Donato Dalrymple v. United States

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 16, 2006
No. 05-14375
THOMAS K. KAHN
CLERK

D. C. Docket No. 03-20588-CV-KMM

DONATO DALRYMPLE,
HECTOR S. ABELAIRAS, et al.,

Plaintiffs-Appellants,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of Florida

(August 16, 2006)

Before DUBINA and KRAVITCH, Circuit Judges and MILLS,*District Judge.

DUBINA, Circuit Judge:

____________________________
*Honorable Richard Mills, United States District Judge for the Central District of Illinois, sitting
by designation.
 This case arises from the execution of search and administrative warrants by

Immigration and Naturalization Service (“INS”) agents authorizing the removal of

Elian Gonzalez (“Elian”) from his great-uncle’s home in Miami on April 22, 2000.

Appellants, individuals that were present during the execution of the warrants,

filed a complaint pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §

2671, et seq., against the United States (“the government”), seeking damages for

injuries caused by the INS agents’ use of force during the search. Appellants

Mirtha Maria Falcon and her two minor children, Antonio Ortega and Yuliet

Colon, and appellants Alexei Torres, Angela Taina Toro, and Carlos R. Zayas

(referred to collectively as the “dismissed plaintiffs”) challenge the district court’s

order dismissing their claims for lack of subject matter jurisdiction.1 The

remaining appellants challenge the district court’s finding that, as a matter of law,

the agents’ actions were objectively reasonable under the circumstances. For the

reasons discussed below, we affirm the district court’s final judgment.

I. BACKGROUND

1
Appellants assert that Plaintiff Conception Maria Cabral (“Cabral”) appeals the district
court’s order dismissing her claims for lack of jurisdiction. Our review of the Notice of Appeal
reveals that Cabral is not listed as one of the plaintiffs appealing to this court, thus she is not an
appellant to this action. However, the same legal analysis and reasoning set out in this opinion
would apply to her claims as well.

2
 On November 25, 1999, officials found Elian, a six-year-old Cuban boy,

floating on an inner-tube off the coast of Fort Lauderdale, Florida. The INS

paroled Elian into the United States and released him into the custody of his great-

uncle, Lazaro Gonzalez (“Gonzalez”). Elian and Gonzalez, on Elian’s behalf,

filed petitions with the INS seeking political asylum. Shortly thereafter, Elian’s

father, a Cuban citizen, requested that Elian be returned to Cuba. The INS

determined that the petitions for asylum were legally void and refused to consider

their merit.2 The INS then revoked Gonzalez’s custody of Elian. After refusing to

surrender Elian, the INS issued an administrative warrant for Elian and obtained a

search warrant to enter Gonzalez’s home. The INS agents executed the search and

administrative warrants at approximately 5:15 a.m. on Saturday, April 22, 2000.

Appellants are individuals who were either on Gonzalez’s property,

neighbors of Gonzalez, demonstrators that were either behind a barricade or

advancing towards Gonzalez’s property, or other bystanders near Gonzalez’s

property at the time the agents executed the warrants. They brought this action

against the government based on the government’s use of gas during the execution

of the warrants. Appellants allege that during the execution of the warrants a

2
This decision was eventually appealed to this court and we affirmed the INS’s findings that
the petitions were legally void. See Gonzalez v. Reno, 212 F.3d 1338 (11th Cir. 2000).

3
federal agent, using an Israeli gas gun, indiscriminately sprayed gas and “shouted

obscenities, pointed guns and/or threatened to shoot, beat, kicked and punched

neighborhood residents, passers-by and persons who had assembled peacefully

outside the [Gonzalez] home.” R. Vol. 2, Folder 1, Doc. 71 at 25. According to

the appellants, an agent sprayed some of them “directly in the face, at point blank

range,” with the gas gun. Id. at 78. Based on these allegations, the appellants

filed suit against the government under the FTCA for assault and battery, false

imprisonment, intentional and negligent infliction of emotional distress, and

negligence.

Prior to filing suit in federal court, each appellant filed an administrative

claim, or a Standard Form 95 (“SF-95"),3 with the United States Department of

Justice (“Department”). The claims were filed on April 22, 2002, exactly two years

from the day the appellants’ claims accrued. The appellants attached to each SF-

95 a copy of the amended complaint filed in an earlier case, Dalrymple v. Reno,

164 F. Supp. 2d 1364 (S.D. Fla. 2001), in which fifty-two plaintiffs demanded

$100 million in damages for constitutional violations arising from the execution of

3
A Standard Form 95 is the standard form used to file a claim against the government under
the FTCA. See 28 C.F.R. § 14.2(a).

4
the warrants to obtain custody of Elian.4 On the SF-95 there is a space to insert a

sum certain sought by the claimant. All of the SF-95s submitted by the appellants

contained a sum certain of $250,000 except for the SF-95s submitted by the

dismissed plaintiffs, who failed to insert any sought amount on their SF-95s.

After the government failed to respond to all of the appellants’

administrative claims within the prescribed six-month time period, the appellants

properly filed their claims under the FTCA in federal court. The government filed

a motion to dismiss the claims of the appellants who failed to provide a sum

certain in their administrative claims, arguing that the district court lacked

jurisdiction because they failed to meet the statutory prerequisite for filing suit.

The district court adopted the magistrate’s report and recommendation and

dismissed those appellants’ claims for lack of jurisdiction, finding that they failed

to meet the statutory prerequisite of providing a sum certain.

The district court granted summary judgment in favor of the government as

to the majority of the remaining appellants (referred to collectively as “the

summary judgment plaintiffs”) after discovery and based upon the magistrate

4
Specifically, the complaint asserted claims against Attorney General Janet Reno, INS
Commissioner Doris Meissner, and Deputy Attorney General Eric Holder, in their individual
capacities under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), for violations of the plaintiffs’ First, Fourth and Fifth Amendment rights. Reno, 164 F. Supp.
2d at 1367-69, rev’d, 334 F.3d 991 (11th Cir. 2003).

5
judge’s report and recommendation, finding that the government’s use of either

tear gas or pepper spray was a reasonable use of force and was privileged under

Florida state law. Relying on “[t]he undisputed evidence in the record” which

“establishe[d] that many protestors sought to interfere with the INS officers’

ability to execute the warrants and remove Elian Gonzalez from the Gonzalez

home,” by throwing objects such as a stool, rocks and bottles at the agents, the

district court concluded that the agents’ use of force was objectively reasonable

and did not give rise to the summary judgment plaintiffs’ alleged tortious causes

of action under the FTCA.

The district court denied the government’s motion for summary judgment as

to the assault and battery and intentional infliction of emotional distress claims of

the remaining appellants who were allegedly not on the Gonzalez’s property, were

not advancing towards the agents or the Gonzalez’s property, and who were

gassed at a close range either behind the barricade or on their own property

(collectively referred to as the “trial plaintiffs”).5 The district court concluded that

there was a question of fact as to whether the use of gas as to the trial plaintiffs

5
These appellants include Elsa Anderson, Ramon Diago, Antonio Ortega, Madeline Peraza,
Maria Riera, Eduardo Rodriguez, Gloria Sanchez, Illena Santana, Carmen Valdes, Leslie Alvarz, and
Nancy Canizares. Additionally, the government inadvertently failed to move for summary judgment
as to Armanda Santos’s claims. Thus, her claims survived summary judgment as well.

6
was objectively reasonable. After a six-day bench trial, the district court entered

judgment in favor of the government as to the trial plaintiffs’ claims, finding that

they failed to establish by a preponderance of credible evidence that the use of

force was unreasonable under the circumstances. The district court found that the

deployment of the gas gun was in response to the demonstrators’ threats and that

the agent was 10 to 15 feet away from the demonstrators when he deployed the

gun. The district court’s findings of fact were supported by videotape evidence

which corroborated the agents’ testimony regarding the circumstances surrounding

the execution of the warrants.

Because the district court found that the trial plaintiffs failed to prove that

the circumstances under which they were exposed to gas was different from the

circumstances surrounding the use of gas against the summary judgment plaintiffs,

the district court relied on its earlier holding that, as a matter of law, the use of

either tear gas or pepper spray was objectively reasonable under the

circumstances. Thus, the agents’ use of gas did not support the trial plaintiffs’

assault and battery and intentional infliction of emotional distress claims under the

FTCA. Accordingly, the district court entered final judgment in favor of the

government. Appellants then perfected this appeal.

II. ISSUES

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 Appellants present two issues for appellate review: (1) whether the district

court erred in dismissing the dismissed plaintiffs’ claims for lack of subject matter

jurisdiction on the basis that they failed to satisfy the statutory prerequisite of

providing a sum certain in their administrative claims before filing suit against the

government under the FTCA; and (2) whether, as to the remaining appellants, the

district court erred in finding that, as a matter of law, the agents’ use of tear gas

during the execution of the warrants was objectively reasonable under the

circumstances because it violated the INS’s policies and procedures.

III. STANDARDS OF REVIEW

We review de novo the district court’s order granting a motion to dismiss

for lack of subject matter jurisdiction. Broward Gardens Tenants Ass’n v. United

States EPA, 311 F.3d 1066, 1072 (11th Cir. 2002). We review a district court’s

grant of summary judgment de novo. McCormick v. City of Ft. Lauderdale, 333

F.3d 1234, 1242-43 (11th Cir. 2003). “We review a district court’s legal

conclusion de novo and its fact findings for clear error.” Cohen v. United States,

151 F.3d 1338, 1340 (11th Cir. 1998).

IV. DISCUSSION

A. Lack of jurisdiction

8
 The FTCA provides a limited waiver of the United States’ sovereign

immunity for tort claims. Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir.

1994). “It allows the government to be sued by certain parties under certain

circumstances . . . .” Id. However, “[a] federal court may not exercise jurisdiction

over a suit under the FTCA unless the claimant first files an administrative claim

with the appropriate agency.” Id. (citing 28 U.S.C. § 2675 (a)). The

administrative claim must be filed within two years from the time the claim

accrues and must be “accompanied by a claim for money damages in a sum

certain.” 28 C.F.R. § 14.2(a); 28 U.S.C. §§ 2675, 2401(b). “When the sum certain

is omitted, the administrative claim fails to meet the statutory prerequisite to

maintaining a suit against the government, and leaves the district court without

jurisdiction to hear the case.” Suarez, 22 F.3d at 1065.

The dismissed plaintiffs do not dispute that they failed to provide a sum

certain on their SF-95s when they were filed on April 22, 2002. However, they

contend that because they submitted additional documentation with the SF-95s

from which the government could have ascertained a sum certain, and because

they corrected the omission within one month of the filings, the “technical

deficiency” does not preclude the federal court from hearing the case.

Specifically, the dismissed plaintiffs argue that the additional ninety-seven SF-95s,

9
which included a sum certain and were filed on the same day and in the same box

as the dismissed plaintiffs’ SF-95s, provided sufficient notice to the government of

the claimed amount and therefore satisfied the jurisdictional requirement of the

FTCA. The dismissed plaintiffs additionally assert that the attached Dalrymple v.

Reno complaint, in which plaintiffs sought $100 million, is sufficient

documentation from which the government could have ascertained a sum certain

for each of the dismissed plaintiffs. Finally, the dismissed plaintiffs concede that

they did not correct the omission within the two year statute of limitations for

filing an administrative claim; however, they contend that the omission does not

preclude the federal court’s jurisdiction because they corrected the omissions

within one month of the filings, and the government was not prejudiced by the

delay.6

This court has stated that it takes “a somewhat lenient approach to the ‘sum

certain’ requirement.” Tidd v. United States, 786 F.2d 1565, 1567 n.6 (11th Cir.

1986). However, “[w]e have held that the FTCA requires, at a minimum, that a

claimant expressly claim a sum certain or provide documentation which will allow

6
Appellants asserted at oral argument that this court should toll the two-year statute of
limitations for filing a sum certain under the FTCA. When questioned, appellants asserted that this
argument was implicitly made to the court in its initial brief. However, after carefully reviewing the
appellants’ initial brief, we conclude that the appellants failed to raise the issue sufficiently for
discussion, and thus it is deemed abandoned. See Doe v. Moore, 410 F.3d 1337, 1349 n.10 (11th Cir.
2005).

10
the agency to calculate or estimate the damages to the claimant.” Suarez, 22 F.3d

at 1066. The government contends that neither the additional documentation

attached to the dismissed plaintiffs’ claims nor the correction made after the

statute of limitations expired satisfies the prerequisite to filing suit under the

FTCA. We agree.

The FTCA requires that each claim and each claimant meet the

prerequisites for maintaining a suit against the government. 28 U.S.C. § 2675(a).

As our sister circuits have held, in multiple claimant actions under the FTCA

“each claimant must ‘individually satisfy the jurisdictional prerequisite of filing a

proper claim.’” Haceesa v. United States, 309 F.3d 722, 734 (10th Cir. 2002)

(quoting Muth v. United States, 1 F.3d 246, 249 (4th Cir. 1993)); see also Keene

Corp. v. United States, 700 F.2d 836, 842 (2d Cir. 1983) (“Where separate claims

are aggregated under the FTCA, the claimant must present the government with a

definite damage amount for each claim.”). Accordingly, because each claimant

must independently satisfy the prerequisite for filing suit under the FTCA by

providing a sum certain claim, we conclude that the other ninety-seven claimants

who filed a sum certain claim do not satisfy the statutory prerequisite for the

dismissed plaintiffs who omitted a sum certain in their claims.

11
 Additionally, the attached Dalrymple v. Reno complaint is not sufficiently

specific such that the government could have calculated or estimated the damages

to each of the dismissed plaintiffs. In Molinar v. United States, 515 F.2d 246 (5th

Cir. 1975)7 the former Fifth Circuit held that although the plaintiff failed to

provide a sum certain in his administrative claim, he satisfied the FTCA’s

prerequisite by attaching to his claim medical bills and repair estimates totaling the

exact amount of damages he sought. Id. at 249. Unlike the medical bills and

repair estimates in Molinar, the attached Dalrymple complaint does not contain

specific information as to the alleged damages that each dismissed plaintiff is

seeking.

As to four of the dismissed plaintiffs, the Dalrymple complaint does not

provide insight into the amount each plaintiff is seeking because they were not

parties to the Dalrymple action.8 Even as to the dismissed plaintiffs who were

parties to the action, the complaint does not provide information as to the amount

of damages the individual plaintiffs in the Dalrymple action sought, rather it

provides a total amount of damages for the multiple plaintiffs. Although the

7
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.
8
The four appellants include Mirtha Maria Falcon, Antonio Ortega, Yuliet Colon, and Angela
Taina Toro.

12
dismissed plaintiffs contend that the government could have ascertained a sum

certain based on the Dalrymple complaint by dividing the total amount of damages

by the number of plaintiffs to determine that each appellant in the present action is

seeking a sum certain of approximately $2 million, this contradicts the dismissed

plaintiffs’ assertion that the sum certain that each plaintiff is seeking is $250,000.

Moreover, even if it were possible to ascribe to the dismissed plaintiffs a portion

of the aggregate damages claimed in the Dalrymple complaint, it would not shed

light on the value of their FTCA claims because the damages sought in the

Dalrymple complaint are not representative of the damages they are seeking under

the FTCA.9 Accordingly, we hold that the Dalrymple complaint does not meet

this court’s standard for satisfying the statutory prerequisite for filing suit under

the FTCA.

Finally, the dismissed plaintiffs’ correction of the omission of a sum certain

within one-month of the filing, but undisputedly after the two-year statute of

limitations,10 is not sufficient to correct the error, despite the government’s lack of

prejudice. A sum certain, or documentation from which the court can reasonably

9
The plaintiffs in the Dalrymple complaint sought punitive damages and prejudgment
interest, both of which are not available under the FTCA. See 28 U.S.C. § 2674.
10
It is undisputed that the appellants’ claims accrued on April 22, 2000, and thus the two-year
statute of limitations ran on April 22, 2002, the day they filed their administrative claims.

13
estimate the damages, must be filed with the appropriate agency within the two-

year statute of limitations in order to satisfy the prerequisite to bringing suit

against the government under the FTCA. See Adkins v. United States, 896 F.2d

1324, 1325 (11th Cir. 1990); see also Kokotis v. United States Postal Serv., 223

F.3d 275, 278 (4th Cir. 2000) (“Failure to request a sum certain within the statute

of limitations deprives a district court of jurisdiction over any subsequently filed

FTCA suit.”); Kokaras v. United States, 980 F.2d 20, 22 (1st Cir. 1992) (“[A]

timely-presented claim stating a sum certain is necessary for a court to have

jurisdiction to entertain a suit against the United States under the FTCA”); Cizek v.

United States, 953 F.2d 1232, 1234 (10th Cir. 1992) (holding that failure to

provide a sum certain within the two-year statute of limitations deprived the

federal court of subject matter jurisdiction); Wardsworth v. United States, 721

F.2d 503 (5th Cir. 1983) (same). The dismissed plaintiffs clearly did not provide a

sum certain or any additional documentation from which the government could

have sufficiently ascertained the amount of damages they were seeking within the

two-year statute of limitations. Accordingly, we conclude that the district court

did not err in dismissing for lack of subject matter jurisdiction the claims of the

dismissed plaintiffs.

B. Reasonable Use of Force

14
 The remaining appellants contend that the district court erred in finding that,

as a matter of law, the agents’ use of tear gas was objectively reasonable under the

circumstances, and thus not actionable under Florida tort law. Appellants argue

that the use of tear gas, rather than pepper spray, violated the INS’s policies and

procedures in effect at the time of the execution of the warrants, as well as the

INS’s Operational Plan, and thus does not constitute an objectively reasonable use

of force and gives rise to tortious causes of action under Florida law.11 Even

viewing the facts in the light most favorable to the summary judgment plaintiffs,

and thus assuming that tear gas was used and such use violated the INS’s policies,

procedures, and plan, the appellants fail to establish that such a violation supports

liability under Florida tort law.

Violating an internal policy or procedure does not create a cause of action

under the FTCA against the government unless the challenged conduct is

independently tortious under applicable state law. See Miles v. Naval Aviation

Museum Found., Inc., 289 F.3d 715, 722 (11th Cir. 2002) (“The FTCA creates

11
Although appellants argued to the district court that the violation of the internal policies
and procedures created a “zone of risk” sufficient to support liability for negligence under Florida
tort law, the appellants did not raise this argument to this court in their initial brief. Accordingly,
we deem it abandoned. See Randolph v. Green Tree Fin. Corp., 244 F.3d 814, 816 (11th Cir. 2001).
However, even if this court were to consider the merits of such argument, for the reasons stated
above, we agree with the district court that any negligence claims premised on the agents’ use of tear
gas fail as a matter of law because their actions were objectively reasonable under the circumstances.

15
liability for the United States only if the act at issue is a tort in the state where the

conduct occurred.”). The FTCA was not intended “to create new causes of action”

or “to enforce federal statutory duties.” Pate v. Oakwood Mobile Homes, Inc., 374

F.3d 1081, 1084 (11th Cir. 2004) (quoting Howell v. United States, 932 F.2d 915,

917 (11th Cir. 1991)). “[E]ven where specific behavior of federal employees is

required by statute, liability to the beneficiaries of that statute may not be founded

on the [FTCA] if state law recognizes no comparable private liability.” Id.

(quoting Sellfors v. United States, 697 F.2d 1362, 1367 (11th Cir. 1983)). In cases

in which the government employees’ actions involve “uniquely governmental

functions,” as in this case, we have held that the “comparison of activities need not

be exact.” Id. (quoting Howell, 932 F.2d at 918).

Adopting the magistrate judge’s report and recommendation, the district

court held that the agents’ actions did not constitute a tort because the agents’ use

of force was objectively reasonable, and thus privileged under Florida law.

Specifically, in his report and recommendation the magistrate judge relied on

section 776.05 of the Florida statute, which provides, in part,

A law enforcement officer, or any person whom the officer has summoned
or directed to assist him or her, need not retreat or desist from efforts to
make a lawful arrest because of resistance or threatened resistance to the
arrest. The officer is justified in the use of any force:

16
 (1) Which he or she reasonably believes to be necessary to defend himself
or herself or another from bodily harm while making the arrest . . . .

Fla. Stat. § 776.05 (2000). The appellants do not attempt to dispute the magistrate

judge’s findings adopted by the district court that the “evidence in the record

establishes that many protestors sought to interfere with the INS officers’ ability to

execute the warrants and remove Elian Gonzalez from the Gonzalez home” and

evidence supporting the district court’s finding that “the conduct of many

protestors and certain plaintiffs would constitute obstruction and/or interference

under both Florida and federal law.”

The magistrate judge found that the gas gun was used only in response to

threats posed by the demonstrators. For example, the magistrate judge found that

the demonstrators posed a threat when they ran towards the Gonzalez’s property

upon the agents’ arrival and then refused to return to the opposite side of the street

barricade upon the agents’ requests. The magistrate judge further found that, as a

result, an agent sprayed the Israeli gas gun in the direction of the demonstrators

who were advancing on the property. The magistrate judge found that the gun was

used again when the demonstrators behind the barricade posed a threat by surging

towards the front of the barricade while throwing objects including rocks, bottles,

a stool, and coolers at the agents and refused to comply with the verbal and

17
physical commands of the agents. Based on these undisputed findings of fact, we

agree with the district court that such obstruction and interference posed by the

demonstrators justified the use of either pepper spray or tear gas and was

objectively reasonable under the circumstances.

Additionally, the trial plaintiffs contend that the district court’s findings of

fact that the Israeli gas gun contained oleoresin capsicum (“OC spray”), or pepper

spray, are clearly erroneous because the parties agreed in the Joint Pretrial

Stipulations that the gas gun was filled with 0-chlorobenzalmalononitrile (“CS

gas”), or tear gas. After reviewing the trial transcript, we conclude that the district

court’s findings of fact are supported by testimony presented at trial. (R. Vol. 7,

Trial Tr. Vol. IV at 45, 47-48.) “For a reviewing court to conclude that a district

court clearly erred in its finding of fact, the reviewing court, after examining the

entire record, must be left with the definite and firm conviction that a mistake has

been committed.” Lykes Bros., Inc. v. United States Army Corps of Eng’rs, 64

F.3d 630, 636 (11th Cir. 1995) (internal quotation omitted). Having reviewed the

entire record, we are not left with the definite and firm conviction that a mistake

has been committed. There is evidence that supports both the district court’s

finding and the trial plaintiffs’ contention. When there is evidence supporting

18
conflicting findings of fact, “the resolution of such factual disputes is the province

of the trial court.” Id.

V. CONCLUSION

For the foregoing reasons, we affirm the district court’s final judgment

entered in favor of the government.

AFFIRMED.

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