United States District Court, D. New Mexico
Erlinda O. Johnson Law Office of Erlinda Ocampo Johnson
Attorney for Plaintiffs
Grohman Ruth Fuess Keegan Assistant U.S. Attorneys Attorneys
MEMORANDUM OPINION AND ORDER
VÁZQUEZ United States District Judge
MATTER comes before the Court on Plaintiffs JGE, Gabriela
Gallegos, Jolene Estrada and Joyce Estrada's Motion to
Alter or Amend the Court's Memorandum Opinion and
Judgment as to Defendant United States, filed August 29, 2016
[Doc. 77]. On August 9, 2016, this Court dismissed all claims
against the United States, finding that because the Complaint
failed to state a claim of negligence under New Mexico law,
Plaintiffs failed to state claims under the Federal Tort
Claims Act, 28 U.S.C. § 1346(b). [Doc. 75]. The Court,
having considered the Motion, briefs, relevant law, and being
otherwise fully informed, finds that Plaintiffs' Motion
is not well-taken and will be DENIED.
claims against the United States, brought under the Federal
Tort Claims Act (“FTCA”) 28 U.S.C. §
1346(b), arose out of the Drug Enforcement Agency's
(“DEA”) activation and use of Edward Quintana as
an informant. The allegations in the First Amended Complaint
(“FAC”) supporting Plaintiffs' claims are set
forth fully in the Court's Memorandum Opinion and Order
dated August 9, 2016. [Doc. 75]. The Court incorporates those
facts by reference herein. In summary, while employed as an
informant but unrelated to his activities as an informant,
Quintana moved in with the Estrada family and shortly
thereafter began sexually molesting the family's then
five-year-old son, JGE. After Quintana moved out, JGE told
his parents about the abuse, prompting JGE's father,
Jason Estrada, to ask around the neighborhood for
Quintana's whereabouts. Upon learning that Jason Estrada
was telling people about the abuse, Quintana and two other
males returned to the home on April 3, 2013, and, in the
presence of young JGE, murdered Jason Estrada. Quintana was
deactivated as an informant roughly the following day.
sued both individually named DEA employees as well as the
United States. Plaintiffs claimed in Counts I-XVII of the
Complaint that because the DEA (1) failed to warn Plaintiffs
that Quintana was a dangerous DEA informant, and (2)
negligently supervised Quintana, the United States breached
its duty to protect Plaintiffs from Quintana, who the DEA
knew or should have known had violent tendencies. [Docs. 19
at 65-114; 77 at 1].
The Court's August 9, 2016 Opinion
previous Memorandum Opinion and Order, this Court dismissed
all claims against both the named Individual Defendants and
the United States. [Doc. 75 at 21-37]. Plaintiffs' Rule
59(e) Motion only challenges the judgment in favor of the
United States. [Doc. 77]. The Court's reasoning was
guided by two fundamental principles governing FTCA claims.
First, the FTCA does not create liability but merely provides
that the tort law of the state where the conduct occurred
applies to the United States. See Doc. 75 at 23
(citing 28 U.S.C. § 1346(b)(1); Hill v. SmithKline
Beecham Corp., 393 F.3d 1111, 1117 (10th Cir. 2004)).
Second, under the FTCA the United States is only liable to
the same extent as private individuals in comparable
circumstances. Id. at 24 (citing Coffey v.
United States, 870 F.Supp.2d 1202 (D.N.M. 2012).
Accordingly, the Court examined negligence liability theories
recognized under New Mexico law that might be analogous to
the instant case.
relevant to the present Motion, this Court examined whether
there was a special relationship between the DEA and Quintana
giving rise to a duty to protect Plaintiffs. Pursuant to the
above framework for stating a claim under the FTCA, the Court
examined New Mexico case law regarding the duties that
medical professionals (i.e. potentially analogous private
persons) may have to protect against harmful conduct by their
patients. The Court focused its analysis on Section 319 of
the Restatement (Second) of Torts, which had been adopted by
New Mexico courts for the rule that medical professionals can
be liable for harms caused by patients with known dangerous
propensities, if the doctor exerts control over the patient.
Id. at 29 (citing Brown v. Kellogg, 340
P.3d 1274 (Ct. App. N.M. 2014), inter alia). The
Court reasoned that because Quintana's record of criminal
convictions did not indicate Quintana's dangerous
propensities, and because the DEA did not exert control over
Quintana's residence with the Estrada family, this theory
for private person liability did not apply to the present
case. Id. at 31-33. Medical professionals can also
be liable under New Mexico law for being aware of specific
threats to specific individuals and failing to disclose them
to authorities or to the individual threatened. Id.
at 30 (citing Brown). The Court found that this
theory also did not apply to the present case, as the DEA was
not and could not have been aware of any specific threat to
the Estrada family. Id. at 31-32.
Court also examined FTCA cases involving injuries inflicted
by informants in other states, in which the federal district
court looked to corresponding state law adopting Sections
315-319 of the Restatement, finding that the United States
could be liable only where the harm inflicted by the
informant was reasonably foreseeable. Id. at 30-31.
Therefore, in light of the absence of an analogous liability
theory under New Mexico law, and in light of the holdings in
other federal informant cases applying analogous state
caselaw, this Court held that because the harm to Plaintiffs
was unforeseeable, the DEA did not have a duty to warn or
otherwise protect the Estrada family. Id. at 27-36.
Plaintiffs' Motion to Alter or Amend the Court's
August 29, 2016, Plaintiffs filed the present Motion to Alter
or Amend the Court's Judgment under Rule 59(e) of the
Federal Rules of Civil Procedure, [Doc. 77]. The United
States submitted its response on September 15, 2016, [Doc.
78], and Plaintiffs replied on September 26, 2016, [Doc. 79].
opening brief argues, first, that the Court improperly
considered materials outside the pleadings in adjudicating
the United States' Motion for Judgment on the Pleadings
under Fed.R.Civ.P. 12(c). [Doc. 77 at 8].
Plaintiffs' opening brief argues that the Court
misapprehended New Mexico tort law and should have found that
the United States owed a duty to warn Plaintiffs and protect
Plaintiffs from harm through better supervision, because
“foreseeability of a plaintiff alone does not end the
inquiry” and the existence of a special relationship
between the defendant and the tortfeasor gives rise to a duty
towards all plaintiffs. [Doc. 77 at 10]. Plaintiffs cite New
Mexico's adoption of the Restatement (Second) of Torts
§§ 314A, 319. [Doc. 77 at 10 (citing Ciup v.
Chevron U.S.A., Inc., 928 P.2d 263, 265 (N.M. 1996)
(“As a general rule, an individual has no duty to
protect another from harm caused by the criminal acts of
third persons unless the person has a special relationship
with the other giving rise to a duty.”); Grover v.
Stechel, 45 P.3d 80, 84 (N.M. 2002) (“In order to
create a duty based on a special relationship, the
relationship must include the right or ability to control
another's conduct.”))]. Plaintiffs stated that
“[w]hile [they] agree that the Court must determine
foreseeability as part of determining whether a duty to
plaintiffs existed, plaintiffs submit that the Court first
had to determine whether there were sufficient facts alleged
. . . from which reasonable inferences could be made to
determine the existence of a special relationship between
defendant United States and Quintana.” [Doc. 77 at 11].
Plaintiffs argue that Quintana's record showed
“violent propensities against co-habitants in
general” (noting an alleged incident of Quintana
threatening a landlord) and that “[o]nce Quintana moved
in with the Estrada family, they become foreseeable
plaintiffs and DEA agents owed them a duty.”
Id. at 15.
Plaintiffs accuse the Court of applying the wrong standard
for determining whether private persons in like circumstances
would have a duty under New Mexico state law and argues,
again, that the circumstances of the present case are
analogous to those of a doctor who undertakes supervision and
control of a patient with dangerous propensities, or a