Ponce v. United States
| Decision Date | 21 February 2023 |
| Docket Number | PE:22-CV-00012-DC-DF |
| Parties | OSVALDO CAMBA PONCE, Plaintiff, v. UNITED STATES OF AMERICA and DEREK B. VOLMERING, Individually, Defendants. |
| Court | U.S. District Court — Western District of Texas |
REPORT AND RECOMMENDATION OF THE U.S. MAGISTRATE JUDGE
BEFORE THE COURT is Defendant Derek B. Volmering's (“Volmering”) Motion to Dismiss.[1] This case is before the undersigned United States Magistrate Judge through a standing order of referral pursuant to 28 U.S.C. § 636, and Appendix C of the Local Court Rules for the Assignment of Duties to United States Magistrate Judges. After due consideration, the undersigned RECOMMENDS that the Motion to Dismiss be GRANTED IN PART.[2]
I. Background
On or about April 30, 2021, Plaintiff Osvaldo Camba Ponce (“Plaintiff”) crossed into the United States from Mexico near Van Horn, Texas. Volmering, an agent with the United States Border Patrol (“Border Patrol”) was encountered and apprehended Plaintiff through the use of a canine unit reportedly named “Cappy,” “Cappi,” or a similar iteration.[3]
Plaintiff alleges the canine-assisted apprehension caused him various physical injuries. On August 31, 2022, Plaintiff filed his First Amended Complaint, which is the live pleading before the Court. He asserts claims against both the United States of America (“United States”) and Volmering. Specifically, he argues that Volmering used unlawful force in apprehending him in violation of his Fourth Amendment rights under Bivens v. Six Unnkown Named Agents of Federal Bureau of Narcotics.[4] Plaintiff also presents against Volmering a state law claim for battery.
Volmering filed the Motion to Dismiss on November 10, 2022. Plaintiff has not responded. The United States filed a Notice of Substitution of the United States of America (hereafter “Notice of Substitution”) pertaining to Plaintiff's state law battery claim on November 10 2022.[5]Accordingly, this matter is now ripe for disposition.
II. Legal Standard
When a defendant files a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the trial court must assess whether a complaint states a plausible claim for relief.[6] The court must accept “all well-pleaded facts in the complaint as true and viewed in the light most favorable to the plaintiff.”[7] “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 alleged.”[8]
On the other hand, if the complaint only offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action,” dismissal is appropriate.[9] “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”[10] The court should dismiss the complaint if it can only infer the mere possibility of misconduct, or if the plaintiff has only alleged he is entitled to relief rather than stating a claim that is “plausible on its face.”[11]
III. Analysis
Plaintiff asserts two separate claims against the United States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346. As to Volmering, Plaintiff presents a claim for a violation of his Fourth Amendment right “to be free from unreasonable seizures by using excessive and unreasonable force,” as well as a claim based on state law battery. The United States requests that it be substituted for Volmering as to the battery claim. The battery claim will be addressed first.
The Westfall Act thus “accords federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties.”[15] Following the United States' substitution, the resulting litigation is thereafter governed by the FTCA.[16] All that is needed is a scope-of-employment certification by a qualified individual. This certification is subject to judicial review.[17]
In this case, the United States seeks to certify that, at the time of the incidents giving rise to the alleged battery, Volmering “was acting within the course and scope of his employment as an employee with the United States Customs and Border Protection.” This certification is signed by Mary Kruger, Chief for the Civil Division of the Office of the United States Attorney for the Western District of Texas.[18] Pursuant to regulation, “[t]he United States Attorney for the district where the civil action or proceeding is brought . . . is authorized to make the statutory [scope-of-employment] certification.”[19] Ms. Kruger therefore is a proper individual to provide the Westfall Act certification.
Because Volmering was acting within the course and scope of his federal employment, and a proper individual has moved for certification of this fact, the Westfall Act is applicable.[20] Therefore, the substitution of the United States for Volmering is proper. Accordingly, the undersigned RECOMMENDS that the United States a be SUBSTITUTED for Volmering as to Plaintiff's state law battery claim, and that the state law battery claim be DISMISSED as against Volmering.
Plaintiff also asserts a Bivens claim against Volmering. Volmering argues that existing Bivens remedies do not permit the instant cause of action. In the alternative, Volmering contends the facts of this case do not warrant this Court's recognition of a new Bivens remedy.[21]
In 1971, the Supreme Court of the United States encountered Bivens. There, the petitioner was arrested in his apartment for alleged narcotics violations by agents of the Federal Bureau of Narcotics “acting under claim of federal authority.” The respondents, the agents, had strip-searched him and manacled him in front of and threatened to arrest his family. The petitioner sued the respondents based upon a lack of probable cause or a valid warrant, and asserted that “unreasonable force was employed in making the arrest.” The petitioner sought $15,000 worth of damages from each agent.[22]
The lower courts dismissed the petitioner's complaint “on the ground . . . that it failed to state a cause of action.” On appeal to the Supreme Court, the respondents argued that the petitioner “may obtain money damages to redress [an] invasion of [the petitioner's Fourth Amendment] rights only by an action in tort, under state law, in the state courts.”
The Court first observed that the Fourth Amendment “guarantees to citizens . . . the absolute right to be free from unreasonable searches and seizures carried out by virtue of federal authority.” Affirming prior precedent, the Court noted that “where federally protected rights have been invaded, it has been the rule from the beginning that courts will . . . adjust their remedies so as to grant the necessary relief.”[23]
The Court concluded that “damages may be obtained for injuries [for] a violation of the Fourth Amendment by federal officials.” The Court framed the analysis to inquire whether a plaintiff, “if he can demonstrate an injury [based on a] violation by federal agents of his Fourth Amendment rights, is entitled to redress his injury through a particular remedial mechanism normally available in the federal courts.” The Court determined that this unprecedented remedy was warranted since the case involved “no special factors counseling hesitation in the absence of affirmative action by Congress.” Recognizing that the typical source of remedies is congressional action, the Court finally acknowledged there was “no explicit congressional declaration” that the appropriate remedy would be something other than damages.[24] Thus, for the first time, the Court had, of its own extra-congressional volition “under general principles of federal jurisdiction,”[25] authorized a damages action against federal officials for a violation of a plaintiff's constitutional rights.[26]
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