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Molina v. United States

United States District Court, D. New Mexico

August 22, 2019

RAYMOND MOLINA, Plaintiff,
v.
UNITED STATES OF AMERICA and AGENT CHRISTOPHER M. HOLBROOK in his individual and official capacity, Defendant.

          MEMORANDUM OPINION AND ORDER

         On March 6, 2018, Plaintiff Raymond Molina brought a complaint against the Department of Homeland Security (DHS) and Christopher M. Holbrook and FNU Lopez, two current or former Department of Homeland Security (DHS) agents in their individual and official capacities. Plaintiff asserted his claims under the Federal Tort Claim Act, 28 U.S.C. §§ 1346(b) et seq. (FTCA). Plaintiff argued that Defendants Christopher M. Holbrook and FNU Lopez (hereinafter, jointly DHS agents) in their official capacities and their individual capacities had violated his Fourth and Fourteenth Amendment rights by arresting Plaintiff without probable cause, by using unreasonable and excessive force during his arrest/detention, and by initiating malicious prosecution. Plaintiff alleged that DHS was negligent in its training and supervision of defendant officers.[1] On July 24, 2018, DHS answered the Complaint.[2]

         On March 7, 2019, the United States filed a motion for summary judgment[3] asking the Court to dismiss all of Plaintiff's claims against DHS for the following reasons: 1) Plaintiff failed to name the United States as a defendant as required by the FTCA; 2) Plaintiff failed to exhaust administrative remedies on his negligent training and supervision claim under 28 U.S.C. § 2675; and 3) Plaintiff failed to file his claims against the United States within the six (6) month statute of limitations in 28 U.S.C. § 2401(b).

         Plaintiff filed his response on March 21, 2019.[4] The United States replied on April 4, 2019.[5]

         On May 10, 2019, Plaintiff filed an unopposed motion asking the Court to substitute the United States in place of DHS, to dismiss all claims against Defendant Agent Lopez without prejudice, and to dismiss Plaintiff's claims for negligent supervision and training of officers.[6] On May 14, 2019, the Court granted Plaintiff's Motion to Substitute.[7]

         In response to the Court's request that the parties supplement their briefing on equitable tolling, Plaintiff filed an additional brief on June 3, 2019, [8] and the United States filed an additional brief on June 13, 2019.[9]

         As the Court's May 14, 2019 Order resolved two of the United States' arguments, the United States' only remaining argument is that Plaintiff's Complaint is time barred under 28 U.S.C. § 2401(b). That issue is fully briefed.[10] Because Plaintiff untimely filed his federal case, and equitable tolling does not apply, the Court will grant the United States' Motion for Summary Judgment.

         I. FACTS & PROCEDURAL HISTORY

         The following facts are taken from Plaintiff's Complaint, the United States' Motion for Summary Judgment, and Plaintiff's Response.[11] In addition, the Court takes judicial notice of documents filed in the federal court docket in Agent Holbrook's criminal case.[12]

         On March 23, 2015 around 7:30 p.m., Plaintiff and his wife were driving to the United States from Mexico when they were detained at the Santa Teresa Port of Entry by DHS agents.[13]See Complaint (Doc. No. 1) at ¶ 7; Response (Doc. No. 20-2), Ex. 2, at 3. The DHS agents arrested Plaintiff under an outstanding El Paso warrant. See Response (Doc. No. 20-2), Ex. 2 at 3.[14] While escorting Plaintiff to a Customs and Border Protection (CBP) office, “Defendant Holbrook intentionally lifted [Plaintiff] up by his cuffed hands simultaneously sweeping his feet out from underneath him.” Id. This move is known as an “outside leg takedown” or a “mule sweep.” Id. Because of Agent Holbrook's actions, Plaintiff fell to the ground on his face and received injuries including a fracture of his right orbital socket and several other facial bones. Id.; see also Complaint (Doc. No. 1) at ¶ 14. He bled significantly, leaving a “noticeable pool of blood on the floor.” Response, (Doc. No. 20-2), Ex. 2 at 3. An ambulance transported Plaintiff to Mountain View Hospital for treatment. Id. Under CBP policy and training, the move used by Agent Holbrook is appropriate only when an agent is addressing “actively assaultive behavior” by a detainee. Id.

         On February 23, 2016, through his attorney, Plaintiff filed a claim with DHS for damages, injury or death on Standard Form 95 requesting $1, 000, 000 in damages. Motion (Doc. No. 15-2), Ex A-1 at 1. DHS prepared a denial letter dated June 5, 2017 addressed to Plaintiff's counsel. As grounds for the denial of Plaintiff's claim, DHS stated:

You have not provided sufficient documentation to substantiate any injury, loss or harm. Moreover, there is insufficient evidence demonstrating that the alleged damages are attributable to a negligent or wrongful act or omission of a Customs and Border Protection employee while the employee was acting within the scope of his or her employment.

Motion (Doc. No. 15-3) Ex. A-3 at 2. The letter advised Plaintiff's counsel that if he was “dissatisfied with this decision, [he] may file suit in an appropriate United States District Court not later than six (6) months after the date of this notification.” Id. On June 6, 2017, the letter was sent by certified mail to Plaintiff's counsel. On June 8, 2017, Plaintiff's counsel signed the certified mail receipt. Motion (Doc. No. 15-4), Ex. A-3 at 1. Plaintiff did not seek reconsideration of the denial.

         After the denial letter, the CBP's Office of Professional Responsibility continued to investigate the March 23, 2015 event by examining videos and conducting interviews with eyewitnesses and Agent Holbrook. Response (Doc. No. 20-2), Ex. 2 at 4 (stating that Agent Holbrook was interviewed on July 26, 2017 by the CBP's Office of Professional Responsibility).

         On November 7, 2017, the United States filed an Information against Agent Holbrook, charging him with obstruction of justice in violation of 18 U.S.C. § 1519 for falsifying an official document regarding his use of force against Mr. Molina. Response (Doc. No. 20-1), Ex. 1 at 1. In a Sentencing Memorandum filed in Agent Holbrook's criminal case, the United States identified two occasions when Agent Holbrook gave false statements to agents investigating the incident. First, on March 23, 2015, the day of the incident, Agent Holbrook wrote an official incident report stating that he “used the minimal amount of force necessary to regain control of the subject.” Response (Doc. No. 20-2), Ex. 2 at 4 (internal citation omitted). Second, on July 26, 2017, after DHS sent its denial letter, Agent Holbrook told investigators from the CBP's Office of Professional Responsibility that “he was not sure how [Plaintiff's] fall occurred, denied intentionally tripping [Plaintiff] and called the incident an accident.” Id. (internal citation omitted).

         On March 16, 2018, Agent Holbrook pled guilty to the charge of obstruction of justice. See United States v. Holbrook, 2:17CR03181-001RB, Plea Agreement (Doc. No. 10). In his Plea Agreement, Agent Holbrook admits that “he knowingly falsified his official report by claiming (1) that [Plaintiff] was actively resisting arrest, (2) that Defendant Holbrook used ‘the minimal amount of force necessary', and (3) that [Plaintiff] fell to the floor only because his feet had unintentionally tangled with Defendant Holbrook's.” Id; see also Holbrook, 17CR03181 RB, Plea Agreement at ¶ 7. “As part of the plea offer, the United States agreed that it would not seek to charge the underlying criminal civil rights violation, 18 U.S.C. § 242 (Violation of Rights Under Color of Law).” Response (Doc. No. 20-2), Ex. 2 at 1. On November 27, 2018, Agent Holbrook was sentenced to 12 months and 1-day term of imprisonment. See Holbrook, 2:17CR03181-001RB, Judgment (Doc. No. 36).

         II. LEGAL STANDARD

         Under Federal Rule of Civil Procedure 56, summary judgment is appropriate if a “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party on the issue, ” and “[a]n issue of fact is material if under the substantive law it is essential to the proper disposition of the claim.” Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citations and internal quotations omitted). In reviewing a motion for summary judgment, the Court views “the evidence and its reasonable inferences in the light most favorable to the non-movant.” Id.

         As a sovereign, “[t]he United States and its officers enjoy immunity from suit except in instances where the United States has expressly waived that protection.” Flute v. United States, 808 F.3d 1234, 1239 (10th Cir. 2015). In 1946, Congress enacted the FTCA, which waives the United States' sovereign immunity and permits individuals to sue the government for “personal injury or death caused by the negligent or wrongful act or omission of any employee of the United States while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1); see also Wyodak Res. Dev. Corp. v. United States, 637 F.3d 1127, 1130 (10th Cir. 2011) (the FTCA “waives sovereign immunity and grants subject-matter jurisdiction to the district courts”). The FTCA is the exclusive remedy for tort claims allegedly committed by federal employees when acting in their official capacity. See 28 U.S.C. § 2679(b)(1). Courts must narrowly construe the FTCA's waiver of the United States' sovereign immunity. Lehman v. Nakishian, 453 U.S. 156, 161 (1981).

         Two conditions govern the timing of a FTCA claim: an administrative exhaustion requirement and a statute of limitations requirement. Barnes v. United States, 776 F.3d 1134, 1139 (10th Cir. 2015) (observing the administrative exhaustion requirement and the statute of limitations in the FTCA act as chronological bookends to an FTCA claim). First, under 28 U.S.C. § 2675(a), before bringing an FTCA claim to federal court, a plaintiff must exhaust administrative remedies by filing the claim with the appropriate agency. Bradley v. United States ex. rel. Veterans Admin., 951 F.2d 268, 270 (10th Cir. 1991). Only after the claim is denied in writing by the agency may a plaintiff bring the claim to federal court. McNeil v. United ...


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