United States District Court, M.D. Louisiana
HORNSBY, MAGISTRATE JUDGE.
MAURICE HICKS, JR., CHIEF UNITED STATES DISTRICT JUDGE.
the Court are two motions filed by Defendant, the United
States of America (“Defendant”). The first motion
is a Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1). See Record Document 31. The
second motion is a Motion for Summary Judgment. See
Record Document 30. Plaintiff Summer Hunter
(“Hunter” or “Plaintiff”) opposes
both motions. See Record Documents 34 & 57. For
the following reasons, Defendant's Motion to Dismiss is
GRANTED and Defendant's Motion for
Summary Judgment is also GRANTED.
AND PROCEDURAL BACKGROUND
matter arises out of the execution of an arrest warrant by
the United States Marshal Service (“USMS”)
Fugitive Task Force (“Task Force”). On July 29,
2015, the Task Force sought to arrest Lawrence Blackburn
(“Blackburn”) who was wanted for first degree
murder that left one person dead and another in “grave
condition.” Record Document 57-3 at 29; see
also Record Document 1 at 2. After receiving information
that Blackburn was visiting a relative in a Baton Rouge
apartment complex, United States Marshal Brian Lucio
(“Lucio”) developed an operational plan.
See Record Document 1 at 2. The plan included five
United States Marshals-Brian Benton (“Benton”),
Clayton McDonough (“McDonough”), Shawn Delaney
(“Delaney”), John Barker (“Barker”),
and David Grunewald (“Grunewald”)-and 15 to 20
local law enforcement officers from the East Baton Rouge
Parish Sheriff's Office (“EBRSO”) and the
Baton Rouge Police Department (“BRPD”).
See Record Document 31-1 at 2. Benton served as the
team leader and was authorized to modify or change the
operational plan as needed. See id. at 3; see
also Record Document 57-3 at 80.
plan was to send Delaney and Grunewald ahead of the others to
establish a perimeter around the apartment complex to prevent
Blackburn's escape. See Record Document 31-1 at
5; see also Record Document 57-3 at 34. The
remaining law enforcement officers were to travel in a column
formation with the EBRSO and BRPD leading and the Task Force
members following behind. See Record Document 31-1
at 5. Upon arrival at the apartment complex, the local law
enforcement officers were responsible for securing the area.
See id. Once the perimeter was secure, the Task
Force would attempt to contact Blackburn “through any
means without breaching the apartment in order to get him to
surrender.” Id. at 6; see also Record
Document 57-3 at 59. These attempts included contacting
Blackburn via cell phone or using the public address system
in the law enforcement vehicles. See Record Document
31-3 at 6. Ultimately, if contact could not be made without
breaching the apartment, BRPD would enter the apartment with
the Task Force securing the perimeter. See id.
mission was going according to plan until the EBRSO and BRPD
officers leading the column formation to the apartment
complex made a wrong turn. See id. at 7; see
also Record Document 57-4 at 46-47. With no radio
communication between the Task Force vehicles and EBRSO and
BRPD, the Task Force broke off from the column and drove to
the apartment complex. See Record Document 31-1 at
7. At this point, Benton decided to deviate from the
operational plan because the Task Force no longer had the
assistance of EBRSO and BRPD to secure the perimeter. See
id. Furthermore, Benton was concerned Blackburn would
escape if the Task Force did not immediately secure the
designated apartment. See Record Document 57-4 at
arrival at the apartment complex, Benton and Barker went
directly to the designated apartment located on the second
floor-Apartment 6-positioning themselves side-by-side on the
balcony, but short of the apartment's window.
See Record Document 31-1 at 7; see also
Record Document 57-5 at 26. Grunewald was on the opposite
side of Apartment 6, facing Benton and Barker. See
Record Document 30-2 at 3. Delaney moved from the perimeter
to the first floor of the apartment building, eventually
positioning himself directly below Apartment 6. See
Record Document 30-2 at 2.
the Task Force was in position, Benton knocked on the
apartment's window, announcing their presence and
directing everyone out of the apartment. See id. at
3; see also Document 57-4 at 64. Erica Blackburn and
her boyfriend quickly complied with Benton's commands and
were taken to the side of the building with McDonough.
See Record Document 30-2 at 3. Hunter and Blackburn
remained in the apartment. See id. While in the
apartment, Hunter glanced back at Blackburn “trying to
put his shoe on with a gun.” Record Document 30-11 at
2. After a few minutes, Hunter and Blackburn exited the
apartment. See Record Document 30-11 at 5. Hunter
was “screaming” and failed to obey the Task
Force's commands. Record Document 57-4 at 67-68.
Blackburn followed soon thereafter and stood directly behind
Hunter. See id. at 68-69.
remaining events are in dispute; however, both parties agree
that Blackburn had a gun in his right hand that was pointed
downward as he exited the apartment and stood directly behind
Hunter. See Record Documents 30-1 & 57-1. Benton
and Barker both testify that they saw Blackburn raise his arm
towards them and point a gun in their direction. See
Record Document 57-5 at 29, 64; see also Record
Document 57-4 at 69- 70. Delaney testifies that he observed
Hunter fall in the direction where Blackburn's gun was
oriented. See Record Document 57-6 at 55. Benton
testifies he then took cover while Barker fired his weapon.
See Record Document 57-4 at 70. Delaney then attests
that he had a clear shot of Blackburn once Hunter has fallen,
and at that point Delaney fired his gun at Blackburn.
See Record Document 57-6 at 57-58. The gunfire
lasted only a “matter of seconds, ” during which
Hunter was shot in the back of her right calf. Record
Document 57-6 at 62; see also Record Document 1 at
brought the instant suit under the Federal Torts Claim Act
(“FTCA”) alleging negligence against the USA.
See Record Document 1. Hunter asserts two negligence
claims: (1) negligence in changing the operational plan
(hereinafter “pre-shooting negligence”) and (2)
negligent wounding by Barker. See id. Defendant
filed a motion to dismiss the pre-shooting negligence claim
under Federal Rule of Civil Procedure 12(b)(1) for lack of
subject matter jurisdiction. See Record Document 31.
In addition, Defendant moved for summary judgment on the
negligent wounding claim. See Record Document 30.
Hunter filed an opposition to both motions. See
Record Documents 34 & 57. Defendant filed replies.
See Record Documents 44 & 40.
Motion to Dismiss A. Rule 12(b)(1)
filed pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure permit a party to challenge the subject matter
jurisdiction of the district court to hear the case. Courts
may dismiss a lawsuit for lack of subject matter jurisdiction
on any one of three different bases: “(1) the complaint
alone; (2) the complaint supplemented by undisputed facts in
the record; or (3) the complaint supplemented by undisputed
facts plus the court's resolution of disputed
facts.” Ramming v. United States, 281 F.3d
158, 161 (5th Cir. 2001). The party asserting jurisdiction
bears the burden of proof for a Rule 12(b)(1) motion to
dismiss. See id.
12(b)(1) challenges to subject matter jurisdiction come in
two forms: “facial” attacks and
“factual” attacks. Paterson v.
Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). A
“facial” attack is limited to the pleadings and
requires the trial court to assume the allegations as true.
Id. A “factual” attack challenges the
existence of subject matter jurisdiction in fact,
irrespective of the pleadings, and matters outside the
pleadings-such as testimony and affidavits-may be considered.
Id. Because the parties have submitted evidence
outside the pleadings, Defendant's Motion to Dismiss is a
“factual” attack, and the Court will consider the
evidence in the record, resolving any disputed facts.