Donato Dalrymple v. United States

Citations: 460 F.3d 1318; 2006 U.S. App. LEXIS 20922; 2006 WL 2355585Docket: 05-14375

Court: Court of Appeals for the Eleventh Circuit; August 16, 2006; Federal Appellate Court

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The case concerns the execution of search and administrative warrants by Immigration and Naturalization Service (INS) agents for the removal of Elian Gonzalez from his great-uncle's home in Miami on April 22, 2000. Plaintiffs, who were present during the warrant execution, filed a complaint under the Federal Tort Claims Act (FTCA) against the United States, alleging injuries from the INS agents’ use of force, including gas and physical aggression. The appellants include Mirtha Maria Falcon and her children, alongside Alexei Torres, Angela Taina Toro, and Carlos R. Zayas, collectively referred to as the 'dismissed plaintiffs.' They challenge the district court's dismissal of their claims for lack of subject matter jurisdiction and argue against the court's conclusion that the agents’ actions were objectively reasonable. The court affirmed the district court’s judgment. Additionally, it noted that Conception Maria Cabral, who also had her claims dismissed for lack of jurisdiction, was not a listed appellant on the Notice of Appeal but would be subject to the same legal analysis. The background details include Elian’s arrival in the U.S., his custody situation, the INS's refusal to consider asylum petitions, and the circumstances surrounding the execution of the warrants, during which the appellants allege excessive force and misconduct by the agents.

Each appellant filed an administrative claim (Standard Form 95) with the United States Department of Justice on April 22, 2002, two years after their claims accrued. They attached an amended complaint from a previous case, Dalrymple v. Reno, where fifty-two plaintiffs sought $100 million for constitutional violations related to the custody of Elian Gonzalez. Most appellants claimed $250,000 on their SF-95s, while dismissed plaintiffs did not specify any amount. After the government did not respond within six months, the appellants filed claims under the Federal Tort Claims Act (FTCA) in federal court. The government moved to dismiss claims from those who did not provide a sum certain, arguing lack of jurisdiction due to noncompliance with statutory prerequisites. The district court dismissed these claims based on the magistrate’s recommendation.

For the majority of remaining appellants (the 'summary judgment plaintiffs'), the court granted summary judgment to the government, determining that the use of tear gas or pepper spray was a reasonable and privileged response under Florida law, given evidence that many protestors interfered with federal agents executing warrants. However, for the 'trial plaintiffs'—those not on the Gonzalez property or advancing towards it but who were gassed at close range—the court found a factual question regarding the reasonableness of force used. After a six-day bench trial, the court ruled in favor of the government, concluding that the trial plaintiffs did not provide sufficient evidence that the use of force was unreasonable. The court supported its findings with videotape evidence that corroborated the agents’ testimonies, reaffirming that the circumstances for the trial plaintiffs were not significantly different from those of the summary judgment plaintiffs, thus establishing that the use of gas was objectively reasonable.

The trial plaintiffs' claims of assault and battery and intentional infliction of emotional distress under the Federal Tort Claims Act (FTCA) were dismissed, leading the district court to rule in favor of the government. The appellants raised two issues on appeal: 1) whether the district court improperly dismissed the claims due to lack of subject matter jurisdiction, specifically for failing to provide a sum certain in their administrative claims prior to filing suit; and 2) whether the district court erred in determining that the use of tear gas by agents during warrant execution was objectively reasonable, despite violating INS policies.

The FTCA allows for limited waivers of the United States' sovereign immunity but requires claimants to first file an administrative claim with the appropriate agency, which must include a sum certain for damages. The claim must be filed within two years from its accrual. The dismissed plaintiffs admitted they did not provide a sum certain with their initial filings but argued that additional documentation submitted could have allowed the government to ascertain a sum certain. They contended that the filing of ninety-seven additional SF-95 forms, which included a sum certain, sufficiently notified the government and met FTCA jurisdictional requirements. Moreover, they claimed that their corrections to the omission, made within a month of the initial filings, should be considered adequate despite not being completed within the two-year limit, asserting that the government faced no prejudice from the delay. The court noted a somewhat lenient interpretation of the 'sum certain' requirement.

Under the Federal Tort Claims Act (FTCA), claimants must explicitly state a sum certain or provide sufficient documentation for the government to estimate their damages. The government argues that the documentation submitted by the dismissed plaintiffs does not meet this requirement, and the court agrees. Each claimant must individually satisfy the jurisdictional prerequisites for filing a claim under the FTCA, as established by 28 U.S.C. § 2675(a). In cases involving multiple claimants, each must present a specific damage amount for their claim. The court finds that the claims of the remaining ninety-seven claimants do not fulfill the statutory requirements for the dismissed plaintiffs, who failed to state a sum certain.

The Dalrymple v. Reno complaint attached by the dismissed plaintiffs lacks the specificity required to ascertain individual damages, unlike the medical bills in the precedent case Molinar v. United States, which provided clear damage amounts. The Dalrymple complaint offers only a total damage figure without breaking it down per claimant, making it insufficient to meet FTCA criteria. Furthermore, the dismissed plaintiffs’ attempt to estimate their claims by dividing the total amount of the Dalrymple complaint contradicts their stated claim of $250,000 each.

The court also concludes that correcting the omission of a sum certain after the expiration of the two-year statute of limitations does not remedy the jurisdictional deficiency, despite the government not being prejudiced by the late correction. A proper sum certain or supporting documentation must be submitted within the statute of limitations to establish jurisdiction for an FTCA suit, and the failure to do so bars the court from hearing the claims.

A claim stating a sum certain is essential for a court to have jurisdiction over suits against the United States under the Federal Tort Claims Act (FTCA). In Cizek v. United States, the failure to provide a sum certain within the two-year statute of limitations resulted in a lack of subject matter jurisdiction, leading to the dismissal of claims from plaintiffs who did not meet this requirement. 

Regarding the use of force, the remaining appellants argue that the district court incorrectly determined that the use of tear gas by agents was objectively reasonable and not actionable under Florida tort law. They contend this use violated INS policies and procedures, suggesting it should lead to tort liability. However, even assuming the violation of policy occurred, the appellants did not demonstrate that such a violation constituted a tort under Florida law. The FTCA does not create new causes of action and only permits liability for torts recognized by state law. 

The district court, adopting the magistrate judge's recommendations, found that the agents' actions were justified as reasonable force under Florida law, referencing section 776.05, which permits law enforcement to use necessary force during lawful arrests. The magistrate judge noted that evidence showed many protestors obstructed the INS officers during the execution of warrants, further supporting the district court's ruling.

The magistrate judge determined that the gas gun was deployed solely in response to threats from demonstrators, who aggressively advanced towards Gonzalez’s property and disregarded agents' commands to retreat. The use of the gas gun was justified when demonstrators surged forward and hurled objects at the agents. The district court found that the demonstrators' actions constituted obstruction, warranting the use of pepper spray or tear gas, which was deemed objectively reasonable. The trial plaintiffs argued that the district court erred in stating that the gas gun contained oleoresin capsicum (OC spray) rather than 0-chlorobenzalmalononitrile (CS gas). However, after reviewing the trial transcript, the findings of the district court were upheld as supported by trial testimony. The reviewing court found no clear error in the district court’s fact-finding, emphasizing that conflicting evidence requires resolution by the trial court. Consequently, the district court's judgment favoring the government was affirmed.