Romero v. United States of America et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ANTHONY J. ROMERO,
Plaintiff,
v.
UNITED STATES OF AMERICA
et al.,
Defendants.
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Case No. CIV-24-1233-R
REPORT AND RECOMMENDATION
Plaintiff Anthony J. Romero, a federal prisoner appearing pro se and
proceeding in forma pauperis, brings this action seeking monetary damages
under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80.
Doc. 1.1 United States District Judge David L. Russell referred this matter to
the undersigned Magistrate Judge for initial proceedings consistent with 28
U.S.C. § 636(b)(1)(B) and (C). Doc. 5. The undersigned recommends the Court
dismiss (1) El Reno Federal Correctional Institute (FCI-El Reno) as a
Defendant, and (2) Plaintiff’s call-button claim for lack of subject matter
jurisdiction.
1 Citations to a court document are to its electronic case filing designation
and pagination. Quotations are verbatim unless indicated.
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I. Plaintiff’s claims and procedural background.
On September 26, 2023, Plaintiff alleges his cellmate, Gabriel Vasquez,
attacked him while in the Special Housing Unit at FCI-El Reno. Doc. 1, at 5.
During the attack, Plaintiff “defended [himself] to the best of [his] ability”
considering the lack of “distress call buttons” in the cells, but ultimately
sustained injuries to his neck and back. Id. According to Plaintiff, Special
Investigative Services Technician Malia Curnutt orchestrated the attack as
part of a plot to “get [Mr. Vasquez] back into the good graces of the Norteno
gang.” Id. Plaintiff alleges that Ms. Curnutt participated in this scheme to
preserve a “romantic relationship” with Mr. Vasquez. Id. Officials allegedly
fired Ms. Curnutt for engaging in this relationship. Id.
Plaintiff describes the incident as “clear negligence and a deliberate
attack set up by [FCI-El Reno] staff that resulted in injury.” Id. Plaintiff names
the United States and FCI-El Reno as Defendants, asserting two negligence
claims: first for “assist[ing] in setting up an attack on [him] by a member of
[his] former gang,” and second for “no distress call buttons in [FCI-El Reno]
Special Housing Unit[] cells.” Id. at 7, 9-10. He seeks relief of $1,000,000 in
monetary damages for each claim. Id. at 9-10.
Plaintiff first sought relief for his claims when he filed a complaint in
this Court on September 30, 2024. Romero v. United States, No. CIV-24-1011-
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R, Doc. 1 (W.D. Okla. Oct. 30, 2024) (Romero I). The Court dismissed the
complaint without prejudice for failure to exhaust administrative remedies. Id.
Doc. 7. Plaintiff then brought this action on November 25, 2024, in compliance
with the Court’s instruction.2 Doc. 1.
II. Screening.
The Court must screen Plaintiff’s complaint and dismiss it, or any part
of it, if it is frivolous or malicious, fails to state a claim upon which relief may
be granted, or seeks monetary relief from a defendant who is immune from
such relief. See 28 U.S.C. §§ 1915(e)(2), 1915A.
In conducting this review, the Court must accept Plaintiff’s allegations
as true and construe them, and any reasonable inferences to be drawn from
the allegations, in the light most favorable to him. Kay v. Bemis, 500 F.3d 1214,
1217 (10th Cir. 2007). Although the Court liberally construes a pro se litigant’s
pleadings, Haines v. Kerner, 404 U.S. 519, 520 (1972), “[t]he burden is on the
plaintiff to frame a ‘complaint with enough factual matter (taken as true) to
suggest’ that he or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d
2 The Court found Plaintiff “must proceed by filing a new complaint”
because his claim had not yet been constructively denied at the time of filing
his first complaint. Romero I, Doc. 7. On November 5, 2024, Plaintiff received
a letter denying his claim, Doc. 1, Att. 5, thus exhausting his administrative
remedies.
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1242, 1247-48 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007)). The allegations in a complaint must present “enough facts to
state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
The Court may find a claim is frivolous “where it lacks an arguable basis either
in law or in fact” or is “based on an indisputably meritless legal theory.” Neitzke
v. Williams, 490 U.S. 319, 325, 327 (1989).
III. The Court should dismiss FCI-El Reno as a Defendant because
the only proper defendant in an FTCA suit is the United States.
Congress has explicitly provided that the only proper party in an action
under the FTCA is the United States, not an agency or its employees. See 28
U.S.C. § 2679(a); see also Smith v. United States, 561 F.3d 1090, 1093 (10th
Cir. 2009) (“[A]n FTCA claim can only be brought against the United States.”).
Plaintiff brings his claims under the FTCA, Doc. 1, at 2, and so the United
States is the only proper defendant, see 28 U.S.C. § 1346(b)(1); Franklin Sav.
Corp. v. United States, 180 F.3d 1124, 1142 (10th Cir. 1999) (explaining “the
FTCA remedy is exclusive” and holding a “federal agency cannot be sued in its
own name” (quoting F.D.I.C. v. Meyer, 510 U.S. 471, 476 (1994))). The
undersigned therefore recommends the Court dismiss FCI-El Reno as a
Defendant.
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IV. The Court should dismiss Plaintiff’s call-button claim for lack of
subject-matter jurisdiction.
The United States can be sued only if it consents. See Meyer, 510 U.S. at
475 (“Absent a waiver, sovereign immunity shields the Federal Government
and its agencies from suit.”); Block v. North Dakota, 461 U.S. 273, 287 (1983)
(“The basic rule of federal sovereign immunity is that the United States cannot
be sued at all without the consent of Congress.”). The FTCA “waive[s] the
sovereign immunity of the United States for certain torts committed by federal
employees acting within the scope of their employment.” Brownback v. King,
592 U.S. 209, 212 (2021) (quoting Meyer, 510 U.S. at 475-76); see also 28 U.S.C.
§ 1346(b)(1).
Plaintiff brings two negligence claims under the FTCA. See, e.g.,
Brownback, 592 U.S. at 210 (“The [FTCA] allows a plaintiff to bring certain
state-law tort suits against the Federal Government.”); 28 U.S.C. § 2674 (“The
United States shall be liable, respecting the provisions of this title relating to
tort claims, in the same manner and to the same extent as a private individual
under like circumstances . . . .”). But federal courts only have subject-matter
jurisdiction over FTCA claims “if they are actionable under [28 U.S.C.]
§ 1346(b).” Brownback, 592 U.S. at 212 (quoting Meyer, 510 U.S. at 477). For
an FTCA claim to be actionable, a plaintiff must allege a claim: (1) “against the
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United States”; (2) “for money damages”; (3) “for injury or loss to property, or
personal injury or death”; (4) “caused by the negligent or wrongful act or
omission of any employee of the Government”; (5) “while acting within the
scope of his office or employment”; and (6) “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.” Id. (quoting
§ 1346(b)). While “[i]n most cases, a plaintiff’s failure to state a claim under
[Fed. R. Civ. P.] 12(b)(6) does not deprive a federal court of subject-matter
jurisdiction . . . in the unique context of the FTCA, all elements of a meritorious
claim are also jurisdictional.” Id. at 217. “So even though a plaintiff need not
prove a § 1346(b)(1) jurisdictional element for a court to maintain subject-
matter jurisdiction over his claim, . . . a plaintiff must plausibly allege all six
FTCA elements not only to state a claim upon which relief can be granted but
also for a court to have subject-matter jurisdiction over the claim.” Id.
The government is not liable under the FTCA unless state law recognizes
comparable liability for private persons. See 28 U.S.C. § 1346(b)(1); United
States v. Olson, 546 U.S. 43, 46 (2005) (explaining that the FTCA waives the
federal government’s sovereign immunity only where state law would make a
private person liable, not where state law would make a public entity liable,
even where “uniquely governmental functions” are at issue). The party
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asserting jurisdiction “bears the burden of proof to establish that the court
possesses subject-matter jurisdiction based upon analogous Oklahoma private
liability.” Pappas v. United States, 617 F. App’x 879, 882 (10th Cir. 2015).
The Court should dismiss Plaintiff’s call-button claim because he has not
alleged a private analogue for it. Here, Plaintiff bears the burden of identifying
an appropriate private party analogue under Oklahoma law. See id. at 882-83
(“Even if specific behavior is statutorily required of a federal employee, the
government is not liable under the FTCA unless state law recognizes a
comparable liability for private persons.” (quoting Ayala v. United States, 49
F.3d 607, 610 (10th Cir. 1995))). But he has “failed to demonstrate that
Oklahoma would impose . . . liability on a private individual under ‘like
circumstances’ to those described in [his complaint].” See id. at 883. Nowhere
in Plaintiff’s complaint does he “demonstrate that conduct by a private person
akin to that alleged in his complaint would constitute a violation of the duty of
care under Oklahoma law,” which, as a plaintiff in an FTCA action, is his
obligation. Id. at 882.
Additionally, the “discretionary function” exception to the FTCA’s waiver
of sovereign immunity bars Plaintiff’s call-button claim. 28 U.S.C. § 2680(a).
This exception applies to situations involving an element of judgment or choice
“based on considerations of public policy.” United States v. Gaubert, 499 U.S.
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315, 323 (1991) (quoting Berkovitz v. United States, 486 U.S. 531, 537 (1988)).
“[T]he housing of inmates and the placement of emergency call buttons in
[prison] facilities” meet the discretionary function exception. Staples v. Dewalt,
2009 WL 1505560, at *8 (E.D. Ky. May 27, 2009) (citing Montez v. Hearlson,
359 F.3d 392 (6th Cir. 2004)).
So the Court should dismiss Plaintiff’s call-button claim.
VI. Recommendation and notice of right to object.
The undersigned recommends that the Court dismiss with prejudice
Defendant FCI-El Reno and dismiss without prejudice Plaintiff’s emergency
call-button claim.
The undersigned advises Plaintiff of his right to file an objection to this
Report and Recommendation with the Clerk of Court on or before January
21, 2025, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The
undersigned further advises Plaintiff that failure to file a timely objection to
this Report and Recommendation waives his right to appellate review of both
factual and legal issues contained herein. See Moore v. United States, 950 F.2d
656, 659 (10th Cir. 1991).
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This Report and Recommendation does not terminate the referral to the
undersigned Magistrate Judge in the captioned matter.
ENTERED this 30th day of December, 2024.
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