United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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. On July 24, 2018, DHS answered the
March 7, 2019, the United States filed a motion for summary
judgment 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.
filed his response on March 21, 2019. The United States replied on
April 4, 2019.
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. On May 14, 2019,
the Court granted Plaintiff's Motion to
response to the Court's request that the parties
supplement their briefing on equitable tolling, Plaintiff
filed an additional brief on June 3, 2019,  and the United
States filed an additional brief on June 13,
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. Because Plaintiff untimely filed his
federal case, and equitable tolling does not apply, the Court
will grant the United States' Motion for Summary
FACTS & PROCEDURAL HISTORY
following facts are taken from Plaintiff's Complaint, the
United States' Motion for Summary Judgment, and
Plaintiff's Response. In addition, the Court takes
judicial notice of documents filed in the federal court
docket in Agent Holbrook's criminal case.
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.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. 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
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
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.
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
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).
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.
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.
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
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.