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Awad v. United States

United States District Court, D. New Mexico

August 29, 2018

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

          ORDER ADOPTING CHIEF MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          HONORABLE MARTHA VAZQUEZ UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on the Chief Magistrate Judge's Proposed Findings and Recommended Disposition (the “PFRD”), (Doc. 43), filed April 13, 2018; Plaintiff's Objections to the United States Magistrate Judge's Proposed Findings and Recommended Disposition Regarding Defendant's Motion to Dismiss for Lack of Jurisdiction (the “Objections”), (Doc. 44), filed April 26, 2018; Defendant's Response of the United States in Opposition to Plaintiff's Objections to the United States Magistrate Judge's Proposed Findings and Recommended Disposition (the “Response”), (Doc. 48), filed May 18, 2018; and Plaintiff's Reply to Defendant's Response to Plaintiff's Objections to the United States Magistrate Judge's Proposed Findings and Recommended Disposition Regarding Defendant's Motion to Dismiss for Lack of Jurisdiction (the “Reply”), (Doc. 49), filed May 23, 2018. This matter is also before the Court on Plaintiff's Unopposed Nunc Pro Tunc Motion to File Reply to Government's Response to Plaintiff's Objections to Magistrate Judge's Proposed Findings and Recommended Disposition, (Doc. 51), filed June 5, 2018.

         On April 13, 2018, the Chief Magistrate Judge found that the Court does not have subject matter jurisdiction over Plaintiff's claims because they fall within the discretionary function exception of the Federal Tort Claims Act's (the “FTCA”) waiver of sovereign immunity. (Doc. 43 at 24). Therefore, the Chief Magistrate Judge recommended that Defendant's Rule 12(B)(1) and Rule 56 Motion to Dismiss and Memorandum in Support (the “Motion to Dismiss”), (Doc. 26), be granted, and that Plaintiff's claims be dismissed without prejudice. Id. at 24-25. The parties were notified that written objections were due within fourteen days. Id. at 25. Plaintiff filed his Objections on April 26, 2018. (Doc. 44). Following a de novo review of the record and the PFRD, the Court will: (1) grant Plaintiff's Unopposed Nunc Pro Tunc Motion to File Reply to Government's Response to Plaintiff's Objections to Magistrate Judge's Proposed Findings and Recommended Disposition, (Doc. 51); (2) overrule Plaintiff's Objections; (3) grant Defendant's Motion to Dismiss, (Doc. 26); and (4) adopt the PFRD and dismiss this case without prejudice.

         I. Background

         This case arises from Plaintiff's arrest for distribution of a controlled substance. (Doc. 43 at 2). On February 20, 2012, at a smoke shop in Albuquerque, New Mexico, an Albuquerque Police Department (“APD”) officer purchased a banned substance as part of an undercover operation. (Doc. 23, ¶¶ 21, 24); (Doc. 23-7). Plaintiff was the registered owner of the shop, and the officer's report stated 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 a video of the February 20, 2012 purchase 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 Amended Complaint, Plaintiff brought three tort claims against Defendant under the FTCA for: (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). In Defendant's Motion to Dismiss, Defendant contends the Court lacks subject matter jurisdiction to hear Plaintiff's claims because Defendant's sovereign immunity is not waived by the FTCA. (Doc. 26 at 6).

         On March 28, 2018, the Court referred this case to Chief Magistrate Judge Garza to perform legal analysis and recommend an ultimate disposition. (Doc. 42). In the PFRD, the Chief Magistrate Judge explained 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.

(Doc. 44 at 4-5) (quoting 28 U.S.C. § 1346(b)(1)). However, the “discretionary function” exception to the FTCA provides that 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 Chief Magistrate Judge first considered whether the discretionary function exception to the FTCA's waiver of sovereign immunity applies to Plaintiff's claim that the agents were negligent in identifying Plaintiff as the individual in the 2012 video, and in arresting, charging, and imprisoning Plaintiff based on that identification. (Doc. 44 at 12-20). The Chief Magistrate Judge conducted the two-prong analysis set out in Berkovitz v. United States, 486 U.S. 531, 536-37 (1988). (Doc. 44 at 12-20). This analysis consists of determining: (1) whether the acts or omissions of the government employee were discretionary; and (2) whether the governmental actions and decisions were based on considerations of public policy. 486 U.S. at 536-37. Under the first prong, the Chief Magistrate Judge found the agents' acts or omissions were discretionary because their decisions involved elements of judgment or choice and they were not bound by policies that prescribed a specific course of action for them to follow. Id. at 12-18. Under the second prong, the Chief Magistrate Judge found the agents' actions and decisions were based on considerations of public policy, such as the use of DEA funds, relationships with local law enforcement entities, and consideration of community and officer safety issues. Id. at 18-20. Therefore, the Chief Magistrate Judge found that Plaintiff's negligence claim falls within the discretionary function exception of the FTCA's waiver of sovereign immunity. Id. at 20.

         Next, the Chief Magistrate Judge considered whether Plaintiff's intentional tort claims of false arrest and false imprisonment are also barred under the discretionary function exception, or whether they fall within the law enforcement proviso of the intentional torts exception of the FTCA. Id. at 20-24. The intentional tort exception of the FTCA provides that sovereign immunity is not waived for certain intentional torts, including false imprisonment and false arrest, except when those torts arise from the acts or omissions of law enforcement officers. Id. at 20. The Chief Magistrate Judge relied on the Tenth Circuit's decision in Garling v. United States Envtl. Prot. Agency, 849 F.3d 1289, 1298 (10th Cir. 2017), where the Tenth Circuit cautioned that “a plaintiff may not recast a negligence tort as an intentional tort to take advantage of the law enforcement exception to” the FTCA, and that courts should look to the substance of the claims “and not how [the plaintiffs] labeled them in their complaint.” Id. at 23. The Chief Magistrate Judge noted that Plaintiff's Amended Complaint does not contain allegations that the agents deliberately misidentified Plaintiff as the person in the 2012 video, that the agents knew that Plaintiff was misidentified, or that they arrested or imprisoned him knowing that he was not the subject of the video. Id. at 23-24. Therefore, the Chief Magistrate Judge found that Plaintiff's intentional tort claims amount to claims for negligence, so the law enforcement proviso does not apply in this case. Therefore, the Chief Magistrate Judge recommended that Defendant's Motion to Dismiss be granted, and that Plaintiff's claims be dismissed without prejudice. Id. at 24.

         II. Analysis

         A. Plaintiff's Motion to File a Reply to Defendant's Response to Plaintiff's Objections

         Plaintiff asks the Court to allow him to file a reply to address arguments raised in Defendant's Response to Plaintiff's Objections to the PFRD. (Doc. 51 at 2). Defendant does not object to Plaintiff's request. Id. at 3. Although Federal Rule of Civil Procedure 72(b) contains no provision allowing a reply to a party's objections, in the interests ...


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