Patty v. United States, CIVIL ACTION NO. H-13-3173

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
• Parties: STEVEN CRAIG PATTY, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Docket Number: CIVIL ACTION NO. H-13-3173
• Decision Date: 27 April 2015

STEVEN CRAIG PATTY, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

CIVIL ACTION NO. H-13-3173

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

April 27, 2015

MEMORANDUM AND OPINION

This is a property-damage suit arising from a sting operation that went awry. The plaintiff, Steven Craig Patty, seeks damages arising from the Drug Enforcement Agency's use of his company tractor-trailer without his consent in a controlled drug sale to members of a Mexican drug cartel. Patty alleges that the DEA agents were negligent, damaging his truck and and killing his driver. Patty also asserts claims for conversion, abuse of process, and constitutional torts. The United States has moved to dismiss and for summary judgment, arguing that Patty's claims fail as a matter of law. Patty has moved for partial summary judgment that the United States is liable for damages.

Based on a careful review of the pleadings; the motion, response, and reply; the record; and the applicable law, this court grants the government's motion for summary judgment, denies Patty's motion for partial summary judgment, and enters final judgment by separate order. The reasons for these rulings are explained in detail below.

I. Background

In July 2011, Steven Craig Patty started "Craig Thomas Expeditors," a small trucking company. Patty purchased two Kenworth T600 trucks and hired two drivers. Patty did not know that one of the drivers he hired had been a confidential informant for the Drug Enforcement Agency.

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On November 18, 2011, this driver contacted DEA Task Force Officer ("TFO") Villasana, a City of Houston police officer deputized as a DEA agent. The driver told Villasana that he had been asked by someone with the Zeta drug cartel "to transport 1800 lbs. of marijuana from Rio Grande City, Texas to an individual in the Houston area." (Docket Entry No. 53, Ex. A ¶ 4). Patty's driver told Villasana that "he had contract work that would put him in the vicinity of Rio Grande City, Texas," and that "he would tell the owner of the tractor-trailer that he was leasing[] that he had planned to spend Thanksgiving in Houston" and "knew of an inexpensive repair shop in Houston where he could take the truck for routine maintenance and needed repairs." (Id., ¶ 5). The driver did not tell Villasana the name of the truck's owner. (Id.). On November 20, 2011, the driver called Villasana again and told him that he had been instructed to pick up and transfer the marijuana the next day. (Id., ¶ 7). Villasana and the driver had no further discussions. (Id.).

The DEA Task Force decided to conduct a controlled drug delivery using Patty's driver and truck, targeting several suspected drug smugglers associated with the Zeta cartel. The Task Force "met and devised a surveillance plan" calling for the tractor-trailer to "remain under surveillance at a safe distance by undercover vehicles and aircraft, until the actual delivery of the narcotics took place at a prearranged meeting place" in Houston. "At that point, law enforcement would converge, arrest the suspects[,] and seize the narcotics." (Id. ¶ 8).

On November 21, 2011, Patty's driver picked up the load of marijuana in Rio Grande City and began hauling it to the prearranged meeting point in Houston. The plan quickly deteriorated. Several heavily armed cartel members in three sport-utility vehicles intercepted the truck in northwest Houston. The ensuing firefight wounded an undercover Harris County Sheriff's deputy and killed Patty's driver. Patty's truck was "wrecked and riddled with bullet holes." (Docket Entry

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No. 34, ¶ 15). The DEA temporarily impounded his truck but returned it to him in November 2011, still in damaged condition. (Docket Entry No. 53, Ex. B, at 7).

Patty sought compensation from the DEA for the damage to his truck and company and for police protection against cartel retaliation. He feared that the cartel might come after him on learning that the truck belonged to his company. (Docket Entry No. 34, ¶ 17). The DEA refused Patty's requests. The government never paid to have Patty's truck repaired. Nor did Patty's insurance company, which took the position that the damage resulted from "unauthorized" or "illegal" activity. (Id., ¶ 21). Patty had to take money out of his 401K retirement fund to repair the truck. He lost business from his inability to use the truck for 100 days.

On July 23, 2012, Patty filed an administrative claim seeking $1,483,532.10 from the government, $133,532.10 for his economic losses and $1,350,000 for his "pain, suffering, and humiliation." (Docket Entry No. 1, ¶ 31). Nearly one year later, on July 8, 2013, the Department of Justice denied Patty's claim. On October 29, 2013, within the 180-day period limit set by the Federal Tort Claims Act, Patty sued the United States, the head of the DEA Houston Office, six unknown federal agents, Harris County, Texas, and five unknown state and county officers. (Docket Entry No. 1). Patty asserted claims under the Federal Tort Claims Act, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 42 U.S.C. § 1983, for negligence, intentional torts, and violations of his constitutional rights, and sought $1,483,532.10 in actual damages and $5,000,000 in punitive damages. (Docket Entry No. 1, ¶¶ 45-46).

In May 2014, Patty voluntarily dismissed his claims against all the defendants except the United States. In his second amended complaint, Patty asserts four types of tort claims under the Federal Tort Claims Act: (1) "federal common law 'constitutional torts' recognized in Bivens"; (2)

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negligence; (3) conversion; and (4) abuse of process. (Docket Entry No. 34, ¶ 30). On February 5, 2015, the government moved to dismiss or for summary judgment, arguing that the constitutional claims are not proper under the FTCA, the FTCA's discretionary function exception bars the negligence and conversion claims, the "intentional tort" exception bars the conversion claim, and that the amended complaint fails to state an abuse-of-process claim. (Docket Entry No. 53). Patty moved for partial summary judgment on the government's liability. (Docket Entry No. 54). Each party responded and replied. (Docket Entry Nos. 55, 56, 57).

The parties' arguments are analyzed below.

II. The Applicable Law

A. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) governs challenges to a court's subject-matter jurisdiction. "Under Rule 12(b)(1), a claim is properly dismissed for lack of subject-matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the claim." In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 286 (5th Cir. 2012) (quotation omitted). Rule 12(b)(1) challenges to subject-matter jurisdiction may be facial or factual attacks. See, e.g., Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir. 2012); Russell v. City of Houston, 808 F. Supp. 2d 969, 972 (S.D. Tex. 2011) (citing Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981)). "A defendant makes a factual attack upon a complaint when a defendant 'submits affidavits, testimony, or other evidentiary materials.'" Gloston v. Dep't of Homeland Sec., 2014 WL 1660630, at *1 (E.D. La. Apr. 25, 2014) (quoting Paterson, 644 F.2d at 523). "If a court confronts a factual attack, the plaintiff must 'submit facts through some evidentiary method and has the burden of proving by a preponderance of the evidence that the trial court does have subject

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matter jurisdiction.'" Id. (quoting Paterson, 644 F.2d at 523).

When a "jurisdictional attack [is] intertwined with the merits of an FTCA claim," however, resolving "the jurisdictional issue on a 12(b)(1) motion [alone] [is] improper." Montez v. Dep't of Navy, 392 F.3d 147, 150 (5th Cir. 2004). Instead, courts "must apply a 12(b)(6) or summary judgment standard to resolve issues dispositive of both subject matter jurisdiction and the merits." Id. at 151; see also id. at n.3 (observing that a district court may, under certain circumstances, "determine whether [a federal employee] was acting within the course and scope of his [federal] employment on a Rule 56 motion for summary judgment"); but see Houston Refining, L.P. v. United Steel, Paper and Forestry, Rubber, Mfg., 765 F.3d 396, 407 n.20 (5th Cir. 2014) (limiting Montez "to actions under the Federal Tort Claims Act" and "express[ing] doubt about whether a court can ever assume jurisdiction and proceed to the merits" but reserving "for a future case a fuller consideration of the correctness of Montez").

B. Rule 12(b)(6)

Rule 12(b)(6) allows dismissal if a plaintiff fails "to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). A complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009). Rule 8 "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). "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

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alleged." Id. (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556).

To withstand a Rule 12(b)(6) motion, a "complaint must allege 'more than labels and conclusions,'" and "'a formulaic recitation of the elements of a cause of action will not do.'" Norris v. Hearst Trust, 500 F.3d 454, 464 (5th...