Anthony J Romero V United States Of America

Key Facts

Issues

• Whether the FTCA's intentional tort exception bars the plaintiff's negligence claim under the circumstances alleged, including analysis of whether the exception applies when the injury was directly caused by an assault facilitated by government negligence.
• Whether the plaintiff sufficiently alleged a private party analogue under Oklahoma law to establish jurisdiction under the FTCA, requiring demonstration that conduct by a private individual akin to the government's alleged negligence would constitute a violation of the duty of care under state law.

Holdings

• Plaintiff was granted thirty days to file an Amended Complaint. The Court found no current basis to conclude that amending would be futile, considering his pro se status and specific request. Failure to file an amended complaint within the deadline will result in dismissal without prejudice.
• The Court dismissed Plaintiff's claims without prejudice for failure to establish jurisdiction under the Federal Tort Claims Act (FTCA). Plaintiff failed to allege a sufficient private-party analogue under Oklahoma law, which is required to demonstrate that the United States would be liable in the same manner as a private individual. The Court partially adopted the Magistrate Judge's recommendation, agreeing that jurisdiction was not established but allowing leave to amend.

Remedies

• Plaintiff is granted leave to amend the complaint within 30 days from the date of this order. Failure to do so will result in dismissal without prejudice.
• The Court partially adopts the Magistrate Judge's Report and Recommendation, dismissing Plaintiff's claims without prejudice. Plaintiff must file an Amended Complaint within 30 days or face dismissal without further notice.

Legal Principles

• The plaintiff had to demonstrate that a private party under similar circumstances would be liable under Oklahoma law. The court found that he did not meet this burden, leading to dismissal for lack of subject matter jurisdiction.
• Oklahoma law requires jailers to exercise reasonable care to protect inmates from known or foreseeable dangers. The court referenced this duty in evaluating the plaintiff's negligence claim.
• The court applied the intentional tort exception under 28 U.S.C. §2680(h), which bars claims arising from assault or battery. However, the court noted that negligence by government employees allowing a foreseeable assault might still lead to liability. The exception did not bar the claim, but the plaintiff failed to establish the necessary elements for jurisdiction under the FTCA.

Precedent Name

• United States v. 2121 E. 30th St.
• Pappas v. United States
• Miller v. United States
• Indian Towing Co. v. United States
• Hall v. Bellmon
• Laca v. United States
• Hall v. Miller
• Seiler v. City of Bethany
• Tyler v. United States
• United States v. Olson

Cited Statute

• Federal Tort Claims Act
• Federal Magistrates Act

Judge Name

• David L. Russell
• Suzanne Mitchell

Passage Text

• The Court agrees. Because the Court at this time cannot conclude that an Amended Complaint would be futile... the Court will allow him leave to amend.
• Plaintiff has 'failed to demonstrate that Oklahoma would impose . . . liability on a private individual under like circumstances to those described in [his Complaint], as is jurisdictionally required by § 1346(b) and § 2674.'
• The Court is 'under no obligation' to 'identify any Oklahoma state law that would bar his claim.'