Martinez v. U.S., CV02-1164 LH/LFG.
| Decision Date | 11 March 2004 |
| Docket Number | No. CV02-1164 LH/LFG.,CV02-1164 LH/LFG. |
| Citation | 311 F.Supp.2d 1274 |
| Parties | Sandra MARTINEZ, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of New Mexico |
Jason Bowles, Sharp, Jarmie & Bowles, PA, Albuquerque, NM, for Plaintiff.
Elizabeth M. Martinez, U.S. Attorney's Office, District of New Mexico, Albuquerque, NM, for Defendant.
THIS MATTER comes before the Court on United States' Motion to Dismiss or, in the Alternative, for Summary Judgment (Docket No. 10), filed January 13, 2003; Plaintiff's Motion to Amend Complaint (Docket No. 35), filed May 20, 2003; and Plaintiff Sandra Martinez' Motion to Supplement Her Response to the United States' Motion to Dismiss or in the Alternative for Summary Judgment (Docket No. 57), filed August 21, 2003. The Court, having considered the Motions, the memoranda of the parties, and the applicable law, and otherwise being fully advised, finds that Plaintiff's Motion to Amend Complaint is not well taken and will be denied, Plaintiff's Motion to Supplement Her Response is well taken in part and will be granted in part and denied in part, and Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment is well taken and will be granted.
In her Complaint for Personal Injury and Money Damages, Plaintiff alleged that she was forcibly raped by Laguna Police Officer David Chavez on November 24, 2001, while he was transporting her from the Laguna Detention Center to the Cibola County Corrections Center in Milan, N.M. She brought two Counts against the United States, pursuant to the Federal Tort Claims Act ("FTCA"). In Count I she charged negligence resulting in personal injury for unreasonable hiring, supervision, management and training of corrections officers and employees; unreasonable failure to adopt policies and regulations for supervision, care, and transport of female prisoners; and unreasonable failure to oversee Laguna Police and corrections operations. In Count II she claimed intentional assault and battery resulting in personal injury.
The Court granted partial summary judgment to Defendant on Count II in its Order of April 11, 2003. Defendant now moves to dismiss Count I for lack of subject matter jurisdiction, pursuant to FED. R. CIV. P. 12(b)(1) and 12(b)(6), or in the alternative, for summary judgment pursuant to Rule 56(b), on grounds that the claims are barred by the FTCA's intentional tort exception. See 28 U.S.C. § 2680(h). Plaintiff seeks to amend her Complaint to add a count for intentional infliction of emotional distress.
Preliminarily, the Court notes that
[w]hen reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. 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). In such instances, a court's references to evidence outside the pleadings does not convert the motion to a Rule 56 motion.
However, a court is required to convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion or a Rule 56 summary judgment motion when resolution of the jurisdictional question is intertwined with the merits of the case. The jurisdictional question is intertwined with the merits of the case if subject matter jurisdiction is dependent on the same statute which provides the substantive claim in the case.
Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995) (citations omitted).
. . . . .
... [T]he focus of the inquiry is not merely on whether the merits and the jurisdictional issue arise under the same statute[, but r]ather, the underlying issue is whether resolution of the jurisdictional question requires resolution of an aspect of the substantive claim.
Pringle v. United States, 208 F.3d 1220, 1222-23 (10th Cir.2000)(citing Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir.1987)).
28 U.S.C. § 1346(b)(1), this waiver does not apply to "[a]ny claim arising out of assault [or] battery," unless the acts or omission are those of "investigative or law enforcement officers," 28 U.S.C. § 2680(h). In its earlier ruling the Court dismissed Plaintiff's assault and battery claims because the alleged perpetrator was not an investigative or law enforcement officer. The issue now before the Court is whether Plaintiff's negligence claims in Count I arise out of that assault and battery.
Summary judgment properly may be granted if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The substantive law at issue determines which facts are material, and "`[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'" Bell v. United States, 127 F.3d 1226, 1228 (10th Cir.1997)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The Court must liberally construe the evidence in favor of the nonmoving party. Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1379 (10th Cir.1994).
Absent its consent, the United States is immune from suit, "and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." Hart v. Dep't of Labor, 116 F.3d 1338, 1339 (10th Cir.1997)(quoting United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (internal quotations omitted)). As discussed above, the United States has waived its sovereign immunity with respect to tort claims in the FTCA, see, e.g., 28 U.S.C. §§ 1346(b)(1), 2674, subject to significant exceptions and exceptions to the exceptions, see, e.g., id. § 2680(h). As a waiver of immunity, the FTCA must be strictly construed. Hart, 116 F.3d at 1339.
The United States maintains that this Court lacks subject matter jurisdiction over Plaintiff's negligence claims because they arise out of Chavez's sexual assault and thus are barred by § 2680(h). Citing Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988), Plaintiff contends that the United States is independently liable for its unreasonable failure to safeguard Plaintiff, to adopt and ensure implementation of policies that would have safeguarded Plaintiff, and to oversee Laguna Detention Center operations.
Plaintiff also seeks leave to supplement her response to Defendant's Motion to include information which she asserts creates issues of material fact regarding the government's independent negligence. This information primarily relates to the Bureau of Indian Affairs ("BIA") Adult Detention Handbook, the provisions of which Plaintiff asserts show that the United States and its agents were negligent in violating BIA policies to implement and adopt mandatory standards for the Laguna Detention Center, in failing to supervise co-ed inmate activities, in failing to adopt policies for supervision of co-ed transportation and activities, and in failing to adequately train employees in standards. Plaintiff also argues that the government's Motion must be denied because her expert, Manuel Romero, has expressed the opinion that the Laguna Detention Center's failure to adopt policies, such as for supervision of co-ed activities, was a contributing cause of the harm to Plaintiff. Plaintiff attempts to further supplement her response to the government's Motion in her reply in support of her Motion to Supplement, through the submission of additional opinions stated by Mr. Romero in his deposition testimony and deposition testimony of Michelle Cochran, Laguna Police Chief.
In its Order of April 11, 2003, the Court noted some confusion regarding discovery in this case. Subsequent discovery has been pursued by the parties, and the Court will grant Plaintiff's Motion to Supplement and, therefore, consider Ex. 1 to her Motion, Plaintiff Sandra Martinez' Supplement to Plaintiff's Response to the United States' Motion to Dismiss or in the Alternative for Summary Judgment. Plaintiff's attempt to further supplement her response by means of her reply to Defendant's response to her Motion to Supplement, however, is procedurally deficient and will not be permitted.
In Hoot v. United States Tenth Circuit adopted the rationale of the plurality opinion in United States v. Shearer in analyzing the assault and battery exclusion of 28 U.S.C. § 2680(h): " " 790 F.2d 836, 838 (1986)(quoting Shearer, 473 U.S. 52, 55, 105 S.Ct. 3039 (1985))(alteration in Hoot, emphasis in Shearer). Subsequent to Shearer and Hoot, however, the Supreme Court
recognized one category of battery-related cases that falls outside the preclusive compass of § 2680(h)...
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Brown v. United States, Civ. No. 09-1058 JCH/ACT
...battery committed by a Government employee, suchclaims are still barred by section 2680(h). See id. See also Martinez v. United States, 311 F. Supp. 2d 1274, 1278-79 (D.N.M. 2004) (claim for negligent supervision arising out of alleged rape by Laguna Police Officer was barred by section 268......