Hunter v. United States

Decision Date12 December 2019
Docket NumberCIVIL ACTION NO. 17-00616
CourtU.S. District Court — Middle District of Louisiana




Before the Court are two motions filed by Defendant, the United States of America ("Defendant"). The first motion is a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). See Record Document 31. The second motion is a Motion for Summary Judgment. See Record Document 30. Plaintiff Summer Hunter ("Hunter" or "Plaintiff") opposes both motions. See Record Documents 34 & 57. For the following reasons, Defendant's Motion to Dismiss is GRANTED and Defendant's Motion for Summary Judgment is also GRANTED.


This matter arises out of the execution of an arrest warrant by the United States Marshal Service ("USMS") Fugitive Task Force ("Task Force"). On July 29, 2015, the Task Force sought to arrest Lawrence Blackburn ("Blackburn") who was wanted for first degree murder that left one person dead and another in "grave condition." Record Document 57-3 at 29; see also Record Document 1 at 2. After receiving information that Blackburn was visiting a relative in a Baton Rouge apartment complex, United States Marshal Brian Lucio ("Lucio") developed an operational plan. See Record Document 1 at 2. The plan included five United States Marshals—Brian Benton ("Benton"), Clayton McDonough ("McDonough"), Shawn Delaney ("Delaney"), John Barker ("Barker"), and David Grunewald ("Grunewald")—and 15 to 20 local law enforcement officers from the East Baton Rouge Parish Sheriff's Office ("EBRSO") and the Baton Rouge Police Department ("BRPD"). See Record Document 31-1 at 2. Benton served as the team leader and was authorized to modify or change the operational plan as needed. See id. at 3; see also Record Document 57-3 at 80.

The plan was to send Delaney and Grunewald ahead of the others to establish a perimeter around the apartment complex to prevent Blackburn's escape. See Record Document 31-1 at 5; see also Record Document 57-3 at 34. The remaining law enforcement officers were to travel in a column formation with the EBRSO and BRPD leading and the Task Force members following behind. See Record Document 31-1 at 5. Upon arrival at the apartment complex, the local law enforcement officers were responsible for securing the area. See id. Once the perimeter was secure, the Task Force would attempt to contact Blackburn "through any means without breaching the apartment in order to get him to surrender." Id. at 6; see also Record Document 57-3 at 59. These attempts included contacting Blackburn via cell phone or using the public address system in the law enforcement vehicles. See Record Document 31-3 at 6. Ultimately, if contact could not be made without breaching the apartment, BRPD would enter the apartment with the Task Force securing the perimeter. See id.

The mission was going according to plan until the EBRSO and BRPD officers leading the column formation to the apartment complex made a wrong turn. See id. at 7; see also Record Document 57-4 at 46-47. With no radio communication between the Task Force vehicles and EBRSO and BRPD, the Task Force broke off from the column and drove to the apartment complex. See Record Document 31-1 at 7. At this point, Benton decided to deviate from the operational plan because the Task Force no longerhad the assistance of EBRSO and BRPD to secure the perimeter. See id. Furthermore, Benton was concerned Blackburn would escape if the Task Force did not immediately secure the designated apartment. See Record Document 57-4 at 49.

Upon arrival at the apartment complex, Benton and Barker went directly to the designated apartment located on the second floor—Apartment 6—positioning themselves side-by-side on the balcony, but short of the apartment's window. See Record Document 31-1 at 7; see also Record Document 57-5 at 26. Grunewald was on the opposite side of Apartment 6, facing Benton and Barker. See Record Document 30-2 at 3. Delaney moved from the perimeter to the first floor of the apartment building, eventually positioning himself directly below Apartment 6. See Record Document 30-2 at 2.

Once the Task Force was in position, Benton knocked on the apartment's window, announcing their presence and directing everyone out of the apartment. See id. at 3; see also Document 57-4 at 64. Erica Blackburn and her boyfriend quickly complied with Benton's commands and were taken to the side of the building with McDonough. See Record Document 30-2 at 3. Hunter and Blackburn remained in the apartment. See id. While in the apartment, Hunter glanced back at Blackburn "trying to put his shoe on with a gun." Record Document 30-11 at 2. After a few minutes, Hunter and Blackburn exited the apartment. See Record Document 30-11 at 5. Hunter was "screaming" and failed to obey the Task Force's commands. Record Document 57-4 at 67-68. Blackburn followed soon thereafter and stood directly behind Hunter. See id. at 68-69.

The remaining events are in dispute; however, both parties agree that Blackburn had a gun in his right hand that was pointed downward as he exited the apartment and stood directly behind Hunter. See Record Documents 30-1 & 57-1. Benton and Barkerboth testify that they saw Blackburn raise his arm towards them and point a gun in their direction. See Record Document 57-5 at 29, 64; see also Record Document 57-4 at 69-70. Delaney testifies that he observed Hunter fall in the direction where Blackburn's gun was oriented. See Record Document 57-6 at 55. Benton testifies he then took cover while Barker fired his weapon. See Record Document 57-4 at 70. Delaney then attests that he had a clear shot of Blackburn once Hunter has fallen, and at that point Delaney fired his gun at Blackburn. See Record Document 57-6 at 57-58. The gunfire lasted only a "matter of seconds," during which Hunter was shot in the back of her right calf. Record Document 57-6 at 62; see also Record Document 1 at 3.

Hunter brought the instant suit under the Federal Torts Claim Act ("FTCA") alleging negligence against the USA. See Record Document 1. Hunter asserts two negligence claims: (1) negligence in changing the operational plan (hereinafter "pre-shooting negligence") and (2) negligent wounding by Barker. See id. Defendant filed a motion to dismiss the pre-shooting negligence claim under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. See Record Document 31. In addition, Defendant moved for summary judgment on the negligent wounding claim. See Record Document 30. Hunter filed an opposition to both motions. See Record Documents 34 & 57. Defendant filed replies. See Record Documents 44 & 40.

I. Motion to Dismiss
A. Rule 12(b)(1) Standard

Motions filed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure permit a party to challenge the subject matter jurisdiction of the district court to hear the case. Courts may dismiss a lawsuit for lack of subject matter jurisdiction on any one ofthree different bases: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). The party asserting jurisdiction bears the burden of proof for a Rule 12(b)(1) motion to dismiss. See id.

Rule 12(b)(1) challenges to subject matter jurisdiction come in two forms: "facial" attacks and "factual" attacks. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). A "facial" attack is limited to the pleadings and requires the trial court to assume the allegations as true. Id. A "factual" attack challenges the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings—such as testimony and affidavits—may be considered. Id. Because the parties have submitted evidence outside the pleadings, Defendant's Motion to Dismiss is a "factual" attack, and the Court will consider the evidence in the record, resolving any disputed facts.

B. Sovereign Immunity and the FTCA

Absent Congressional consent, sovereign immunity bars suits against the United States. See Block v. North Dakota ex. Rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287, 103 S.Ct. 1811, 1819 (1983). The FTCA, however, waives sovereign immunity and "provides the sole basis of recovery for tort claims against the United States." Gonzales v. United States, 851 F.3d 538, 543 (5th Cir. 2017). The FTCA is subject to various exceptions, including the "discretionary function" exception at issue in this matter. 28 U.S.C. § 2680. The discretionary function exception applies to "[a]ny claim. . .based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether ornot the discretion involved be abused." 28 U.S.C. § 2680(a). The exception serves "to prevent judicial 'second-guessing' of legislative and administrative decisions..." United States v. Gaubert, 499 U.S. 315, 323, 111 S.Ct. 1267, 1273 (1991).

The United States Supreme Court formulated a two-part test to determine whether a governmental act falls within the discretionary function exception. See id. at 322-23. First, the court must determine whether the act involves an element of judgment or choice. See id. at 322. Under this prong, the court decides whether a statute, regulation, or policy mandates a specific course of action. See id. If no mandate exists, the governmental action is considered discretionary. Second, the court determines whether "that judgement is of the kind that the discretionary function was designed to shield." Id. at 322-323. Relative to this inquiry is "whether that judgment or choice is based on considerations of public policy." In re Katrina Canal Breaches Consol. Litig.,...

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