Hernandez v. United States, Civil Case No. 12-cv-03165-LTB

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Writing for the CourtLEWIS T. BABCOCK
Decision Date28 February 2014
Docket NumberCivil Case No. 12-cv-03165-LTB


Civil Case No. 12-cv-03165-LTB


Dated: February 28, 2014



Babcock, J.

Plaintiff Marco A. Hernandez brings this action against the United States, the Transportation Security Administration ("TSA"), Nelson Padmin Guzman, Vicky L. Most, and Johhn Vidal (collectively the "Individual Defendants") based on events occurring as Plaintiff passed through airport security at Orlando International Airport on February 26, 2008, and December 13, 2009, and at Denver International Airport on October 9, 2009. [See Doc. # 13]. Plaintiff alleges in each of these instances that he was "subject to harassing interrogation, and unlawfully detained," which caused plaintiff to "suffer injuries, damages, and losses, including but not limited to pain and mental anguish, emotional distress, diminished enjoyment of life, embarrassment and other economic losses." [Doc. # 13 at ¶¶ 12, 52]. Plaintiff sues the United States and TSA under the Federal Tort Claims Act 28 U.S.C. §§ 1346(b), 2671-2680 ("FTCA"),

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for negligence, "false-arrest, assault, battery, false imprisonment, unlawful search, unlawful invasion of privacy, and intentional and negligent infliction of emotional distress," and sues the Individual Defendants for constitutional violations under the Fourth Amendment. [See Doc. # 13]. The United States and TSA have moved to dismiss, arguing that Plaintiff's claims are not authorized by the FTCA, that the United States and TSA have not waived immunity, Res Judicata, and that Plaintiff's claims do not state an adequate constitutional violation. [Doc. # 15]. Plaintiff filed a response in opposition to the motion (Doc. # 20), and Defendants filed a reply (Doc. # 21). For the following reasons, Plaintiff's Amended Complaint for Damages (Doc. # 13), is dismissed.


Plaintiff filed this action on December 4, 2012, alleging claims against Defendants, the United States, TSA, and the Individual Defendants. The background facts of the case are presented as they appear in Plaintiff's Second Amended Complaint (Doc. # 13) unless otherwise noted.

Plaintiff claims that he was "subject to unlawful detention, harassing, interrogation, embarrassment, and other torts . . .[on] at least" three occasions. [Doc. # 13 ¶ 26]. Plaintiff contends that these actions were "were undertaken because of the race and ethnicity" of Plaintiff. [Id. at ¶ 35]. Although Plaintiff alleges there were other instances of harassment, Plaintiff does not provide any factual allegations related to these alleged instances, thus they will not be addressed. [See id. at ¶ 34]. In 2008 and 2009, after being involved in a serious car accident which limited Plaintiff's ability to "stand for long periods of time," he traveled between Denver, Colorado, and Orlando, Florida on several occasions. [Id. at ¶ 27].

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Plaintiff alleges that the first instance of harassment occurred on February 26, 2008, when Plaintiff was traveling from Orlando, Florida to Denver, Colorado. [Id.] Upon arriving at the Orlando International Airport, Plaintiff checked in to his flight with United Airlines. [Id.] Plaintiff then proceeded to the TSA security checkpoint and, after observing that the regular security inspection line was "extremely long," and because he could not stand for long periods of time, Plaintiff proceeded to the handicap and wheelchair lane. [Id. at ¶ 28]. Plaintiff approached Individual Defendant Nelson Padmin Guzman, who was working the handicap and wheelchair access lane, and explained his need to use the entrance. [Id.] Individual Defendant Guzman commented that "he did not see anything wrong with [Plaintiff]." [Id.] Plaintiff offered to provide medical documentation proving his handicapped status, which Individual Defendant Guzman declined and instead requested Plaintiff's driver's license. [Id.] Individual Defendant Guzman then "wrote on [Plaintiff's] boarding pass that a secondary inspection was required . . . [and] stated that [Plaintiff's] driver's license was expired and asked for a second form of identification [d]espite the fact that the license was not expired." [Id.] Plaintiff complied with Individual Defendant's request and produced his valid United States passport. [Id.] Plaintiff was then permitted to proceeded through the airport screening process, including walking through a metal detector and removing his laptop and all other metal items for x-ray screening. [Id.] Upon walking through the metal detector, Plaintiff was greeting by another TSA Security Officer, A. Lipson and a supervisor for secondary inspection who confirmed that Plaintiff's driver's license was not expired. [Id.] After a second supervisor was called to the check point, Plaintiff was permitted to proceed through the security checkpoint. [Id. at ¶ 29].

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The second incident occurred the afternoon of October 9, 2009, at Denver International Airport. [Id. at ¶ 31]. On that date, Plaintiff was using post-operation crutches, and as he entered the TSA checkpoint, was asked by a TSA employee whether he could pass through the metal detector without his crutches. [Id.] Plaintiff responded that he could not. [Id.] Plaintiff proceeded to place his belongings on the belt for x-ray screening, including a 12 oz. bottle of water. [Id.] The TSA employee attempted to confiscate the bottle and Plaintiff protested, explaining that the water was necessary in order to take his prescribed medication. [Id.] The TSA employee explained that water was not permitted per security policy regarding allowable liquids and gels. [Id.] Plaintiff then requested that a supervisor be called, upon arrival another TSA employee insisted that the 12 oz. of water was not permitted. [Id.] Plaintiff then "asked to speak with the AFSD Assistant Security Director," and as he waited other TSA employees "became aggressive and [asked Plaintiff] to walk to a private screening room" without his left shoe. [Id.] Once in the private screening room, Plaintiff "provided identification identifying himself as a retired federal air marshal." [Id. at ¶ 32]. Supervisor, Vicky L. Most, advised the other TSA employees not to provide their names to Plaintiff. [Id.] This incident lasted 45 minutes to 1 hour, and Plaintiff missed his flight and was required to return to the airport the following day to travel to Florida. [Id.]

The third incident occurred on December 13, 2009, when Plaintiff arrived at the Orlando International Airport wearing a boot cast with several metal belt loops prescribed by his surgeon. [Id. at ¶ 33]. At the TSA security checkpoint, Plaintiff proceeded through the metal detector wearing the boot cast, which caused the metal detector to go off. [Id.] Plaintiff was then "properly escorted to another area to undergo a secondary screening . . . which consisted of a pat

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down search as well as a hand-held metal detector. The screening also consisted of a swab test of [Plaintiff's] boot cast." [Id.] After completion of the secondary screening, Individual Defendant Johnny Vidal asked Plaintiff if he could remove his boot cast. [Id.] Plaintiff "inquired as to Mr. Vidal's request and Mr. Vidal left the area to consult with a supervisor. After consulting with the supervisor Mr. Vidal returned and advised that the supervisor would not permit [Plaintiff] to enter the terminal unless [he] removed his boot cast to allow the screen to visually inspect the boot cast." [Id.] Plaintiff complied with the request and was permitted to leave the screening area. [Id.]


A. Fed. R. Civ. P. 12(b)(1)

Fed. R. Civ. P. 12(b)(1) empowers a court to dismiss a complaint for "lack of jurisdiction over the subject matter." Statutes conferring jurisdiction on federal courts are to be strictly construed. See F & S Constr. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). A Fed. R. Civ. P. 12(b)(1) motion to dismiss "must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction." Groundhog v. Keller, 442 F.2d 674, 677 (10th Cir. 1971). The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction. See Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). Once subject matter jurisdiction is challenged, the plaintiff bears the burden of proving it exists by a preponderance of the evidence. United States ex rel. Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir. 1999).

Motions to dismiss pursuant to Rule 12(b)(1) may take two forms. First, if a party attacks the facial sufficiency of the complaint, the court must accept the allegations of the

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complaint as true. See Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). Second, if a party attacks the factual assertions regarding subject-matter jurisdiction, the court may make its own findings of fact. Id. at 1003. A court's consideration of evidence outside the pleadings will not convert the motion to dismiss to a motion for summary judgment under Fed. R. Civ. P. 56. Id. (the "court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under...

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