Anthony v. United States

KEVIN D. ANTHONY, Plaintiff, v. UNITED STATES OF AMERICA Defendant.

CASE NO. 3:19-cv-05337-BJR

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT TACOMA

November 2, 2020

REDACTED

ORDER GRANTING IN PART AND DENYING IN PART UNITED STATES' MOTION FOR SUMMARY JUDGMENT AND MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND GRANTING PLAINTIFF LEAVE TO FILE A MOTION TO AMEND COMPLAINT

I. INTRODUCTION

On November 5, 2015, U.S. Army Ranger Specialist Jesse M. Suhanec absented himself from Joint Base Lewis-McChord ("JBLM") just south of Tacoma, Washington and shot Plaintiff Kevin D. Anthony, a civilian, multiple times while Mr. Anthony sat in his truck. While Mr. Anthony survived the attack, he was grievously injured and has been left with permanent disability. He now sues the United States and seeks to recover damages alleging that the event occurred as a result of the negligence of Army personnel.

Before the Court are two motions brought by Defendant United States. First, the United States seeks dismissal of Plaintiff's claims on the grounds of lack of subject matter jurisdiction. Second, the United States seeks summary judgment. United States' Mot. for Summ. J. and Mot. to Dismiss for Lack of Subject Matter Jurisdiction, Dkt. No. 27 ("Mot.").¹ Additionally, should the Court grant the United States' Motions, Plaintiff seeks leave to amend his Complaint. Pl.'s Resp. to United States' Mot. for Summ. J. and Mot. to Dismiss for Lack of Subject Matter Jurisdiction ("Resp."), Dkt. No. 45 at 37. Having reviewed the Motions, the opposition thereto, the record of the case, and the relevant legal authorities, the Court will grant the United States' Motion and grant Plaintiff leave to file a Motion to Amend Complaint. The reasoning for the Court's decision follows.

II. BACKGROUND

The facts of this case are, for the most part, uncontested. Suhanec was first inducted into the United States Army in 2011. Mot. at 2-3. It is uncontested that, at that time, the Army recruiter who inducted him identified signs that should have disqualified him from recruitment, [Redacted] ² but failed to disqualify him. Resp. at 7-8 (citing Decl. of James J. Raffa, Ex. 1, Dkt. No. 49 at 111:12-22 ("Dep. of Jesse Suhanec")).³ Nevertheless, Suhanec went on to serve honorably in the armed forces, joining an elite Ranger unit and deploying twice to Afghanistan as part of Operations Enduring Freedom and Freedom's Sentinel, where he earned the Afghanistan Campaign Medal, the North Atlantic Treaty Organization ("NATO") Medal for service with NATO and the International Security Assistance Force, a CombatInfantryman Badge, and a Good Conduct Medal. Mot. at 4-5.

Suhanec returned to the United State from his second deployment to Afghanistan in May 2015. Id. at 5. He was assigned the post of Unit Armorer at JBLM, which entails managing the arms room where weapons and ammunition are stored, including the firearm he used in his attack on Mr. Anthony. Id. at 6. In order to be assigned this position, the United States claims Suhanec had to go through a selection process by his superiors, training, a background check, and security screening, all of which did not indicate that Suhanec was a security risk. Id. At the same time, however, Suhanec began receiving mental health and behavioral care from the military after reporting [Redacted] . Mot. at 8-10.

According to the agreed account of what occurred, on the morning of the attack, November 5, 2015, Suhanec [Redacted] , after which he obtained a 9mm handgun and ammunition from the Unit Armory and a large van using his army privileges. Compl., Dkt. No. 1 ¶ 2.2-2.3; Mot. at 10; Resp. at 1, 5. He then drove into Lakewood, Washington, where he encountered Mr. Anthony. Compl. ¶¶ 2.1, 2.4. According to Plaintiff, Suhanec demanded his truck and, when he did not comply, Suhanec shot nine rounds into the truck using the 9mm handgun, wounding Mr. Anthony five times in the head, chest, and arms. Id. ¶ 2.5.

On October 24, 2016, Suhanec pled guilty to two counts of attempted first-degree robbery, two counts of second-degree assault, attempted residential burglary, and attempted vehicle theft in the Superior Court of Washington, Pierce County. Mot. at 11; see also Connaroe Decl., Dkt. No. 29-2 (Statement of Defendant on Plea of Guilty to Non-Sex Offense). Based on his plea, Suhanec was sentenced to six years confinement. Mot. at 11.

On April 24, 2019, Plaintiff filed the present suit pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., claiming that the Army's negligence was responsible for his injuries. Compl., Dkt. No. 1. Specifically, Plaintiff alleges six instances of negligence on the part of Army personnel in the run-up to the shooting, which he claims negligently contributed to the Army's failure to recognize Suhanec's danger and prevent him from obtaining the means to carry out his attack. See Resp. at 4-6. These include the following:

The recruitment of Suhanec in 2011 by the Army recruiter despite the recruiter's identification of signs that should have disqualified Suhanec from recruitment and the recruiter's alleged instruction to Suhanec to cover up those signs to avoid disqualification. See also id. at 7-8.

Suhanec's assignment as Unit Armorer by his Chain of Command despite not meeting the training requirements for the position. See also id. at 8-10. According to Plaintiff, Suhanec did not receive the proper training until nearly three months after assuming the post, the anxiety from which contributed to his mental health issues.

The failure of two mental and behavioral health specialists, social worker Gordon Retterath and Physician's Assistant Captain Jeffrey Wittkopp, to order an evaluation of Suhanec's fitness for duty once they allegedly identified disqualifying signs of mental and behavioral health issues prior to the attack. See also id. at 11-17.

The failure of now-Staff Sargent, then-Specialist, Kyle E. Cassidy to report concerning behavior by Suhanec prior to the day of the shooting, including extended absences from the Armory without justification and signs of increased stress and agitation. See also id. at 17-19. At the time of the incident, Cassidy served as Assistant Unit Armorer subordinate to Suhanec.

Cassidy's failure to prevent Suhanec from removing the firearm and ammunition from the Armory the day of the attack. See also id. at 19-21.

The provision by Specialist Brian Palmer of keys to the van used by Suhanec during his attack, despite Suhanec's failure to give adequate reason to use an Army vehicle. See also id. at 22-24.

As indicated supra, Defendants moved to dismiss Plaintiff's claims under both FederalRules of Civil Procedure ("FRCP") 12(b)(1) for lack of subject-matter jurisdiction and FRCP 56 pursuant to summary judgment. Mot., Dkt. No. 27.

III. MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

A. Legal Standard

The United States moves to dismiss most of Plaintiff's claims arguing that the Court lacks subject matter jurisdiction. Mot. at 18-24. Under FRCP 12(b)(1), a complaint must be dismissed where the court lacks subject matter jurisdiction. FED. R. CIV. P. 12(b)(1). According to the United States, many of the actions Plaintiff challenges fall within the discretionary function exception to the FTCA, depriving the Court of subject matter jurisdiction. As the Court is obligated to ensure it has jurisdiction before it can proceed to the merits of the case, the Court addresses the Motion to Dismiss first.

B. Discretionary Function Exception to the Federal Tort Claims Act

"The United States is immune from suit unless it unequivocally consents." Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1327 (2020) (citing United States v. Navajo Nation, 556 U.S. 287, 289 (2009)). Sovereign immunity is "jurisdictional in nature" and, as such, there is no subject matter jurisdiction unless sovereign immunity has been waived. DaVinci Aircraft, Inc. v. United States, 926 F.3d 1117, 1127 (9th Cir. 2019) (quoting FDIC v. Meyer, 510 U.S. 471, 475 (1994)).

Under the FTCA, the government has waived its sovereign immunity for "civil actions on claims against the United States, for money damages . . . for . . . personal injury . . . caused by the negligent or wrongful act or omission of any employee of the Government. . .." 28 U.S.C. § 1346(b)(1). The FTCA, however, contains several exceptions which, when met, restore sovereignimmunity. The operative exception in this case is the discretionary function exception, which provides that the FTCA's waiver of immunity shall not apply to "[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 . . .." 28 U.S.C. § 2680(a); see also Kim v. United States, 940 F.3d 484, 487 (9th Cir. 2019). The "point of the exception," is to "'prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy.'" Kim, 940 F.3d at 487 (quoting Berkovitz v. United States, 486 U.S. 531, 536-37 (1988)). It is the United States' burden to demonstrate that the exception applies. Id.

Judicial determination of the applicability of the discretionary function exception occurs in two steps. First, the Court determines "whether the challenged actions involve an element of judgment or choice." Kim, 940 F.3d at 487 (quoting Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008)). This requirement is not met where a "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Berkovitz, 486 U.S. at 536. "If there is such a statute or policy directing mandatory and specific action, the inquiry comes to an end because there can be no element of discretion when an employee 'has no rightful option but to adhere to the directive.'" Terbush, 516 F.3d at 1129 (quoting Berkovitz, 486 U.S. at 536).

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