Brown v. United States, Civ. No. 09-1058 JCH/ACT

DEBORAH BROWN, Individually and on Behalf of her Minor Children, H.B.and B.S., Plaintiff,

v.UNITED STATES OF AMERICA, Defendant.

Civ. No. 09-1058 JCH/ACT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Dated: March 14, 2012

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on Defendant United States of America's Motion to Dismiss and/or for Summary Judgment, filed December 23, 2010 [Doc. 82]. After carefully considering the motion, briefing,¹ and relevant law, and being otherwise fully informed, the Court finds that Defendant United States of America's motion is well taken and should be GRANTED.

BACKGROUND

The tragic events giving rise to this case occurred on June 10, 2007, when Jeremy Brown ("Brown") twice shot his estranged wife, Plaintiff Deborah Brown, before turning his gun on himself and committing suicide.² At the time of the shooting, Brown worked as a police officer for the Pueblo of Laguna Police Department ("LPD"). On the day of the shooting, Brown was neither on call nor on duty. Although not authorized to do so, he took his assigned police unit toPlaintiff's residence in Mcintosh, New Mexico, which is located outside of the boundaries of the Pueblo of Laguna. Once there, Brown used his service weapon to shoot his estranged wife and himself.

For several months prior to the incident, Brown had been despondent over the breakdown of his marriage to Plaintiff. This despondency worsened in the weeks leading up to the incident, to the point that Brown expressed suicidal ideation. Brown took leave from his job from May 16 through May 25, 2007. On May 17, 2007, Plaintiff accompanied Brown to Kaseman Presbyterian Hospital ("Kaseman") where he voluntarily sought admission for his severe depression and suicidal thoughts. According to medical records from the May 17 hospital visit, Brown had been expressing suicidal ideation for approximately two weeks, and specifically planned to use his service weapon to take his life. See Ex. 4, attached to Pl. Resp. [Doc. 87] at 1. The record is unclear as to how long Brown was at Kaseman on his initial visit, or under what circumstances he was released. However, on May 21, 2007, Brown again checked himself into Kaseman and medical records indicate that he continued to experience suicidal thoughts. See id. at 2-3. Brown stayed at Kaseman from May 21 through May 23, 2007. The Acting Chief of Police of the Pueblo of Laguna Police Department, Michelle Ray ("Acting Chief Ray"), was aware that Brown had been admitted to Kaseman during this time, but claims that she was not informed of the exact nature of Brown's medical problems prior to the shooting. Conversely, Plaintiff contends that either Acting Chief Ray or some other supervisor at the LPD was advised of the specific problems that led to Brown's hospitalization. On May 23, Brown was discharged from Kaseman and received a release from his healthcare provider, Dr. Robert Kellogg, to return to full duty, without restrictions, on May 26, 2007. See Ex. 4, attached to Deft. Mot. [Doc. 82], at 4.

Plaintiff contends that, following his hospitalization, Brown should never have beenallowed back to work, where he had access to his duty weapon, without being administered a full independent fitness for duty examination by a qualified mental healthcare professional specially trained in evaluating the fitness for duty of emotionally disturbed law enforcement officers. Plaintiff contends that failure to require such an examination prior to allowing Brown to return to duty violated standard and recognized law enforcement procedures and constituted negligence on the part of the LPD. Defendant argues that the LPD has no requirement that an officer such as Brown be referred for a fitness for duty evaluation, and that no federal law or regulation mandates such a requirement.

Plaintiff's suit is brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80. Defendant has moved to dismiss the case or for summary judgment on three bases: (1) at the time of the incident, Brown was not acting as a federal law enforcement officer, so that the exception to the waiver of sovereign immunity for certain intentional torts contained in 28 U.S.C. § 2680(h) applies to prevent a claim; (2) because the negligence claims raised by Plaintiff are considered to have arisen out of the assault and battery by Brown, they are likewise barred by 28 U.S.C. § 2680(h); and (3) Plaintiff's claims are barred by the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a).³

LEGAL STANDARD

Defendant has moved to dismiss this case pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, or, in the alternative, for summary judgment. In general, a plaintiff bears the burden of demonstrating this Court's jurisdiction to hear her claims. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182-89 (1936). This holds true as well when the United States is a defendant, i.e., a party bringing suit against the United States bears the burden of proving that the government has waived its sovereign immunity. See James v. United States, 970 F.2d 750, 753 (10th Cir. 1992). Under the doctrine of sovereign immunity, the United States is immune from suit except to the extent that it has consented to be sued. See Smith v. United States, 507 U.S. 197, 200 (1993). The "terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Mitchell, 445 U.S. 535, 538 (1980). Because the FTCA constitutes a waiver of the United States' immunity, its provisions must be strictly construed. See Hart v. Dep't of Labor ex rel. United States, 116 F.3d 1338, 1339 (10th Cir. 1997). When the United States has waived its immunity from suit, a court should neither narrow the waiver nor "take it upon [itself] to extend the waiver beyond that which Congress intended." Smith, 407 U.S. at 203. Whether or not the Government has consented to a particular type of suit is a threshold jurisdictional issue and, if a court concludes that the United States has not waived its immunity to suit in a particular matter, the court does not have jurisdiction to hear the case, and it must be dismissed under Fed. R. Civ. P. 12(b)(1). See Franklin v. United States, 992 F.2d 1492, 1495 (10th Cir. 1993).

When reviewing a challenge to its subject matter jurisdiction, the Court does not assume the truthfulness of the complaint's factual allegations, but instead has wide discretion to allow affidavits and other documents to resolve disputed jurisdictional facts. See Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Thus, a Rule 12(b)(1) motion, unlike a Rule 12(b)(6)motion, can include references to evidence extraneous to the complaint without converting it to a Rule 56 summary judgment motion. See Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th Cir. 1987). However, a Rule 12(b)(1) motion must be converted to a Rule 56 motion "when resolution of the jurisdictional question is intertwined with the merits of the case." Holt, 46 F.3d at 1003. The jurisdictional question is considered intertwined with the merits of the case when the court's subject matter jurisdiction is conditioned upon the same statute that provides the substantive claim in the case. See Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 978 (10th Cir. 2002). In this case, the jurisdictional and substantive issues are both dependent upon the FTCA and are inextricably intertwined, requiring resolution of whether Brown was a federal law enforcement officer and whether Plaintiff's negligence claims arise out of her assault. Thus, the Court will treat this as a motion for summary judgment pursuant to Rule 56. See Bell v. United States, 127 F.3d 1226, 1228 (10th Cir. 1997).

Summary judgment is appropriate if "the record contains no evidence of a genuine issue of material fact and demonstrates that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 247 (1986); Woodman v. Runyon, 132 F.3d 1330, 1337 (10th Cir. 1997); Fed. R. Civ. P. 56(c). The Court views the record and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. Thomas v. Int'l Bus. Machs., 48 F.3d 478, 484 (10th Cir. 1995). The moving party has the initial burden of showing that there is no genuine issue of material fact. Anderson, 477 U.S. at 256. Once the moving party has met its burden, the non-moving party must do more than merely show that there is some doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party may not rest on mere allegations or denials of the pleadings, but must set forth specific facts showing a genuine issue for trial. Anderson, 477U.S. at 248, 256. Although the Court views the evidence and draws all inferences in the light most favorable to the party opposing summary judgment, that party still "must identify sufficient evidence which would require submission of the case to a jury." Mares v. ConAgra Poultry Co., 971 F.2d 492, 494 (10th Cir. 1992). Unsupported allegations, conclusory in nature, are insufficient to defeat a proper motion for summary judgment. Anderson, 477 U.S. at 248.

ANALYSIS

The FTCA gives federal district courts jurisdiction over claims for money damages against the United States "for injury or loss of property...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." 28 U.S.C. § 1346(b). However, this broad grant of jurisdiction is subject to several limitations. One of these limitations is found in 28 U.S.C. § 2680(h), which provides that the United States retains...