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Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 1 of 27
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`REDACTED
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`UNITED STATES DISTRICT COURT FOR THE
`WESTERN DISTRICT OF WASHINGTON
`AT TACOMA
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`KEVIN D. ANTHONY,
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`Plaintiff,
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`v.
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`UNITED STATES OF AMERICA
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`Defendant.
`____________________________________)
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`CASE NO. 3:19-cv-05337-BJR
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`ORDER GRANTING IN PART AND
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`DENYING IN PART UNITED
`MOTION FOR SUMMARY JUDGMENT
`AND MOTION TO DISMISS FOR LACK
`OF SUBJECT MATTER JURISDICTION
`AND GRANTING PLAINTIFF LEAVE TO
`FILE A MOTION TO AMEND
`COMPLAINT
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`I.
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`INTRODUCTION
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`On November 5, 2015, U.S. Army Ranger Specialist Jesse M. Suhanec absented himself
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`from Joint Base Lewis-
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`JBLM
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`Plaintiff
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`Kevin D. Anthony, a civilian, multiple times while Mr. Anthony sat in his truck. While Mr.
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`Anthony survived the attack, he was grievously injured and has been left with permanent disability.
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`He now sues the United States and seeks to recover damages alleging that the event occurred as a
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`result of the negligence of Army personnel.
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`Before the Court are two motions brought by Defendant United States. First, the United
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`States seeks dismissal of
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`on the grounds of lack of subject matter jurisdiction.
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`Second, the United States seeks summary judgment.
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`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 2 of 27
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`1 Additionally, should
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`seeks
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`R
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`, Dkt. No. 45 at 37. Having reviewed the Motions, the opposition thereto,
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`the record of the case, and the relevant legal authorities, the Court will grant
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`Motion and grant Plaintiff leave to file a Motion to Amend Complaint. The reasoning for the
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`II.
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`BACKGROUND
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`The facts of this case are, for the most part, uncontested. Suhanec was first inducted into
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`the United States Army in 2011. Mot. at 2 3. It is uncontested that, at that time, the Army recruiter
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`who inducted him identified signs that should have disqualified him from recruitment,
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`2 but failed to disqualify him. Resp. at 7 8 (citing Decl. of
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`James J. Raffa, Ex. 1, Dkt. No. 49 at 111:12 22
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`3 Nevertheless,
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`Suhanec went on to serve honorably in the armed forces, joining an elite Ranger unit and deploying
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`Medal for service with NATO and the International Security Assistance Force, a Combat
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`1 Pursuant to motion and Court order, the parties have filed large sections of their briefing under seal. See Dkt. Nos.
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`(Order Granting Mot.
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`ny reference to those will be redacted in this Order. An unredacted version of this Order will be filed under seal.
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`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 3 of 27
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`Infantryman Badge, and a Good Conduct Medal. Mot. at 4 5.
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`Suhanec returned to the United State from his second deployment to Afghanistan in May
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`2015. Id. at 5. He was assigned the post of Unit Armorer at JBLM, which entails managing the
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`arms room where weapons and ammunition are stored, including the firearm he used in his attack
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`on Mr. Anthony. Id. at 6. In order to be assigned this position, the United States claims Suhanec
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`had to go through a selection process by his superiors, training, a background check, and security
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`screening, all of which did not indicate that Suhanec was a security risk. Id. At the same time,
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`however, Suhanec began receiving mental health and behavioral care from the military after
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`reporting
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`. Mot. at 8 10.
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`According to the agreed account of what occurred, on the morning of the attack, November
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`5, 2015, Suhanec
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`, after which he
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`obtained a 9mm handgun and ammunition from the Unit Armory and a large van using his army
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`privileges. Compl., Dkt. No. 1 ¶ 2.2 2.3; Mot. at 10; Resp. at 1, 5. He then drove into Lakewood,
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`Washington, where he encountered Mr. Anthony. Compl. ¶¶ 2.1, 2.4. According to Plaintiff,
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`Suhanec demanded his truck and, when he did not comply, Suhanec shot nine rounds into the truck
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`using the 9mm handgun, wounding Mr. Anthony five times in the head, chest, and arms. Id. ¶ 2.5.
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`On October 24, 2016, Suhanec pled guilty to two counts of attempted first-degree robbery,
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`two counts of second-degree assault, attempted residential burglary, and attempted vehicle theft in
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`the Superior Court of Washington, Pierce County. Mot. at 11; see also Connaroe Decl., Dkt. No.
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`29-2 (Statement of Defendant on Plea of Guilty to Non-Sex Offense). Based on his plea, Suhanec
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`was sentenced to six years confinement. Mot. at 11.
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`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 4 of 27
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`On April 24, 2019, Plaintiff filed the present suit pursuant to the Federal Tort Claims Act
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`et seq., claiming that the
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`his
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`injuries. Compl., Dkt. No. 1. Specifically, Plaintiff alleges six instances of negligence on the part
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`of Army personnel in the run-up to the shooting, which he claims negligently contributed to the
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`ing the means to carry
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`out his attack. See Resp. at 4 6. These include the following:
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`The recruitment of Suhanec in 2011 by the Army recruiter despite the
`identification of signs that should have disqualified Suhanec from recruitment and
`the
`disqualification. See also id. at 7 8.
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`as Unit Armorer by his Chain of Command despite not
`meeting the training requirements for the position. See also id. at 8 10. According
`to Plaintiff, Suhanec did not receive the proper training until nearly three months
`after assuming the post, the anxiety from which contributed to his mental health
`issues.
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`The failure of two mental and behavioral health specialists, social worker Gordon
`an
`allegedly identified disqualifying
`signs of mental and behavioral health issues prior to the attack. See also id. at 11
`17.
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`The failure of now-Staff Sargent, then-Specialist, Kyle E. Cassidy to report
`concerning behavior by Suhanec prior to the day of the shooting, including
`extended absences from the Armory without justification and signs of increased
`stress and agitation. See also id. at 17 19. At the time of the incident, Cassidy
`served as Assistant Unit Armorer subordinate to Suhanec.
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`failure to prevent Suhanec from removing the firearm and ammunition
`from the Armory the day of the attack. See also id. at 19 21.
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`The provision by Specialist Brian Palmer of keys to the van used by Suhanec during
`uate reason to use an Army vehicle.
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`See also id. at 22 24.
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`As indicated supra, Defendants moved to dismiss Plaintiff s claims under both Federal
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`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 5 of 27
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`
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`Rules of Civil Procedure ( FRCP ) 12(b)(1) for lack of subject-matter jurisdiction and FRCP 56
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`pursuant to summary judgment. Mot., Dkt. No. 27.
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`III. MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
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`A. Legal Standard
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`The United States moves to dismiss most of
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`s claims arguing that the Court lacks
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`subject matter jurisdiction. Mot. at 18 24. Under FRCP 12(b)(1), a complaint must be dismissed
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`where the court lacks subject matter jurisdiction. FED. R. CIV. P. 12(b)(1). According to the United
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`States, many of the actions Plaintiff challenges fall within the discretionary function exception to
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`the FTCA, depriving the Court of subject matter jurisdiction. As the Court is obligated to ensure
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`it has jurisdiction before it can proceed to the merits of the case, the Court addresses the Motion
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`to Dismiss first.
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`B. Discretionary Function Exception to the Federal Tort Claims Act
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`The United States is immune from suit unless it unequivocally consents. Maine Cmty.
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`Health Options v. United States, 140 S. Ct. 1308, 1327 (2020) (citing United States v. Navajo
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`Nation, 556 U.S. 287, 289 (2009)). Sovereign immunity is
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`there is no subject matter jurisdiction unless sovereign immunity has been waived. DaVinci
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`Aircraft, Inc. v. United States, 926 F.3d 1117, 1127 (9th Cir. 2019) (quoting FDIC v. Meyer, 510
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`U.S. 471, 475 (1994)).
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`Under the FTCA, the government has waived its sovereign immunity
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`civil actions on
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`claims against the United States, for money damages . . . for . . . personal injury . . . caused by the
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`negligent or wrongful act or omission of any employee of the Government. . ..
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`1346(b)(1). The FTCA, however, contains several exceptions which, when met, restore sovereign
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`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 6 of 27
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`immunity. The operative exception in this case is the discretionary function exception, which
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`provides that the FTCA
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`. . . based upon the
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`exercise or performance or the failure to exercise or perform a discretionary function or duty on
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`the part of a federal agency or an employee of the Government . . ..
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` 28 U.S.C. § 2680(a); see also
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`Kim v. United States, 940 F.3d 484, 487 (9th Cir. 2019).
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`prevent judicial second-guessing of legislative and administrative decisions grounded in social,
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`economic, and political policy.
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`Kim, 940 F.3d at 487 (quoting Berkovitz v. United States, 486
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`U.S. 531, 536 37 (1988)
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`Id.
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`Judicial determination of the applicability of the discretionary function exception occurs in
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`two steps. First, the Court determines whether the challenged actions involve an element of
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`judgment or choice. Kim, 940 F.3d at 487 (quoting Terbush v. United States, 516 F.3d 1125,
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`1129 (9th Cir. 2008)). This requirement is not met where
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`If there is such a statute or policy directing mandatory and specific action, the inquiry comes to
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` Berkovitz, 486 U.S. at 536.
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`b
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` Terbush, 516 F.3d at 1129 (quoting Berkovitz, 486 U.S. at 536).
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`If, however
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`proceeds to the second step; determining whether that judgment or choice is of the kind that the
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`discretionary function exception was designed to shield Kim, 940 F.3d at 487 (quoting Terbush,
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`516 F.3d at 1129). The Supreme Court has explained that the exception was designed only to
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`shield governmental action based on considerations of public policy. Berkovitz, 486 U.S. at 539.
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`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 7 of 27
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`This consideration does not rest on the subjective intent of the governmental agent but, rather,
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`United States v. Gaubert, 499 U.S.
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`315, 325 (1991). That is, t
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`must be susceptible to some consideration of social,
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`economic, or political policy.
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`Kim, 940 F.3d at 487 (9th Cir. 2019) (quoting Chadd v. United
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`States, 794 F.3d 1104, 1109 (9th Cir. 2015)). The focus of the inquiry is whether the actions
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`themselves are susceptible to a policy analysis, not whether the government
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`actually took
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`such public policy judgements into consideration when making the decision Morales v. United
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`States, 895 F.3d 708, 713 (9th Cir. 2018) (quoting Miller v. United States, 163 F.3d 591, 593 (9th
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`Cir. 1998)).
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`In re
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`Glacier Bay, 71 F.3d 1447, 1451 (9th Cir. 1995); see, e.g., Jahr v. United States, 259 F. Supp. 3d
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`1158, 1163 68 (W.D. Wash. 2017)
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`not whether the
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`Government as a whole had discretion at any point, but whether its allegedly negligent agents did
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`in each instance
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`ach separate action . . . to determine whether the
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`specific actor had discretion of a type Congress intended to shield.
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`In re Glacier Bay, 71 F.3d at
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`1451.
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`C. Individual Acts of Alleged Negligence
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`The Court examines five out of six of the allegedly negligent acts of Army personnel. See
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`supra at [X]. As to the sixth, the United States concedes
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`to follow a non-discretionary Army regulation requiring Suhanec to complete training prior to
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`taking the post of
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`an
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`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 8 of 27
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`the Court has subject matter jurisdiction over
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`claim.
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`1.
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`Plaintiff claims that the unnamed recruiter who inducted Suhanec in 2011 failed to follow
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`non-discretionary Army regulations setting recruitment standards after he identified signs that
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`should have disqualified Suhanec from recruitment. Resp. at 7 8. Based on the violation of
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`mandatory Army regulations, Plaintiff argues that the Court need not proceed past the first step of
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`discretionary function analysis because there was no element of discretion afforded to the recruiter.
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`The United States argues that the operative versions of the regulations in place at the time
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`on which Plaintiff relies
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`Instruction 6130.03 and Chapter 2 of the
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`-501, do not provide a
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`discretion to determine whether
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`Suhanec was fit for induction into military service. Reply at 14 15, 16; see also Suppl. Decl. of
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`Maj. Richard Connaroe, Ex. N, Dkt. No. 62-1 (DoD Instruction 6130.03: Medical Standards for
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`Appointment, Enlistment, or Induction in the Military Services) DoD Instruction 6130.03 ;
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`Suppl. Decl. of Maj. Richard Connaroe, Ex. O, Dkt. No. 62-2 (AR 40-501: Standards of Medical
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`Fitness)
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`-
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`.
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`The Court finds that the discretionary function exception does not apply. The Army
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`indications of
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`. T
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`in operation
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`at the time removed any discretion as to whether this was a disqualification. Upon examination,
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`the then-current versions of both DoD Instruction 6130.03 and Chapter 2 of AR 40-501 provide
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`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 9 of 27
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`Once a recruiter identifies a sign that the Army had determined by regulation should be
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`disqualifying, the judgment of whether to follow that regulation is not a consideration susceptible
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`to discretionary decision making. See Sigman v. United States, 217 F.3d 785, 793 (9th Cir. 2000)
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`further mental and
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`psychiatric review required by fitness standards, including AR 40-501, was not shielded by
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`discretionary function exception).
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`As such, the Court finds it has subject matter jurisdiction over this claim.
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`2. Failure of Mental Health Professionals to Order E
`for Duty
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`Fitness
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`P
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`treatment, Retterath and Wittkopp, were negligent when they observed signs that, according to
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`Plaintiff, required them to refer Suhanec for an assessment of continued fitness to serve pursuant
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`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 10 of 27
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`
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`17. The United States counters that the operative
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`version of the relevant regulation, AR 40-501, contains no specific mandates requiring the mental
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`health professionals to refer Suhanec based on the signs they observed during their treatment.
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`Reply at 15 18. Therefore, the United States argues, the decision as to whether Suhanec was still
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`fit to serve falls within the discretionary function exception.
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`a. Element of Judgment or Choice
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`The standard for retention in the armed services is outlined in Chapter 3 of AR 40-501.
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`AR 40-501
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`[3] gives the various medical conditions and physical defects which
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`may render a Soldier unfit for further milita
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`. Additionally, as Suhanec was an
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`Army Ranger, a separate standard, provided in Chapter 5 of AR 40-501, applied to his retention
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`[C]hapter [5] sets forth medical conditions and physical defects that
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`are caus
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`; id.
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`Medical fitness standards
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`for retention for . . . Ranger duty . Plaintiff claims that, had the mental health professionals
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`concluded as they should have, that Suhanec was unfit to serve in either the Rangers or the military
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`more broadly, he would not have obtained the means to conduct his attack on Plaintiff.
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`Beginning with the more narrow standards applicable to retention as a Ranger, Chapter 5
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`and well-
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`Id. Thus, unlike the enlistment standards
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`which designated a particular disqualifying condition that Suhanec demonstrated, these regulations
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`are couched in non-mandatory terms leaving the judgment as to the continued fitness of a soldier
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`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 11 of 27
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`to serve in the Rangers to the evaluator.
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`The standards for retention in military service in Chapter 3 demonstrate the same discretion
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`to determine whether a soldier is fit to continue to serve. For example, Chapter 3 states that
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`an MEB4
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`fall below retention standards only if the condition has precluded or prevented successful
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`Id. at 31. This section demonstrates two levels of discretion. First, whether
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`a soldier has a disqualifying condition and, second, whether that condition prevents the soldier
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`from performing their duties. This conclusion is supported by the rest of the provision, which
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`[i]n those cases when it is clear the condition is long standing and has not prevented
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`the Soldier from reaching retirement, then the Soldier meets the standard and MEB is not
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`required.
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`Id.
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`For the types of disqualifying conditions which Plaintiff claims Suhanec displayed,5
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`ence of
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`symptoms
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`limitations of
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`Id. at 42 43. Thus, again, the standards do not prescribe a specific
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`4
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`-501 at 144. An
`-term medical condition enables him/her to continue to meet medical retention
`standards, in accordance with military service
`MILITARY HEALTH SYSTEM, Medical Evaluation Board,
`https://www.health.mil/Military-Health-Topics/Conditions-and-Treatments/Physical-Disability/Disability-
`Evaluation/Medical-Evaluation (last visited [X]).
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`5 Namely,
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`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 12 of 27
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`condition which would have disqualified Suhanec from continued service. Instead, the regulations
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`give discretion to treating personnel, such as Retterath and Wittkopp, to determine whether the
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`symptoms they
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`b. Of the Kind the Discretionary Function was Meant to Shield
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`Based on the forgoing, the first discretionary function exception prong is met; the decision
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`whether to refer Suhanec for further evaluation involved an element of choice or judgment. The
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`next step is to determine whether it was the type of discretionary action the exception was designed
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`to shield. Here, Plaintiff can be understood to argue that the mental health professionals were
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`negligent when they observed signs that could potentially disqualify Suhanec for continued
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`service, but failed to refer him to an MEB to determine whether he was still fit to serve.
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`As shown above, the decision whether or not to refer for further evaluation was left by
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`Army regulation to the discretion of the mental health professionals. As the Supreme Court has
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`established governmental policy, as expressed or implied by statute,
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`regulation, or agency guidelines, allows a Government agent to exercise discretion,
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`-
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`501 Chapters 3 and 5 do here, it must be presumed that the agent s acts are grounded in policy
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`Gaubert, 499 U.S. at 324. The decision of whether a soldier is
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`still fit to serve is precisely the type of discretionary decision involving questions of Army policy
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`and allocation of resources the exception was designed to shield. As such, the Court finds that it
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`does not have subject matter jurisdiction over this claim.
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`3. Failure of Mental Health Professionals to Properly Diagnose or Treat Suhanec
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`against the mental health professionals can also be understood as arguing
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`that they failed to properly diagnosis and treat Suhanec, which reads as a claim for medical
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`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 13 of 27
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`negligence. See Compl., ¶¶ 3.5, 3.8; Resp. at 27 28. The argument is that the mental health
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`professionals should have diagnosed Suhanec with an immediately disqualifying condition, treated
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`him differently, or better monitored him once they chose a course of treatment.
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`For claims of medical negligence,
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`rdinary
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`occupational or professional judgments are not protected by the discretionary-function exception.
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`Alfrey v. United States, 276 F.3d 557, 566 (9th Cir. 2002) (citing Sigman, 217 F.3d at 796); see
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`also Fang v. United States, 140 F.3d 1238, 1242 (9th Cir. 1998)
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`not immune
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`from claims which challenge the actual administration of medical care by its employees when the
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`claims do not concern actions which are the product of judgment driven by the consideration of
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`competing policy-
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`original); Trap v. United States, No. 13-cv-00003,
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`2017 WL 8793328, at *34 *35 (C.D. Cal. Oct. 31, 2017); Lyons v. United States, No. 03-cv-244,
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`2007 WL 4553970, at *10 *14 (N.D. Ohio Dec. 19, 2007). Thus in Sigman, the Ninth Circuit
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`held that the discretionary function exception did not shield the government from liability against
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`a negligence suit brought after a recently discharged soldier killed the mental health professionals
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`who provided the diagnosis for which he was discharged from military service. See Sigman, 217
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`F.3d at 795 96. In examining a claim for the failure to diagnose, treat, and control the mentally
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`not. Id. at 795. Thu
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`s claim sounding in medical negligence must survive discretionary
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`-
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`function exception analysis under the reasoning of Sigman.
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`4.
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`stant Unit Armorer,
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`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 14 of 27
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`
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`was negligent when he failed to report that, in the weeks prior to the shooting incident, Suhanec
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`was persistently absent from his post. Resp. at 17 19. According to Plaintiff, Suhanec would
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`frequently absent himself from Unit Armory duty without permission or proper justification and
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`Army regulations required Cassidy to report these absences. The United States seeks dismissal of
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`this claim, arguing that Plaintiff fails to identify a non-discretionary regulatory mandate requiring
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`Cass
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`Reply at 18 19.
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` based on the relative lack of severity of those absences.
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`a. Element of Judgment or Choice
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`Plaintiff relies on a web of intersecting Army regulations and the Uniform Code of Military
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`As Plaintiff argues
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`offense. See Uniform Code of Military Justice, § 892, art. 92, 10 U.S.C.A. § 892. Also, according
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`to Plaintiff,
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`physical security of arms, ammunition, and
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`, AR 190-11, required
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`personnel involved in AA&E will be fully cognizant of their responsibilities to observe and report
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`promptly to the commander any incident or condition which might result in temporary or
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`Arms, Ammunition,
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`and
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`Explosives
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`at
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`10
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`(Nov.
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`2006),
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`available
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`at
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`-11, Physical Security of
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`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 15 of 27
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`https://www.customvault.com/docs/specs/AR%20190-11.pdf
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`-
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`.6, 7
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`The United States argues that, based on the facts presented,
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`rise to criminal dereliction of duty. Instead, Suhanec testified that in the two weeks prior to the
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`attack, he would show up at the Unit Armory for five to ten minutes, then excuse himself, telling
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`Cassidy that he was heading back to his barracks. See Dep. of Jesse Suhanec at 76:16 24, 136:18
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`138:1. Cassidy testified that, in absenting himself from his post, Suhanec told Cassidy that he was
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`leaving to study for a promotional exam or to work on an application for a program meant to help
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`soldiers transition into civilian life. Decl. of Staff Sergeant Kyle E. Cassidy, Dkt. No. 61 ¶¶ 2, 4
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`(Cassidy Decl.).
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`Reviewing these arguments, it is clear that there is an underlying question as to whether
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` rose to the level of dereliction of duty. The question itself exemplifies the
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`discretion left to Cassidy to determine whether the behaviors he observed constituted dereliction
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`of duty. Plaintiff has presented no regulations requiring Cassidy to independently investigate his
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`ns for not being at his post. Nor, does Plaintiff identify a singular action observed
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` Plaintiff provides a copy of AR 190-11 at Decl. of James J. Raffa, Ex. 6, Dkt. No. 49 at 135 143. This version,
`however, does not contain the cited portion. As such, the Court relies on a version containing the same provision
`found online.
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`7 Plaintiff also relies on two other Army regulations, AR 190-30 (Military Police Investigations) and AR 195-2
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`18.
`As the United States points out, however, Plaintiff has not provided the relevant portions of these regulations. Reply
`at 18. Instead, Plaintiff relies on Field Manuel 27-1 (Legal Guide for Commanders) as requiring reporting because it
`-30 and 195-2 require you to report criminal activity, known of suspected, to the military police
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`States responds that this manual is only applicable to commanders, which Cassidy was not. Reply at 18. Regardless
`of applicability based on rank, however, and based on the evidence presented by the parties, AR 190-30 and AR
`195-2 appear to provide no more than a duplicative requirement as AR 190-11, i.e. that Cassidy would have been
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`same grounds as this argument under AR 190-11.
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`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 16 of 27
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`
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`by Cassidy, which triggered a mandatory reporting requirement. Instead, the regulation Plaintiff
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`relies on, AR 190-11, requires reporting only in the case of any incident or condition which might
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`result in temporary or permanent disqualification of such personnel.
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`-11 at 10 (emphasis
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`-11 leaves discretion
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`to the reporting soldier to determine what actions they believe severe enough to require temporary
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`or permanent disqualification. As such, the regulations leave the decision to report based on
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`observed behavior to the judgment of the reporting soldier.
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`b. Of the Kind the Discretionary Function was Meant to Shield
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`The element of judgment or choice embodied in AR 190-11 is of the kind the discretionary
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`function exception was meant to shield. Determining when behavior, such as absenting oneself
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`reaches a level requiring reporting involves numerous elements of judgment,
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`including respect and deference owed to a superior and mindfulness of where the
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`are best spent. The Court finds that it does not retain subject matter jurisdiction over this claim.
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`5.
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`ailure to Prevent Suhanec from Removing the 9mm and Ammunition
`from the Unit Armory
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`Plaintiff claims that Cassidy was negligent the day of the shooting when he failed to prevent
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`Suhanec from accessing the Unit Armory. Resp. at 19 21. According to Plaintiff, and based on
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`depositional testimony from Suhanec, on that day Suhanec interacted briefly with Cassidy in the
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`Unit Armory before taking the firearm and ammunition from a locker, placing them in a duffle
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`bag, and leaving to procure a vehicle to drive off of the base. Resp. at 20 21; see also Dep. of
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`Jesse Suhanec at 131:8 134:2. According to Suhanec, Cassidy did not try to stop him from
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`leaving, which, Plaintiff argues, contravened mandatory Army regulations regarding the secure
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`storage of weaponry.
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`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 17 of 27
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`According to the United States, and based on a signed declaration from Cassidy, the
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`morning of the incident Cassidy opened the Armory and interacted briefly with Suhanec when he
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`arrived. Cassidy Decl. ¶ 7. Suhanec told Cassidy that he needed to double check storage
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`paperwork before proceeding to the back of the Armory where he procured the 9mm handgun and
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`ammunition.
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`unusual for Suhanec to check his paperwork. Id. ¶ 8. Based on this interaction, Cassidy did not
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`see Suhanec take the handgun and ammunition and only realized they were missing after Suhanec
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`had left the base some hours later. Id. ¶ 10. The United States argues that throughout this
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`interaction, Plaintiff can point to no mandatory regulation which Cassidy contravened. Instead,
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`Suhanec had full access to the Unit Armory, thus gaining access to the weapon and ammunition
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`he used in his attack on Plaintiff
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`breaching any regulations.
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`a. Element of Judgment or Choice
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`The United States is correct. Plaintiff again cites to AR 190-11, which requires
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`to further requirements of AR 190-
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` AR 190-11 at 3. Additionally, Plaintiff points
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`reening . . . and the monitoring to minimize opportunities for
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` Id. at 11. Plaintiff also makes reference to AR
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`190-
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`safekeeping keys to storage areas. Id. at 16 17.
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`On even a cursory reading of AR 190-11, it is clear that the regulation is not applicable to
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`the fact situation before the Court. Further, none of these cited provisions include a specific
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`mandate that Cassidy is alleged to have violated. Suhanec, by privilege of his position, and as
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`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 18 of 27
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`
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` had access to the Unit Armory. After complying with the safety protocols of
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`AR 190-11, the regulations give the armory staff discretion to determine who should be allowed
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`to enter and for what purposes. Thus, the first prong of the discretionary function exception is
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`met.
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`b. Of the Kind the Discretionary Function was Meant to Shield
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`Turning to the second prong, the choice of who to allow access to the armory and the
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`privileges afforded therein, is the sort of discretionary action addressed by the discretionary
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`function exception. Balancing the needs of the armed forces, and its personnel, in accessing
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`weapons with the safety of those weapons, is the sort of balancing envisioned by the exception.
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`The Court, therefore, finds that the United States has met its burden in showing the applicability
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`of the discretionary function exception and that the exception divests this Court of jurisdiction
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`over this claim.
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`6. Palmer Provision of Keys to an Army Vehicle to Suhanec
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`According to Plaintiff, and again based on depositional testimony from Suhanec which is
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`uncontested by the United States, the following took place: After leaving the Unit Armory with a
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`weapon and ammunition in a duffle bag, Suhanec approached Palmer, who maintained the keys
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`for the base vehicles. Suhanec allegedly asked Palmer for the keys to the van he intended to drive
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`and, when asked by Palmer why he needed the keys, Suhanec responded that he needed them for
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`Resp. at 22 (quoting Dep. of Jesse Suhanec at 80:19). According to Plaintiff,
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`this answer was insufficiently detailed and violated mandatory Army regulations dictating the
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`circumstances under which a soldier may use an Army vehicle.
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`The United States
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`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 19 of 27
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`
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`explanation was sufficient, involved an element of discretion. Reply at 19 20. The United States
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`claims that the regulation Plaintiff relies on does not provide a mandatory course of action, and,
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`therefore, does not curtail the discretion afforded Palmer.
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`a. Element of Judgment or Choice
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`Plaintiff relies on AR 58-1, entitled Management, Acquisition, and Use of Motor Vehicles.
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`See Suppl. Decl. of Maj. Richard Connaroe,

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