United States District Court, D. Utah, Central Division
ORDER AND MEMORANDUM DECISION DENYING WESTFALL
CAMPBELL U.S. DISTRICT COURT JUDGE.
case arises out of an injury that Plaintiff Fabian Maldonado
Pinedo sustained in July 2013 when he was an immigration
detainee awaiting deportation by the United States
Immigration and Customs Enforcement agency (ICE). According
to Mr. Maldonado, when he was being transferred from one cell
to another at the holding facility-during which he was fully
restrained by leg shackles, a belly chain and
handcuffs-Immigration Enforcement Agent (IEA) and Defendant
Jon Martinson, Jr., threw him headfirst to the concrete floor
to punish him for questioning Agent Martinson's
authority. Mr. Maldonado brings a tort claim of assault and
battery and a civil rights claim of excessive force.
Martinson has filed a petition under the Westfall Act (his
Westfall Petition) in which he seeks certification that the
United States, as his employer at the time, must substitute
itself for him and defend against Mr. Maldonado's tort
claim of assault and battery. The Government opposes the
petition. For the reasons set forth below, the court denies
Agent Martinson's petition.
BACKGROUND AND LEGAL FRAMEWORK
Mr. Maldonado filed his assault and battery claim against
Agent Martinson, he also named the United States as a
defendant under the Federal Tort Claims Act
(FTCA). He did this because when a federal
employee is accused of committing a tort while acting within
the scope of his employment, the United States may substitute
itself for the federal employee and defend against the claim.
28 U.S.C. § 2679(d)(1).
is not automatic. Under the Westfall Act, the U.S. Attorney
General must first certify that the employee was acting
within the scope of his employment when he allegedly
committed the tort.
Upon certification by the Attorney General that the
defendant employee was acting within the scope of his office
or employment at the time of the incident out of which the
claim arose, any civil action or proceeding commenced upon
such claim in a United States district court shall be deemed
an action against the United States ... and the United
States shall be substituted as the party defendant.
Id. (emphasis added).
employee sets the substitution process in motion by filing a
request for certification with his employer. 28 U.S.C. §
2675(a). In December 2016, Agent Martinson did that, but the
United States denied his request because it determined he was
not acting within the scope of his employment when he took
Mr. Maldonado down to the ground. After the Government's
denial, Agent Martinson filed a Westfall Petition with this
court seeking certification, under Section 2679(d)(3) of the
Westfall Act, that he was indeed acting within the scope of
parties, whose briefs treated Agent Martinson's Westfall
Petition like a summary judgment motion, argued their
positions at the court's April 2018 hearing. The United
States relied heavily on the surveillance video of the
incident and the declaration of its expert witness. At the
close of the hearing, the court found that the video did not
definitively show what occurred on that day and that
genuinely disputed material facts could only be resolved
after an evidentiary hearing. Such a hearing would allow the
parties to develop a more complete record and allow the court
to evaluate witness credibility. (See Apr. 25, 2018
Minute Entry, ECF No. 85.)
end, the court held a two-day evidentiary hearing in July
2018. The parties presented testimony of lay witnesses,
including Mr. Maldonado and Agent Martinson, and testimony of
competing expert witnesses. Other evidence included the
surveillance camera footage of the incident (Gov't Exs. A
& B), photos of the detention center (Gov't Ex. D), a
copy of ICE's Use of Force Policy (Gov't Ex. H), and
a summary of an ICE defensive tactics course titled "Arm
Bar Takedown, Grounded Positions" (Martinson Ex. 12).
based on an evaluation of the record and witness credibility,
the court finds, for the reasons set forth below, that Agent
Martinson has not met his burden to establish that he was
acting within the scope of his employment.
3, 2013, Mr. Maldonado was being held by ICE at its Decker
Lake detention facility awaiting transport to the local
county jail later that day. He was in a holding cell (Cell 5)
with eight other men.
Martinson was on duty, acting as the team lead. He had been
an IEA for sixteen months, all of which were spent at the
Decker Lake facility. Before that, he received four months of
the detainees had been processed, Agent Martinson went to the
holding cell to do a routine head count before transporting
them to the jail. He saw Mr. Maldonado standing next to the
door and asked a control room officer to electronically
unlock the door.
Agent Martinson, who was not armed, opened the cell door and
told Mr. Maldonado to sit down. According to Agent Martinson,
Mr. Maldonado immediately took a "bladed stance"
and stared at him (he "looked me up and down").
(Tr. 141:13-17, 191:7-11.) When Mr. Maldonado did not say
anything, Agent Martinson repeated his command in Spanish.
Maldonado said, in English, something to the effect of
"What if I don't want to sit down?" or
"Why do I need to?" (Tr. 141:18-22, 298:18-299:3.)
Agent Martinson responded that he was not asking, he was
telling him to sit down, that Mr. Maldonado was a guest in
his facility, and that Mr. Maldonado needed to obey his
commands. But Mr. Maldonado did not sit down. Instead, he
slowly circled the center bench with his hands behind his
back, looking at Agent Martinson for part of the time as he
did so. Agent Martinson called this "mad dogging,"
which he viewed as a sign of disrespect. (Tr. 154:21.) Then,
Agent Martinson testified, Mr. Maldonado said, as he was
pacing, "Oh, I'm a guest in your house, am I,"
to which Agent Martinson replied "yes." (Tr.
142:2-16.) Mr. Maldonado admits that he failed to comply with
the order or command, paced around the cell, and did not sit
down until after Agent Martinson had closed the cell door.
Martinson characterized Mr. Maldonado's actions and
statements as "red flags." Specifically, he pointed
to the "bladed stance," Mr. Maldonado's
response suggesting he would not follow the order, Mr.
Maldonado's choice to pace rather than sit down, and the
staring ("mad dogging"). (Tr. 142:20-25, 143:1-5,
these red flags, Agent Martinson decided to separate Mr.
Maldonado from the group and place him in another cell (Cell
1). He said he was worried that "the other detainees
were going to think that it was okay to defy or to not obey
commands" and he did not want the situation to escalate
to the point where he lost control. (Tr. 143:8-9.) He had
been trained to separate a detainee who was "possible
trouble." (Tr. 144:5.) He closed the cell door,
retrieved latex gloves, and called for back-up.
testified that he decided to fully-restrain Mr. Maldonado
because his "main concern" was his
"safety." (Tr. 146:16.) Full restraint means the
detainee's legs are shackled with a chain, a belly chain
is placed around his waist, and wrists are handcuffed and
attached to the belly chain. Agent Martinson said he made
that decision because Mr. Maldonado "displayed all of
these defiant and noncompliant behaviors. I took his size
into consideration. He was taller and appeared to be larger
than I was. And I just wanted to take every precaution at
that time that I could so that I could escort him safely from
cell 5 to cell 1." (Tr. 146:16-21.)
full restraints on a detainee who is not being transported
from one facility to another was very uncommon. Mr. Steven
Branch (Agent Martinson's expert witness), when asked
about the use of full restraints within the building,
replied, "I wouldn't say it's the norm. It's
not standard procedure." (Tr. 54:4-5.)
Martinson re-opened the door and ordered Mr. Maldonado out of
the cell. Mr. Maldonado complied without hesitation or
resistance. The backup agents had not yet arrived. He then
ordered Mr. Maldonado to face the wall and kneel on the metal
bench in front of Cell 5. Mr. Maldonado, who was not
restrained, faced the wall and casually leaned against the
window with his arms. At first Mr. Maldonado only placed one
knee on the bench. According to Agent Martinson, Mr.
Maldonado also gave him a "100-yard stare for several
seconds before he decided to place his second knee on the
bench." (Tr. 146:8-9.) That interaction is not visible
on the video. Agent Martinson interpreted this as another red
Mr. Maldonado waited, unrestrained, Agent Martinson, who was
alone with Mr. Maldonado, turned his back on Mr. Maldonado
and went to a cabinet to retrieve leg restraints. Agent
Martinson testified that that was a mistake and that it was
"probably not" the "most prudent action."
(Tr. 144:21-145:10.) Although Agent Martinson testified that
he had "no excuse" ...