Romero v. United States of America et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ANTHONY J. ROMERO,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
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Case No. CIV-24-1233-R
REPORT AND RECOMMENDATION
Before the Court is Defendant United States of America’s Motion to
Dismiss. Doc. 32.1 Plaintiff Anthony J. Romero, a federal inmate appearing pro
se2 and proceeding in forma pauperis, filed a complaint seeking monetary
damages under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b),
2671-80. Doc. 1. United States District Judge David L. Russell referred this
matter to the undersigned Magistrate Judge for initial proceedings consistent
1 	Citations to a court document are to its electronic case filing designation
and pagination. Except for capitalization, quotations are verbatim unless
otherwise indicated.
2 	This Court construes “[a] pro se litigant’s pleadings . . . liberally,” holding
them “to a less stringent standard than formal pleadings drafted by lawyers.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner,
404 U.S. 519, 520 (1972) (per curiam). The Court, however, may not serve as
Plaintiff’s advocate, creating arguments on his behalf. See Yang v. Archuleta,
525 F.3d 925, 927 n.1 (10th Cir. 2008).
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with 28 U.S.C. § 636(b)(1)(B) and (C). Doc. 5. Plaintiff responded, Doc. 39, and
Defendant replied, Doc. 42.3 So, the matter is at issue. Upon review, the
undersigned recommends the Court grant Defendant’s motion to dismiss.
I. 	Background and Plaintiff’s negligence claim.
Plaintiff alleges his cellmate, Gabriel Vasquez, attacked him in the
Special Housing Unit at El Reno Federal Correctional Institute (FCI-El Reno),
as part of a plot orchestrated by Bureau of Prisons (BOP) employee, Malia
Curnutt, to “get [Mr. Vasquez] back into the good graces of the Norteno gang.”
Doc. 1, at 5.4 Plaintiff raises a negligence claim against the United States based
on his allegations that Special Investigative Services Technician (SIS) Curnutt
“assisted in setting up an attack on [him] by a member of [his] former gang.”
3 	The undersigned notes that Plaintiff filed a sur-reply, Doc. 43, without
leave in violation of this Court’s Local Rules. LCvR7.1(h). Plaintiff appears pro
se, but he must follow the same rules as any other litigant. See Davis v. Kan.
Dep’t of Corrs., 507 F.3d 1246, 1247 n.1 (10th Cir. 2007) (holding a pro se
litigant “to the same rules of procedure as other litigants”). The undersigned
therefore does not address Plaintiff’s sur-reply any further, but notes that it
mostly reiterated arguments Plaintiff made in his reply brief.
4 	This Court has previously considered Plaintiff’s background and his
claims and need not repeat that summary here. For a complete recitation of
the facts underlying Plaintiff’s complaint, see the undersigned’s previous
Report and Recommendation. Doc. 9.
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Id. at 7.5 He seeks relief of $1,000,000.00 in monetary compensation for his
claim. Id. at 9.
II. 	Standard of review.
Defendant moves to dismiss the complaint for lack of subject matter
jurisdiction 	under 	Fed. 	R. 	Civ. 	P. 	12(b)(1). 	Doc. 	32, 	at 	2-3. 	“Within
constitutional bounds, Congress decides what cases the federal courts have
jurisdiction to consider.” Bowles v. Russell, 551 U.S. 205, 212 (2007). A motion
to dismiss for lack of subject matter jurisdiction takes one of two forms: a facial
or a factual attack. Pueblo of Jemez v. United States, 790 F.3d 1143, 1148 n.4
(10th Cir. 2015). “A facial attack questions the sufficiency of the complaint’s
allegations.” Heldman v. Oklahoma, No. CIV-19-419-D, 2020 WL 939288, at *2
(W.D. Okla. Feb. 26, 2020). “If the motion challenges only the sufficiency of the
jurisdictional allegations in the complaint, the Court confines its review to the
pleadings and accepts the allegations in the complaint as true.” Altstatt v. Bd.
of Cnty. Comm’rs for Okla. Cnty., No. CIV-22-811-D, 2023 WL 6208550, at *2
(W.D. Okla. Sept. 22, 2023).
Here, Defendant raises a facial jurisdictional challenge, so the Court
accepts the allegations in the petition as true. Doc. 32, at 2-3.
5 	The Court dismissed Plaintiff’s second claim alleging Defendant was
negligent 	because 	the 	facility 	lacked 	an 	emergency-call 	button 	without
prejudice. See Doc. 11.
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“‘[T]he determination of whether the FTCA excepts the government’s
actions from its waiver of sovereign immunity involves both jurisdictional and
merits issues.’” Pringle v. United States, 208 F.3d 1220, 1223 (10th Cir. 2000)
(quoting Bell v. United States, 127 F.3d 1226, 1228 (10th Cir.1997)). And “a
court is required to convert a Rule 12(b)(1) motion to dismiss into a Rule
12(b)(6) motion or a Rule 56 summary judgment motion when resolution of the
jurisdictional question is intertwined with the merits of the case.” Holt v.
United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Therefore, Defendant’s
12(b)(1) motion is converted into a 12(b)(6) motion.
“[A] complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S.
at 556); see also Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th Cir. 2010). “[I]n
deciding a Rule 12(b)(6) motion, a federal court may only consider facts alleged
within the complaint.” County of Santa Fe v. Pub. Serv. Co. of N.M., 311 F.3d
1031, 1035 (10th Cir. 2002).
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III. 	Analysis.
A. 	Plaintiff alleges a negligence claim.
Plaintiff seeks compensatory damages under the FTCA for SIS Curnutt’s
negligent acts. Doc. 1, at 7. “The FTCA provides a limited waiver of sovereign
immunity, allowing the United States to be sued for damages arising from torts
committed 	by 	government 	employees 	acting 	within 	the 	scope 	of 	their
employment.” Tsosie v. United States, 452 F.3d 1161, 1163 (10th Cir. 2006)
(citation omitted); see also 28 U.S.C. § 1346(b)(1). “[T]he [FTCA] . . . limits its
waiver of sovereign immunity in a number of ways.” Sosa v. Alvarez-Machain,
542 U.S. 692, 700 (2004). Relevant to Plaintiff’s claim, the FTCA limits its
waiver of sovereign immunity to exclude “[a]ny claim arising out of assault,
battery, false imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or interference with contract
rights.” 28 U.S.C. § 2680(h). And “‘Section 2680(h) does not merely bar claims
for assault or battery; in sweeping language it excludes any claim arising out
of assault or battery.’” Blackburn v. United States, 2021 WL 3027979, at *4
(10th Cir. July 19, 2021) (quoting United States v. Shearer, 473 U.S. 52, 55
(1985)).
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Defendant contends that the Court lacks jurisdiction over Plaintiff’s
negligence claim, in part, because that claim is actually an intentional tort
barred by § 2680(h). Doc. 32, at 6-7. The undersigned disagrees.
“[I]t is both settled and undisputed that in at least some situations the
fact that an injury was directly caused by an assault or battery will not
preclude liability against the Government for negligently allowing the assault
to occur.” Sheridan v. United States, 487 U.S. 392, 398 (1988). Accordingly, it
is entirely plausible that a “Plaintiff[’s] alleged injuries can be traced back to
more than one type of tortious conduct.” Tilga v. United States, 2014 WL
12783121, at *8 (D.N.M. Dec. 5, 2014).
“[T]he Supreme Court has recognized one category of battery-related
cases that falls outside the preclusive compass of § 2680(h).” Franklin v. United
States, 992 F.2d 1492, 1498 (10th Cir. 1993) (citing Sheridan, 487 U.S. at 400-
03). 	Section 	2680(h) 	“does 	not 	bar 	recovery 	under 	the 	FTCA” 	“when 	a
negligence claim against the government arises out of an incident of battery
[that] is in no way contingent on the perpetrator’s federal employment status,
i.e., when the government’s liability is based on its breach of a duty owed the
victim that is independent of its relationship, if any, to the perpetrator.” Id.
Accordingly, the intentional tort exception “only applies in cases arising out of
assaults by federal employees.” Sheridan, 487 U.S. at 400.
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Here, the alleged assault was committed by another inmate, not by the
federal employee, SIS Curnutt. And Plaintiff alleges Defendant was negligent
in failing to prevent the assault. So, the intentional tort exception does not
apply to Plaintiff’s negligence claim.
B. 	The Court lacks subject matter jurisdiction over Plaintiff’s
negligence claim.
For an FTCA claim to be actionable, a plaintiff must assert a claim: (1)
“against the United States”; (2) “for money damages”; (3) “for injury or loss to
property, or personal injury or death”; (4) “caused by the negligent or wrongful
act or omission of any employee of the Government”; (5) “while acting within
the scope of his office or employment”; and (6) “under circumstances where the
United States, if a private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.” Brownback v.
King, 592 U.S. 209, 212 (2021) (quoting § 1346(b)). While “[i]n most cases, a
plaintiff’s failure to state a claim under [Fed. R. Civ. P.] 12(b)(6) does not
deprive a federal court of subject-matter jurisdiction . . . in the unique context
of the FTCA, all elements of a meritorious claim are also jurisdictional.” Id. at
217. “So even though a plaintiff need not prove a § 1346(b)(1) jurisdictional
element for a court to maintain subject-matter jurisdiction over his claim, . . .
a plaintiff must plausibly allege all six FTCA elements not only to state a claim
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upon which relief can be granted but also for a court to have subject-matter
jurisdiction over the claim.” Id.
Under the FTCA, the government is liable for the negligent or wrongful
acts or omissions of its employees “if a private person[] would be liable to the
claimant in accordance with the law of the place where the act or omission
occurred.” 28 U.S.C. § 1346(b)(1); see also id. § 2674. Thus, Plaintiff must state
a claim against Defendant under Oklahoma tort law.
Plaintiff argues that “Oklahoma recognizes negligence claims where a
custodian fails to protect a person in its control, from foreseeable third party
harm.” Doc. 39, at 3-4. Oklahoma law recognizes the general rule that custodial
personnel “must exercise reasonable care and diligence to protect those in
[their] custody from known or reasonably perceivable dangers.” Seiler v. City
of Bethany, 746 P.2d 699, 700 (Okla. Ct. App.1987) (citing Restatement (2d) of
Torts, § 314A(4) (quotation omitted)). Yet Plaintiff has not “demonstrate[d]
that conduct by a private person akin to that alleged in his complaint would
constitute a violation of the duty of care under Oklahoma law.” Pappas v.
United States, 617 F. App’x 879, 882 (10th Cir. 2015) (citing Seiler, 746 P.2d at
700). Plaintiff bears the burden of identifying an appropriate private party
analogue under Oklahoma law, and he has failed to meet his burden. The
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undersigned therefore recommends granting Defendant’s motion to dismiss,
Doc. 32.6
IV. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
grant Defendant’s motion to dismiss, Doc. 32, without prejudice.
The undersigned advises Plaintiff of his right to file an objection to this
Report and Recommendation with the Clerk of this Court on or before January
5, 2026, in accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2).
The undersigned 	further 	advises 	Plaintiff that 	failure 	to make 	a timely
objection to this Report and Recommendation waives the right to appellate
review of both factual and legal questions contained herein. See Moore v.
United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the
undersigned Magistrate Judge in this matter.
6 	Defendant urges the Court to disallow Plaintiff leave to amend to add
new claims as they would be unexhausted and therefore, futile. Doc. 42, at 4-
5. “A dismissal with prejudice is appropriate where a complaint fails to state a
claim under Rule 12(b)(6) and granting leave to amend would be futile.”
Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006); accord
Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013) (leave
to amend should be freely granted, but amendment may be denied when it
would be futile). The Court does not conclude that Plaintiff is attempting to
add new claims. Plaintiff fails to establish a private analog for his negligence
claim, but this alone does not render a future amendment futile. So, dismissal
should be without prejudice.
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ENTERED this 11th day of December, 2025.
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