Eads v. United States of America ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Christopher Justin Eads, No. CV 20-00019-TUC-JGZ 10 Plaintiff, ORDER 11 v. 12 United States of America, et al., 13 Defendants. 14 Pending before the Court are Plaintiff’s Objection to Defendant’s Certification of 15 Scope of Employment and Motion for Reconsideration. (Docs. 54, 63.) Plaintiff requests 16 that the Court reconsider its May 12, 2021 ruling substituting the United States for 17 Defendant Jose L. Medina and that the Court conduct a de novo review of the scope of 18 employment certification issued by the Attorney General’s designee. See Pelletier v. Fed. 19 Home Loan Bank of San Francisco, 968 F.2d 865, 875 (9th Cir. 1992) (district court may 20 conduct de novo review of certification). Also pending before the Court are Plaintiff’s 21 Motion for Appointment of Counsel for Limited Purpose, Motion for Limited Discovery, 22 Motion for Evidentiary Hearing, and Motion to Withdraw Interlocutory Appeal. (Docs. 23 55, 56, 57, 76.) The United States filed a response. (Doc. 75.) After de novo review, the 24 Court will deny the motion for reconsideration, overrule Plaintiff’s objection, and deny 25 Plaintiff’s remaining motions. 26 I. Background 27 In his First Amended Complaint Plaintiff asserts tort claims of assault and 28 intentional infliction of emotional distress, under Arizona state law, against Defendant Jose 1 L. Medina, a corrections officer at the United States Penitentiary-Tucson. (Doc. 24 at 19.) 2 Plaintiff alleges that on June 7, 2018, Medina forced Plaintiff into a cell with prisoner, 3 Dustin Miller, and threatened to pepper spray and drag Plaintiff into the cell if he did not 4 enter willingly. (Doc. 24 at 3.) According to the complaint, Medina knew that Plaintiff was 5 a convicted sex offender, and that Miller had voiced his desire to harm or kill a sex offender 6 while in prison. (Doc. 24 at 4.) On June 12, 2018, Miller assaulted Plaintiff, breaking his 7 nose and causing a concussion and various lacerations and contusions around Plaintiff’s 8 face and head. (Doc. 24 at 4.) 9 On April 27, 2021, the United States requested, pursuant to the Federal Tort Claims 10 Act, 28 U.S.C. § 2679(d)(1), that the Court substitute the United States as Defendant in 11 place of Medina for any acts and omissions alleged to have been committed by Medina. 12 (Doc. 50.) The Federal Tort Claims Act is the exclusive remedy “for injury or loss of 13 property, or personal injury or death arising or resulting from the negligent or wrongful act 14 or omission of any employee of the Government while acting within the scope of his office 15 or employment.” 28 U.S.C. § 2679(b)(1). Substitution is proper where the government 16 certifies that the employee was acting within the scope of his employment. Green v. Hall, 17 8 F.3d 695, 698 (9th Cir. 1993). The United States certified that Medina was acting within 18 the scope of his employment as an employee of the Federal Bureau of Prisons (BOP) at the 19 time of the matters giving rise to Plaintiff’s lawsuit. (Doc. 50-1.) The Court granted the 20 government’s motion and substituted the United States as Defendant in place of Medina. 21 (Doc. 53.) 22 Plaintiff asks the Court to reconsider its substitution of the United States for Medina. 23 Plaintiff seeks de novo review of the United States’ certification of Medina’s scope of 24 employment and limited discovery and an evidentiary hearing on that issue. (Docs. 54, 55, 25 56, 57, 63.) 26 II. Standard of Review 27 The Attorney General’s scope-of-employment certification is “is subject to de novo 28 review by the district court.” Pelletier v. Fed. Home Loan Bank of San Francisco, 968 F.2d 1 865, 875 (9th Cir. 1992). The party challenging the certification “bears the burden of 2 presenting evidence and disproving the Attorney General’s decision to grant or deny scope 3 of employment certification by a preponderance of the evidence.” Saleh v. Bush, 848 F.3d 4 880, 889 (9th Cir. 2017). “To rebut the scope certification, a plaintiff must allege sufficient 5 facts in the complaint “that, taken as true, would establish that the employee’s actions 6 exceeded the scope of his employment.” Id. at 889 (cleaned up). 7 Determination of the scope of employment is generally a question of fact. Billings 8 v. United States, 57 F.3d 797, 801 (9th Cir. 1995). To resolve factual disputes, the Court 9 may hold evidentiary hearings and permit limited discovery, but only if the party 10 challenging certification alleges sufficient facts in the complaint that, taken as true, 11 establish the defendant’s act exceeded the scope of employment. Pelletier, 968 F.2d at 12 874; Saleh, 848 F.3d at 892. 13 III. Discussion 14 To determine whether a federal employee acted within the scope of employment, 15 the Court applies the “respondeat superior principles of the state in which the alleged tort 16 occurred.” Green v. Hall, 8 F.3d 695, 698-99 (9th Cir. 1993); see Engler v. Gulf Interstate 17 Eng'g, Inc., 280 P.3d 599, 602 (Ariz. 2012). Under Arizona law, an employee is acting 18 within the scope of their employment when the employee is “(1) subject to the employer’s 19 control or right of control, and (2) acting in furtherance of the employer’s business.” Engler 20 v. Gulf Interstate Engineering, Inc., 259 P.3d 304, 309 (Ariz. Ct. App. 2011); see also 21 Engler v. Gulf Interstate Engineering, Inc., 280 P.3d 599, 602 (Ariz. 2012) (agreeing with 22 the court of appeals that the Restatement (Third) § 7.07 sets forth the appropriate test for 23 evaluating whether an employee is acting within the scope of employment, and adopting 24 that test). “A forbidden or even consciously criminal or tortious act may still be within the 25 scope of employment.” State v. Schallock, 941 P.2d, 1275, 1285 (Ariz. 1997). The question 26 is whether the act of the employee was “at least in part, motivated by the purpose to serve 27 the master rather than solely to serve personal motives unconnected to the master’s 28 business.” Id. at 1283. 1 Accepting Plaintiff’s factual allegations in his complaint as true and applying 2 Arizona law, the Court concludes Medina was acting within the scope of his employment 3 with the Bureau of Prisons for the purposes of certification. It is undisputed that Medina 4 was employed by the BOP and on duty at a BOP prison at the time he allegedly transferred 5 Medina into a cell with Miller. Thus, Medina was subject to the BOP’s control at the time 6 of the incident. Plaintiff does not allege that Medina was acting for “purely personal and 7 self-gratifying reasons,” at the time of the cell transfer. In fact, Plaintiff acknowledges that 8 Medina may have had “cause, justification, or authorization” to move Medina into the cell 9 with Miller. (Doc. 54 at 15.) Moreover, even if Medina were to have been acting in part, 10 for personal reasons, his conduct would still fall within his scope of employment. See 11 Schallock, 941 P.2d at 1283 (stating that the acts of the employee need only be “in part, 12 motivated by a purpose to serve the master”). 13 For the foregoing reasons, the Court will deny Plaintiff’s motion to reconsider, and 14 Plaintiff’s objection to, the Court’s acceptance of the government’s certification of 15 Medina’s scope of employment. The Court will also deny Plaintiff’s requests for limited 16 discovery and an evidentiary hearing. See Saleh, 848 F.3d at 892 (stating that limited 17 discovery or an evidentiary hearing are necessary only if Plaintiff alleges sufficient facts 18 that a defendant’s actions were outside his or her scope of employment). 19 IV. Motion for Appointment of Counsel 20 Plaintiff seeks appointment of counsel if his motions for limited discovery or an 21 evidentiary hearing are granted. Because the motions will be denied, the Court will deny 22 the motion for appointment of counsel as moot. 23 V. Motion to Withdraw Interlocutory Appeal 24 On May 27, 2021, Plaintiff appealed this Court’s May 12, 2021 ruling substituting 25 the United States for Defendant Jose L. Medina. (Doc. 66.) On June 11, 2021, the Ninth 26 Circuit dismissed Plaintiff’ appeal for lack of jurisdiction. Because the Ninth Circuit 27 dismissed Plaintiff’s appeal, the Court will deny the motion to withdraw the appeal as 28 moot. 1|| VI. Conclusion 2 IT IS ORDERED that Plaintiff's Motion for Reconsideration is DENIED. (Doc. || 63.) 4 IT IS FURTHER ORDERED that Plaintiffs Objection to Defendant’s 5 || Certification of Scope of Employment (Doc. 54), Motion for Limited Discovery (Doc. 55), || Motion for Evidentiary Hearing (Doc. 56), and Motion for Appointment of Counsel for || Limited Purpose (Doc. 57) are DENIED. 8 IT IS FURTHER ORDERED that Plaintiff’s Motion to Withdraw Plaintiff’s 9|| Interlocutory Appeal (Doc. 76) is DENIED as moot. 10 Dated this 26th day of July, 2021. 11 12 □ 13 pote Soipe 4 ; Honoral le Jennife □□□□□ United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-