedent holding that the Bivens question is “antecedent” to the question of qualified immunity, Causey provided no briefing and made no objection as to whether Hernandez could bring suit under the Bivens framework for a Fourth Amendment excessive force claim. Hernandez v. Mesa, ___ U.S.___, 137 S.Ct. 2003, 2006, 198 L.Ed.2d 625 (2017) (Hernandez I). Even after Hernandez analyzed the Bivens question in his Response in Opposition to Causey's Motion for Summary Judgment, Causey still raised no objection to the validity of Hernandez's claims under Bivens. Accordingly, the Court addressed the Bivens question sua sponte and found Hernandez's Bivens claim against Causey was the kind of Fourth Amendment search-and-seizure case that courts have adjudicated through Bivens actions. [89], pg. 13. After determining that Hernandez's Bivens claim did not present a “new context,” the Court found a genuine issue of material fact as to where Hernandez's hands were positioned at the time of the shooting and denied Causey's Motion for Summary Judgment on the basis of qualified immunity.
Following the dismissal of Hernandez's negligent training and supervision claim, Hernandez filed an Amended Complaint [106] alleging that the United States is liable for the “tort[i]ous and wrongful supervision and instruction of Phillip Causey and other deportation agents involved in Plaintiff's shooting, in direct contravention of the Plaintiff's Fourth Amendment rights.” [106], ¶ XXXVII. Hernandez asserts that ICE supervisors instructed Causey to conduct unreasonable seizures “based solely on a person's Mexican or Hispanic ancestry,” by assisting local police officers with pretextual requests for translation services. Id.
Now before the Court is the United States' renewed Motion to Dismiss [120] Hernandez's tortious supervision and training claim and partial motion to dismiss Hernandez's claim for negligent use of deadly force. Causey has also filed a Motion for Reconsideration [129] of the Court's Opinion [89] denying his Motion for Summary Judgment based on the Supreme Court's ruling in Egbert v. Boule, 142 S.Ct. 1793, 1803 (2022).[3] Hernandez does not argue that Casey waived reconsideration of the Bivens issue by not addressing it previously. For the reasons discussed fully below, the United States' Motion to Dismiss [120] is granted and Causey's Motion for Reconsideration [129] is granted. Specifically, this Court lacks subject matter jurisdiction over Hernandez's tortious training and supervision claim because it is barred by the discretionary function exception of the FTCA. Additionally, Hernandez fails to state claim for the use of deadly force asserted against the United States with respect to conduct by any ICE agent other than Causey. Finally, Hernandez's Fourth Amendment claim presents a new context under Bivens, and since special factors counsel hesitation in extending the Bivens remedy to this context, this Court cannot find a Bivens remedy.
In his Amended Complaint, Hernandez asserts a tortious and wrongful training and supervision claim against the United States alleging that “[n]ot withstanding the prohibition of the Fourth Amendment against unreasonable seizures based solely on race . . . ICE supervisors allowed, encouraged and instructed Phillip Causey . . . to stop and question any Hispanic who might be stopped by a local police officer under a pretextual request for assistance with Spanish,” without reasonable suspicion. [106], ¶ XXXVIII. The United States argues that Hernandez's tortious training and supervision claim must be dismissed for lack of subject matter jurisdiction because Hernandez's claim is barred by the discretionary function exception of the FTCA. Specifically, the United States argues that Hernandez cannot escape the discretionary function exception to the FTCA by “couching his claim in terms of a constitutional violation.” [112], pg. 1. In his Response, Hernandez asserts that his tortious training and supervision claim is not barred by the discretionary function exception because government officials have no discretion to violate the constitution. The question before the Court, then, is whether an alleged constitutional violation-rather than a statutory, regulatory, or policy violation-precludes the application of the discretionary function exception.
“Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to challenge the subject matter jurisdiction of the district court to hear a case.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). A court may find lack of subject matter jurisdiction “on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996) (citation omitted). “[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Wells v. Ali, 304 Fed. App'x 292, 293 (5th Cir. 2008) (citation omitted). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Ramming, 281 F.3d at 161.
“Courts consider whether the FTCA applies via a Rule 12(b)(1) motion because whether the government has waived its sovereign immunity goes to the court's subject matter jurisdiction.” Campos v. United States, 888 F.3d 724, 730 (5th Cir. 2018) (citation omitted). “Sovereign immunity protects the federal government from being sued without its consent.” Doe v. United States, 831 F.3d 309, 319 (5th Cir. 2016) (citation omitted). It is well established that Congress has waived the sovereign immunity of the United States by giving courts jurisdiction over certain torts committed by government employees under the FTCA. 28 U.S.C. § 1346(b).
The FTCA provides consent for suit against the United States “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). The FTCA was “designed to afford easy and simple access to the federal courts for persons injured by the activities of government without the need to resort to private bills for the purpose of obtaining compensation.” Sutton v. United States, 819 F.2d 1289, 1292 (5th Cir. 1987) (internal quotations omitted) (quoting Collins v. United States, 783 F.2d 1225, 1233 (...
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