Martinez v. United States

Armando Nieves Martinez, et al., Plaintiffs, v. United States of America, Defendant.

No. CV-13-00955-TUC-CKJ (LAB)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

July 9, 2018

ORDER

On October 11, 2017, the Magistrate Judge issued a Report and Recommendation ("R&R") (Doc. 150) in which she recommended that this Court deny Plaintiffs' Motion for Summary Judgment (Doc. 127). After the R&R issued, the Government filed objections (Doc. 151), Plaintiffs a response (Doc. 152), and the Government a reply (Doc. 153).

The Government's Motion for Summary Judgment asks the Court to dismiss Plaintiffs' claims under the Federal Tort Claims Act ("FTCA") of negligence, gross negligence, assault, false imprisonment, and intentional infliction of emotional distress. The allegations stem from a U.S. Border Patrol checkpoint stop, interrogation, and incarceration, in which the Plaintiffs were accused of transporting methamphetamine. (Doc. 20 at 2-6.) Ultimately, no drugs were found in Plantiffs' vehicle. (Id. at 7.) The Government contends the actions of Border Patrol agents lie within the discretionary function exception, precluding any liability under the FTCA. (Doc. 127 at 1.) Upon review, the Court finds that Plaintiffs' claims are precluded, and grants the Government's Motion for Summary Judgment as to Plaintiffs' claims of negligence, gross negligence, assault, and false imprisonment. However, the Court finds Plaintiffs' intentional infliction of emotional distress claim raises a genuine issue of material fact and is not precluded under FTCA. The Court, therefore, denies summary judgment as to this issue.

Standard of Review

• Objections to R&R

The standard of review that is applied to a magistrate judge's report and recommendation is dependent upon whether a party files objections - the Court need not review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 150 (1985). However, the Court must "determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). Nonetheless, "while the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard." Thomas, 474 U.S. at 154.

• Summary Judgment

A court must grant summary judgment "if the 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A genuine dispute exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the moving party carries "the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for themoving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). However, if the burden rests on the non-moving party, "the moving party need only prove that there is an absence of evidence to support the non-moving party's case." In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir. 2010).

If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But, if the movant meets its initial responsibility, the burden shifts to the nonmovant to demonstrate the existence of a factual dispute and to show the fact in contention is material—i.e., a fact that might affect the outcome of the suit under the governing law—and that the dispute is genuine. Anderson, 477 U.S. at 248, 250; see also Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its favor, First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, it must "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); see Fed.R.Civ.P. 56(c)(1).

At summary judgment, the judge's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. In its analysis, the court must believe the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255. "The court need consider only the cited materials, but it may consider any other materials in the record." Fed.R.Civ.P. 56(c)(3). If, after considering the arguments and materials in the record, it appears that jurors of reason could find by a preponderance of the evidence that the defendant is liable, then the court should not grant summary judgment. Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1027-28 (9th Cir. 2008). If, however, jurors of reason could not determine that plaintiff is entitled to a judgment in his favor, then summary judgment is appropriate. Id. at 1028.

Under this standard, the Court is only to consider admissible evidence. Moran v. Selig, 447 F.3d 748, 759-60 (9th Cir. 2006) (pleading and opposition must be verified toconstitute opposing affidavits); FDIC v. New Hampshire Ins. Co., 953 F.2d 478, 484 (9th Cir. 1991) (declarations and other evidence that would not be admissible may be stricken). A "genuine" issue of "material" fact cannot be created by a party simply making assertions in its legal memoranda. See Varig Airlines v. Walter Kidde & Co., 690 F.2d 1235, 1238 (1982). Indeed, a "conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact." Nilsson v. City of Mesa, 503 F.3d 947, 952 n.2 (9th Cir. 2007). Moreover, statements must allege personal knowledge. See Skillsky v. Lucky Stores, Inc., 893 F.2d 1088, 1091 (9th Cir. 1990) ("Like affidavits, deposition testimony that is not based on personal knowledge and is hearsay is inadmissible and cannot raise a genuine issue of material fact sufficient to withstand summary judgment."). Speculation is not competent evidence. Huggins v. Deinhard, 134 Ariz. 98, 104, 654 P.2d 32, 38 (App. 1982); Nelson v. Pima Cmty. College, 85 F.3d 1075, 1081-82 (9th Cir. 1996) ("mere allegation and speculation do not create a factual dispute for purposes of summary judgment"); Soremekun, 509 F.3d at 985 (conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment).

Factual and Procedural History

The parties do not object to the Magistrate Judge's factual determinations. The Court has reviewed and adopts the Magistrate Judge's factual and procedural history.

Federal Tort Claims Act and the Discretionary Function Exception

The FTCA "is the exclusive remedy for tortious conduct by the United States." Federal Deposit Ins. Corp. v. Craft, 157 F.3d 697, 706 (9th Cir. 1998); 28 U.S.C. § 2679. Under the FTCA, liability may be imposed "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); see also United States. v. Olsen, 546 U.S. 43, 44 (2005).

However, this Court may not exercise jurisdiction over FTCA claims in which the United States has not "unequivocally expressed" that it has waived its sovereign immunity. United States v. White Mt. Apache Tribe, 537 U.S. 465, 472 (2003). Inaddition, the factual allegations in a petitioner's claim must "fall[] within the terms of the waiver." Id. The United States' maintains sovereign immunity when a claim arises under the discretionary function exception. This exception applies to:

[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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 be abused.

28 U.S.C. § 2680(a) (emphasis added).

"In order to determine whether the discretionary function exception applies, the court must engage in a two-step inquiry." Nurse v. United States, 226 F.3d 996, 1001 (9th Cir. 2000). The threshold question for the court is "whether the challenged conduct involves an element of judgment or choice." Id. "The requirement of judgment or choice is not satisfied if a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow, because the employee has no rightful option but to adhere to the directive." United States v. Gaubert, 499 U.S. 315, 322 (1991) (internal citations and quotations omitted). However, an agency's conduct involves an element of choice when "no statute or agency policy dictates the precise manner in which the agency is to complete the challenged task." Green v. United States, 630 F.3d 1245, 1249-50 (9th Cir. 2011) (citing Childers v. United States, 40 F.3d 973, 976 (9th Cir. 1995)).

If the conduct involved a choice, the second part of the inquiry is "whether that judgment is of the kind that the discretionary function...