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Awad v. United States

United States District Court, D. New Mexico

April 13, 2018

MOHAMMAD ABED AWAD, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          THE HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on Defendant's Rule 12(B)(1) and Rule 56 Motion to Dismiss and Memorandum in Support (the “Motion”), (Doc. 26), filed March 31, 2016; Plaintiff's Response to Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Rules 12(b)(1) and Rule 56 (the “Response”), (Doc. 28), filed April 12, 2016; and Defendant's Reply in Support of Defendant's Rule 12(B)(1) Motion to Dismiss and Rule 56 Motion for Summary Judgment (the “Reply”), (Doc. 30), filed May 13, 2016. United States District Judge Martha Vazquez referred this case to Chief Magistrate Judge Carmen E. Garza to perform legal analysis and recommend an ultimate disposition. (Doc. 42). Having considered the briefs, the record of the case, and relevant law, the Court recommends that Defendant's Rule 12(B)(1) and Rule 56 Motion to Dismiss and Memorandum in Support, (Doc. 26), be GRANTED and Plaintiff's claims be DISMISSED WITHOUT PREJUDICE.

         I. Background

         On February 20, 2012, at a smoke shop in Albuquerque, New Mexico, an Albuquerque Police Department (“APD”) officer purchased 1 gram of a synthetic cannabinoid containing a banned chemical. (Doc. 23, ¶¶ 21, 24); (Doc. 23-7).[1] The transaction was part of an undercover operation and was recorded on video. (Doc. 23, ¶ 24). Plaintiff was the registered owner of the shop, and the officer's report of the incident states that Plaintiff “appeared to be” the person who sold the controlled substance to him. (Doc. 23-7). However, it was later determined that the person who sold the substance to the officer was Plaintiff's brother, Belal Awad, who resembles Plaintiff. (Doc. 23, ¶¶ 24, 29).

         On March 18, 2014, Drug Enforcement Agency (“DEA”) Agent S.H. submitted to the Court applications for search warrants and supporting affidavits to search Plaintiff's residence and several other locations. Id., ¶ 34. The affidavits stated that Agent S.H. reviewed the February 20, 2012, video and identified Plaintiff as the person who sold the controlled substance to the APD officer. Id., ¶ 35. On March 20, 2014, the DEA searched Plaintiff's residence and arrested Plaintiff without a warrant. Id., ¶¶ 37-38. On March 21, 2014, DEA Agent J.M. filed a Criminal Complaint with supporting affidavit stating that Agents J.M. and S.H. reviewed the February 20, 2012, video and identified Plaintiff as the person who sold the controlled substance. Id., ¶ 40; (Doc. 23-2). Plaintiff was charged with distribution of a controlled substance, and was incarcerated from March 20, 2014 to September 9, 2014. Id., ¶¶ 41-42. On September 9, 2014, the United States Attorney's Office dismissed the charge against Plaintiff and Plaintiff was released from incarceration. Id., ¶¶ 74-75. On September 17, 2014, Agent S.H. filed a Criminal Complaint with a supporting affidavit stating that Belal Awad was the person in the February 20, 2012 video, and charged him with distribution of a controlled substance. (Doc. 23-5).

         In Plaintiff's original Complaint, Plaintiff brought claims against Defendant under the Federal Tort Claims Act (“FTCA”) for negligence, false arrest, and false imprisonment. (Doc. 1 at 9-12). Defendant moved to dismiss these claims alleging that the Court lacked subject matter jurisdiction under the FTCA and that Plaintiff failed to state a claim. (Doc. 14). On February 24, 2016, the presiding judge in this case entered a Memorandum Opinion and Order denying Defendant's motion without prejudice. (Doc. 22). The presiding judge noted that Plaintiff added allegations in his response to the motion to dismiss which were not alleged in the Complaint, such as the applicability of certain DEA procedures and that the DEA agent had never personally met Plaintiff or Plaintiff's brother prior to rendering the identification. Id. Therefore, the Court found it prudent to deny Defendant's motion to dismiss without prejudice “in the interest of according Plaintiff a final opportunity to file an Amended Complaint that contains a complete recitation of the facts that Plaintiff believes entitle him to relief.” Id. at 5.

         Plaintiff then filed his Amended Complaint and included the above-referenced additional allegations. In his Amended Complaint, Plaintiff again brings three tort claims against Defendant: (1) negligence in the identification of Plaintiff as the individual in the February 20, 2012, video who distributed a controlled substance, and for negligently arresting, charging, and imprisoning Plaintiff based on that identification, (Doc. 23, ¶¶ 84-92); (2) the intentional tort of false arrest based on the incorrect identification of Plaintiff in the video, (id., ¶¶ 93-99); and (3) the intentional tort of false imprisonment, also based on the incorrect identification of Plaintiff in the video, (id., ¶¶ 100-06). Plaintiff brings his claims under the FTCA against the United States, as the sole proper defendant pursuant to 28 U.S.C. §§ 1346(b), 2674, (id., ¶ 8), and Plaintiff states that he has exhausted his administrative remedies under the FTCA, 28 U.S.C. § 2675(a), (id., ¶ 15).

         In its Motion, Defendant contends the Court lacks subject matter jurisdiction under the FTCA despite the additional allegations in Plaintiff's Amended Complaint. (Doc. 26 at 6). While the FTCA waives sovereign immunity for some tort claims, Defendant contends that the law enforcement officers' actions in this case were discretionary functions undertaken in the investigation of a crime, and are therefore exceptions to the FTCA's waiver of sovereign immunity. Id. at 7-25. In response, Plaintiff argues the discretionary function exception to the FTCA's waiver of sovereign immunity does not apply to his claims because the DEA agents violated nondiscretionary DEA policies. (Doc. 28 at 9-30). Further, Plaintiff contends that his intentional tort claims fall under the law enforcement proviso of the intentional tort exception of the FTCA, so the Court has jurisdiction over Plaintiff's intentional tort claims regardless of whether or not the discretionary function exception applies. Id. at 30-35.

         II. Legal Standards

         A. Federal Tort Claims Act

         The FTCA waives sovereign immunity and authorizes suits against the United States

for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1). Because the FTCA constitutes a partial waiver of the United States' immunity, its provisions must be strictly construed, and a court should neither narrow the waiver nor “take it upon [itself] to extend the waiver beyond that which Congress intended.” Smith v. United States, 507 U.S. 197, 203 (1993). Whether or not the United States has consented to a particular type of suit is a threshold jurisdictional issue and, if a court concludes that the United States has not waived its immunity to suit in a particular matter, the court does not have jurisdiction to hear the case and it must be dismissed. See Franklin v. United States, 992 F.2d 1492, 1495 (10th Cir. 1993).

         There are many exceptions to this waiver of sovereign immunity, including the discretionary function exception, which states the United States' immunity is maintained for “[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 or not the discretion involved is abused.” 28 U.S.C. § 2680(a). “The discretionary function exception marks the boundary between Congress' willingness to impose tort liability on the United States and the desire to protect certain decision-making from judicial second guessing.” Berkovitz v. United States, 486 U.S. 531, 536-37 (1988).

         In Berkovitz, the Supreme Court announced a two-prong analysis for determining when the FTCA's discretionary function exception applies. 486 U.S. at 536. First, acts or omissions taken by the government employee must be discretionary, which is defined as conduct that “involves an element of judgment or choice.” Id. “Thus, the discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.” Id. Second, the conduct must involve the type of decision-making that the discretionary function exception was designed to protect. Id. The purpose of the discretionary function exception is “to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Id. at 536-37. Therefore, the exception applies to “governmental actions and decisions based on considerations of public policy.” Id. Importantly, in applying the Berkovitz analysis, the question of negligence is irrelevant: “When the government performs a discretionary function, the exception to the FTCA applies regardless of ‘whether or not the discretion involved be abused.'” Redman v. United States, 934 F.2d 1151, 1157 (10th Cir. 1991) (quoting 28 U.S.C. § 2680(a)).

         Another exception to the FTCA's waiver of sovereign immunity is known as the “intentional torts” exception, which bars FTCA actions for “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. § 2680(h). However, the “law enforcement proviso” in the same subsection provides an exception to this exception that permits six tort actions (assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution) that otherwise fall within the intentional torts exception if they are brought against “investigative or law enforcement officers of the United States Government.” Id.

         B. Rule 12(b)(1) and Rule 56

         Defendant moves to dismiss this case pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, or, in the alternative, for summary judgment under Fed.R.Civ.P. 56. (Doc. 26 at 6). A party bringing suit against the United States bears the burden of proving that the government has waived its sovereign immunity. See James v. United States, 970 F.2d 750, 753 (10th Cir. 1992). The “terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit.” United States v. Mitchell, 445 U.S. 535, 538 (1980).

         When reviewing a challenge to its subject matter jurisdiction, the Court does not assume the truthfulness of the complaint's factual allegations, but instead has wide discretion to consider affidavits and other documents to resolve disputed jurisdictional facts. See Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Thus, a Rule 12(b)(1) motion, unlike a Rule 12(b)(6) motion, can include references to evidence extraneous to the complaint without converting it to a Rule 56 summary judgment motion. See Wheeler v. Hurdman, 825 F.2d 257, 259, n.5 (10th Cir. 1987). However, when jurisdictional issues raised in a Rule 12(b)(1) motion are intertwined with the case's merits, the Court must resolve the motion under either Rule 12(b)(6) or Rule 56. Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1129-30 (10th Cir. 1999). The jurisdictional question is considered intertwined with the merits of the case when, as here, the court's subject matter jurisdiction is conditioned upon the same statute that provides the substantive claim in the case. See Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 978 (10th Cir. 2002). Moreover, the Tenth Circuit has found that “the determination of whether the FTCA excepts the government's action from its waiver of sovereign immunity involves both jurisdictional and merits issues, ” and, therefore, should be resolved under Rule 56. Bell v. United States, 127 F.3d 1226, 1228 (10th Cir. 1997). Thus, the Court will treat the Motion as a motion for summary judgment pursuant to Rule 56.

         Summary judgment is appropriate if “the record contains no evidence of a genuine issue of material fact and demonstrates that the moving party is entitled to judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 247 (1986); Woodman v. Runyon, 132 F.3d 1330, 1337 (10th Cir. 1997); Fed.R.Civ.P. 56(c). The Court views the record and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party. Thomas v. Int'l Bus. Machines, 48 F.3d 478, 484 (10th Cir. 1995). The moving party has the initial burden of showing that there is no genuine issue of material fact. Anderson, 477 U.S. at 256. Once the moving party has met its burden, the non-moving party must do more than merely show that there is some doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party may not rest on mere allegations or denials of the pleadings, but must set forth specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248, 256. Although the Court views the evidence and draws all inferences in the light most favorable to the party opposing summary judgment, ...


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