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Pinedo v. United States

United States District Court, D. Utah, Central Division

December 4, 2018

FABIAN MALDONADO PINEDO, Plaintiff,
v.
UNITED STATES OF AMERICA, and JON MARTINSON, JR., Defendants.

          ORDER AND MEMORANDUM DECISION DENYING WESTFALL PETITION

          TENA CAMPBELL U.S. DISTRICT COURT JUDGE.

         This 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.

         Agent Martinson has filed a petition under the Westfall Act (his Westfall Petition)[1] 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.[2] The Government opposes the petition. For the reasons set forth below, the court denies Agent Martinson's petition.

         PROCEDURAL BACKGROUND AND LEGAL FRAMEWORK

         When 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).[3] 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).[4]

         Substitution 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).

         The 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 his employment.

         The 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.[5] (See Apr. 25, 2018 Minute Entry, ECF No. 85.)

         To that 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).

         Now, 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.

         FINDINGS OF FACT[6]

         The Incident

         On July 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.

         Agent 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 training.

         After 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.

         Then 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.

         Mr. 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.

         Agent 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, 154:21.)

         Given 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.

         He 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.)

         Use of 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.)

         Agent 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 flag.

         While 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" ...


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