Opinion
Civil Action DR-22-CV-00005-AM-VRG
05-01-2023
MARIA E. MARKOWITZ CROY, Individually and as Personal Representative of the Estate of JAMES PAUL MAR KOWITZ, Deceased; and AALIYAH BRITTANY SOTO, as Next Friend of P.J.M., a Minor Child, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.
REPORT AND RECOMMENDATION
VICTOR ROBERTO GARCIA UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE ALIA MOSES, CHIEF UNITED STATES DISTRICT JUDGE
The Court referred the above-captioned matter to the undersigned for initial proceedings consistent with 28 U.S.C. § 636(b). This matter is pending before the Court on a Motion to Dismiss filed by the United States of America, Defendant, under Federal Rule of Civil Procedure (FRCP) 12(b)(1), and in the alternative, FRCP 12(b)(6). For the following reasons, it is recommended that Defendant's Motion to Dismiss [ECF No. 35] be GRANTED IN PART and DENIED IN PART. Plaintiffs' claims regarding screening Mr. Markowitz and failure to train and supervise CBP agents should be DIMISSED WITHOUT PREJUDICE.
Dismissals based on lack of subject matter jurisdiction are without prejudice. Campos v. United States, 888 F.3d 724, 738 (5th Cir. 2018).
I. BACKGROUND
A. Procedural Background
On February 2, 2022, Plaintiffs filed their Complaint against the United States. (Compl., ECF No. 1.) After Defendant filed a Motion to Dismiss, Plaintiffs moved for leave to amend their complaint, which was granted. (Mot. for Leave, ECF No. 31; Order Granting Leave, ECF No. 32.) Plaintiffs filed their First Amended Complaint on November 22, 2022. (First Am. Compl., ECF No. 33.) In that pleading, Plaintiffs assert negligence under the Federal Tort Claims Act (FTCA), “Failure to Train and Supervise under the FTCA,” survival, and wrongful death. (Id. at 3-7) On December 12, 2022, Defendant filed this Motion to Dismiss, arguing Plaintiff's claims should be dismissed under the discretionary function exception to the FTCA or, in the alternative, for failure to state a claim. (Mot. to Dismiss at 1.) Plaintiff filed a Response to the Motion (Pl.'s Resp, ECF No. 41), and Defendant filed a Reply. (Reply, ECF No. 48.)
B. Factual Background
The following facts are in the Plaintiffs' complaint and incorporated into the Defendant's Motion. (First Am. Compl. at 1-3; Mot. to Dismiss at 1-2.) James Paul Markowitz was arrested “by U.S. Immigration and Customs Enforcement (‘ICE')” agents on February 4, 2020, around 3:30 p.m. (First Am. Compl. at 3). After his arrest, he remained in ICE custody at an “agency station.” (Id.) At 6 p.m., “CBP agents observed [he] was in distress.” (Id. at 3.) The agents “summon[ed] an ambulance [at] approximately 6:26 p.m.” (Id.) Mr. Markowitz tragically died at Val Verde Regional Medical Center later that night. (Id. at 1.) An autopsy revealed Mr. Markowitz had ingested a small bag containing cocaine and methamphetamine prior to his death. (Id. at 3.)
II. DISCUSSION
A. STANDARD OF REVIEW
i. 12(b)(1)
“Federal courts are courts of limited jurisdiction [and it] must [be] presume[d] that a suit lies outside this limited jurisdiction ....” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001) (citations omitted). As the party invoking federal jurisdiction, the plaintiff bears the burden to establish that federal jurisdiction exists. See id. “Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to challenge the subject matter jurisdiction of the district court to hear a case.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam). A Rule 12(b)(1) motion to dismiss should be granted only if it appears certain that the plaintiff cannot prove a plausible set of facts that establish subject matter jurisdiction. See Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). “[U]nder Rule 12(b)(1), the court may find a plausible set of facts by considering any of the following: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Id. (quotation omitted).
ii. 12(b)(6)
“A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief ....” Fed.R.Civ.P. 8(a)(2). Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of a complaint that “fail[s] to state a claim upon which relief can be granted ....” Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, 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 Twombly, 550 U.S. at 570); accord Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). “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.” Iqbal, 556 U.S. at 678. Accordingly, “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of . . . entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal citations, quotations, and alterations omitted); accord Ackerson v. Bean Dredging LLC, 589 F.3d 196, 208 (5th Cir. 2009). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Instead, “[f]actual allegations must be enough to raise a right to relief above the speculative level ....” Twombly, 550 U.S. at 555. That is, there must be “a ‘showing,' rather than a blanket assertion, of entitlement to relief.” Id. at 555 n.3 (quoting Fed.R.Civ.P. 8(a)(2)). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘shown' - ‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (alteration omitted) (quoting Fed.R.Civ.P. 8(a)(2)).
A Rule 12(b)(6) motion to dismiss “is viewed with disfavor and is rarely granted.” Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (quotation omitted); accord Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
Therefore, the complaint must be liberally construed in the plaintiff's favor, all reasonable inferences must be drawn in favor of the plaintiff's claims, and the factual allegations of the complaint must be taken as true. See Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1986).
iii. Conversion under 12(d)
Defendant attached to its Motion an affidavit of a Border Patrol Agent. (Ex. 1 to Mot. to Dismiss, ECF No. 35-1.) Accordingly, Plaintiff requests that the Motion be converted to one for summary judgment under Federal Rule of Civil Procedure 12(d). (Pl.'s Resp. at 4-6.) Rule 12(d) requires a motion under 12(b)(6) or 12(c) to be converted to a motion for summary judgment if “matters outside the pleadings are presented to and not excluded by the court.” Fed.R.Civ.P. 12(d).
If the jurisdictional question sufficiently overlaps with the merits of the case, the case should be converted to a motion for summary judgment. See Montez v. Dept. of the Navy, 392 F.3d 147, 150 (5th Cir. 2004); Tindall v. United States, 901 F.2d 53, 55 n.5 (5th Cir. 1990) (per curiam). The 5th Circuit has held that the discretionary function exception should be reviewed under the 12(b)(1) standard. Walding v. United States, 955 F.Supp.2d 759, 770 (5th Cir. 2013) (citing Hix v. U.S. Army Corps of Eng'rs, 155 Fed.Appx. 121, 128 n.8 (5th Cir. 2005); Ford v. Am. Motors Corp., 770 F.2d 465, 468 (5th Cir. 1985)). Additionally, the “Court may consider outside matter [sic] attached to a motion to dismiss without first converting it into a motion for summary judgment if the material is pertinent to the question of the District Court's jurisdiction. . .” Alabama ex rel. Baxley v. Woody, 473 F.2d 10, 12 (5th Cir. 1973); accord Kennedy v. United States, No. SA-21-CV-00441, 2021 U.S. Dist. LEXIS 167545, *3 (W.D. Tex. Sept. 3, 2021). Accordingly, the undersigned can consider the affidavit when analyzing the discretionary function exception under 12(b)(1).
However, in ruling on a Rule 12(b)(6) motion to dismiss, courts generally should not go beyond the pleadings and must limit their inquiry to the facts stated in the complaint. See Fed.R.Civ.P. 12(d); Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017 (5th Cir. 1996). A court may only consider a matter outside the pleadings if it is referenced by the plaintiff's complaint and central to the plaintiff's claim. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000). Plaintiffs' First Amended Complaint does not reference the affidavit submitted by the Defendant. Therefore, the affidavit does not fit into the limited exception to Rule 12(d). Thus, the court can either disregard the affidavit or convert the Motion to Dismiss to one for summary judgment. See Arena v. Calhoun, No. SA-16-CV-01203-XR, 2017 U.S. Dist. LEXIS 39197, at *6 (W.D. Tex. 2017). Because this Motion can be decided without reference to the affidavit, the undersigned will disregard the affidavit in the analysis below.
B. DISCRETIONARY FUNCTION EXCEPTION
“As the sovereign, the United States is immune from suit unless, and only to the extent that, it has consented to be sued.” Truman v. United States, 26 F.3d 592, 594 (5th Cir. 1994). The FTCA is a limited waiver of the federal government's sovereign immunity from claims sounding in state tort law for money damages. Spotts v. United States, 613 F.3d 559, 566 (5th Cir. 2010). The FTCA “provides district courts with jurisdiction over monetary claims against the Government for the negligent or wrongful acts of its employees ‘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.'” Id. (quoting 28 U.S.C. 1346(b)(1)); see also Johnson v. Sawyer, 47 F.3d 716, 727 (5th Cir. 1995) (en banc). The FTCA provides that a suit against the United States is the exclusive remedy for damages for injury or loss of property “resulting from the negligent or wrongful conduct of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 2679(b)(1). But there are several exceptions to the FTCA's waiver of sovereign immunity which must be “strictly construed in favor of the government.” Truman, 26 F.3d at 594.
One such exception is the discretionary function exception, which retains the United States' immunity for: “[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a); see also Gonzalez v. United States, 851 F.3d 538, 543 (5th Cir. 2017). “It remains an open question which party retains the ultimate burden of proof on the applicability of the discretionary function exception. Regardless of which party bears the ultimate burden of proof, at the pleading stage, the plaintiff must allege a claim that is facially outside the exception.” Walding, 955 F.Supp.2d at 770 (citing St. Tammany Parish v. FEMA, 556 F.3d 307, 315 n.3 (5th Cir. 2009)).
The Supreme Court has developed a two-part test for determining whether agency conduct qualifies as a discretionary function or duty. See United States v. Gaubert, 499 U.S. 315, 322 (1991). Under the first prong, the conduct must be a “matter of choice for the acting employee.” Berkovitz v. United States, 486 U.S. 531, 536 (1988). “The exception covers only acts that are discretionary in nature, acts that ‘involve an element of judgment or choice ....'” Gaubert, 499 U.S. at 322 (quoting Berkovitz, 486 U.S. at 536); see also Gonzalez, 851 F.3d at 543. Thus, “‘it is the nature of the conduct, rather than the status of the actor, that governs whether the exception applies.” Gaubert, 499 U.S. at 322 (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 813 (1984)). If a statute, regulation, or policy leaves it to a federal agency to determine when and how to take action, the agency is not bound to act in a particular manner and the exercise of its authority is discretionary. See id. at 329. “The requirement of judgment or choice is not satisfied” and the discretionary function exception does not apply, however, “if a ‘federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,' because ‘the employee has no rightful option but to adhere to the directive.'” Id. at 322 (quoting Berkovitz, 486 U.S. at 536). In other words, the discretionary function exception does not apply if the challenged actions in fact violated a federal statute, regulation, or policy. See id. at 324, 327.
Further, mere use of mandatory language, such as “shall” in a policy, statute, or regulation is not conclusive of whether a non-discretionary duty exists: “the question is whether there is an element of discretion in the policy statement.” Arita v. United States, 470 F.Supp.3d 663, 689 (S.D. Tex. 2020) (citing Patel v. United States, 398 Fed.Appx. 22, 29 (5th Cir. 2010)); Lopez v. United States Immigration & Customs Enforcement, 455 Fed.Appx. 427, 433 (5th Cir. 2011). Further, to satisfy the first prong of the analysis, the policy must “prescribe a specific course of action for an agency or employee to follow,” as opposed to more generalized statements. Gonzalez, 851 F.3d at 546; Guile v. United States, 422 F.3d 221, 231 (5th Cir. 2005).
Under the second prong of the test, “even ‘assuming the challenged conduct involves an element of judgment,'” and does not violate a nondiscretionary duty, courts must decide whether the “‘judgment is of the kind that the discretionary function exception was designed to shield.'” Gaubert, 499 U.S. at 322-23 (quoting Berkovitz, 486 U.S. at 536). “Because the purpose of the exception is to ‘prevent judicial “second-guessing” of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort,' when properly construed, the exception ‘protects only governmental actions and decisions based on considerations of public policy.'” Id. at 323 (quoting Berkovitz, 486 U.S. at 537; Varig Airlines, 467 U.S. at 814 (internal citation omitted)). In this regard, “if a regulation allows the employee discretion, the very existence of the regulation creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations.” Id. at 324. “The proper inquiry is not whether the official in fact engaged in a policy analysis when reaching his decision but instead whether his decision was susceptible to policy analysis.” Gonzalez, 851 F.3d at 544 (quotations and alterations omitted). Further, “[i]n performing the two-prong test, the question of whether the government was negligent is irrelevant.” Id.
In their Amended Complaint, Plaintiffs assert three main categories of breaches by the United States. Each one will be discussed in turn.
i. Failure to Properly Screen
Plaintiffs' claim that agents failed to properly screen Mr. Markowitz is barred by the discretionary function exception. Plaintiffs identify National Standards Section 4.3 as creating a non-discretionary duty to negate the first prong of the analysis. Section 4.3 states in relevant part:
Medical Issues: Upon a detainee's entry into any CBP hold room, officers/agents must ask detainees about, and visually inspect for any sign of injury, illness, or physical or mental health concerns and question the detainee about any prescription medications. Observed or reported injuries or illnesses should be communicated to a supervisor, documented in the appropriate electronic system(s) of record, and appropriate medical care should be provided or sought in a timely manner.U.S. Customs and Border Protection, National Standards on Transport, Escort, Detention, and Search, § 4.3 at 14 (Oct. 2015). As a preliminary matter, it is unclear whether Plaintiffs allege the agents failed to screen Mr. Markowitz entirely or whether they did not sufficiently screen him for health issues. (First Am. Compl. at 4). Plaintiffs make no specific allegations at all regarding the extent of the screening, if any, that occurred. Plaintiffs also do not clarify their contention in their Response to the Motion to Dismiss. (See generally, Pl.'s Resp.) Therefore, Plaintiffs fail to state a plausible set of facts showing the existence of subject matter jurisdiction.
However, even if the bare assertions put forward by Plaintiffs on the record were sufficient, the discretionary function exception still bars this claim. Although Section 4.3 uses mandatory language requiring inquisition and inspection, it does not prescribe the specific questions nor the manner of inspection; that is left to the sound discretion of the CBP agents. See § 4.3. Accordingly, Section 4.3 involves an element of discretion, and the first prong of the analysis is satisfied. See Huff v. Neal, 555 Fed.Appx. 289, 298 (5th Cir. 2014) (per curiam).
Further, the decisions involved in the screening of Mr. Markowitz are susceptible to a policy analysis. Safety decisions by administrators and officers in a penal facility are susceptible to a policy analysis and therefore covered by the discretionary function exception. Huff, 55 Fed.Appx. at 298; Nichols v. United States, No. 21-50368, 2022 U.S. App. LEXIS 8936, at *7 (5th Cir. April 1, 2022) (per curiam); Morales v. United States, EP-07-CA-44-KC, 2008 U.S. Dist. LEXIS 62885, at *4 (W.D. Tex. July 21, 2008); Arita, 470 F.Supp.3d at 690-91. Therefore, Plaintiffs claims relating to a failure to screen Mr. Markowitz for health issues should be dismissed.
ii. Failure to Train or Supervise Employees
Plaintiffs' claim that Defendant failed to train or supervise its agents falls under the discretionary function exception as well. First, Plaintiffs do not point to any policy, regulation, or statute that controls Defendant's course of action regarding training or supervision of employees. Additionally, training and supervision of employees are barred by the discretionary function because it is necessarily based on policy considerations. M.D.C.G. v. United States, 956 F.3d 762, 772 (5th Cir. 2020); Walding, 955 F.Supp.2d at 782; Rivera v. United States, No. EP-15-CV-00021-KC, 2016 U.S. Dist. LEXIS 4651, *40 (W.D. Tex. 2016). Therefore, the Court has no jurisdiction over this claim.
iii. Failure to Timely Contact Emergency Medical Services
However, because Plaintiffs' claim regarding failure to time contact emergency medical services is not subject to the discretionary function claim, this claim should survive Defendant's 12(b)(1) Motion to Dismiss. To show a non-discretionary duty related to this claim, Plaintiffs cite National Standards Section 4.10, which states, in relevant part:
Medical Emergencies: Emergency medical services will be called immediately in the event of a medical emergency (e.g., heart attack, difficulty breathing) and the call will be documented in the appropriate electronic system(s) of record. Officers/Agents must notify the shift supervisor of all medical emergencies as soon as possible after contacting emergency services.
U.S. Customs and Border Protection, National Standards on Transport, Escort, Detention, and Search, § 4.10 at 17 (Oct. 2015). The Parties point to different cases in their arguments as to whether National Standards Section 4.10 provides a discretionary duty.
Plaintiffs cite Carcamo-Lopez v. Doe to argue that, even if National Standards Section 4.10 creates contains an element of discretion to satisfy the first prong, the decision to contact emergency medical services “is not a policy decision that is protected by the discretionary function exception” under the second prong. (Pl.'s Resp. at 15.) In Carcamo-Lopez, the Court held that a Border Patrol agent's decision to drive an injured immigrant to a place more accessible for emergency medical services was not covered by the discretionary function exception. 865 F.Supp.2d 736, 758 (W.D. Tex. 2011). The Border Patrol policy in that case stated that “Border Patrol Agents who encounter individuals who are injured are required to take immediate action to obtain medical attention for the injured party." Id. at 754. The Court held that, although that decision allowed the agent “to use his judgment when deciding how to secure medical care,” he “did not have to weigh the allocation of scarce resources, nor was he confronted with a broad emergency situation.” Id. at 758. He “had only one issue to consider, namely, the [immigrant's] health.” Id. “[The agent's] decision may usefully be considered as one relating to the best method of delivering medical care, a balancing of the need for speed against the need for specific equipment. The Border Patrol policy sets the broad policy that medical care should be delivered to suspected aliens, but this does not mean that any action an agent takes to obtain that medical care is protected from suit.” Id. at 756-57.
Defendant cites to Arita v. United States to support its position. (Mot. to Dismiss at 6-7.) In Arita, the District Court for the Southern District of Texas held that a CBP policy stating that “any observed or reported injury or illness must be reported, and appropriate medical care must be provided or sought in a timely manner” was subject to the discretionary function exception because “what constitutes ‘appropriate medical care' necessarily relies on the discretion and policy judgments of the acting employees.” 470 F.Supp.3d 663, 689-90 (S.D. Tex. 2020). The agents involved “needed to balance his requests for medical aid against the medical severity, the resources available including security, the requests of other detainees, and the governmental policy and expertise in dealing with” the situation. Id. at 690.
First, the language of National Standards Section 4.10 creates a non-discretionary duty. It covers 1) when an agent must act (immediately) and 2) the actions the agents must take (contact emergency medical services and notify the shift supervisor). It could be argued that what constitutes a medical emergency is up to the discretion of the agents. Indeed, the 5th Circuit Court of Appeals has held that deciding what medical conditions are sufficient to interrupt “count” in a prison is up to the discretion of BOP officials. Dorsey v. Relf, 559 Fed.Appx. 401, 403 (5th Cir. 2014) (per curiam). However, the policy controlling in this case does not contain the same discretionary, i.e. sufficiency, language as the policy in Dorsey. See id; see also § 4.10.
The policy at issue here states that when a medical emergency, such as difficulty breathing or a heart attack, is present an agent must immediately contact emergency medical services and notify the supervisor.
Further, even if National Standards Section 4.10 is discretionary, the decision on when to contact medical services is not the kind of decision meant to be barred by the discretionary function exception. Much like the situation presented in Carcamo-Lopez, the main consideration in this case is the health of Mr. Markowitz; the agents “did not have to weigh the allocation of scarce resources, nor was he confronted with a broad emergency situation.” Carcamo-Lopez, 865 F.Supp.2d at 758. Accordingly, the discretionary function exception does not apply, and this claim should survive Defendant's 12(b)(1) Motion.
C. Failure to State a Claim
Because the undersigned recommends Plaintiffs' claim regarding contact of emergency medical services not be dismissed under 12(b)(1), the undersigned will analyze that claim only under Defendant's alternative 12(b)(6) Motion. Plaintiffs' claim meets the plausibility pleading standard under 12(b)(6), and, therefore, the undersigned recommends the 12(b)(6) Motion to Dismiss be denied to the extent it applies to this claim.
Claims brought under the FTCA rely on tort law of the state in which the act or omission occurred. 28 USCS § 1346(b)(1). In Texas, the elements of negligence are 1) duty, 2) breach of that duty, and 3) damages proximately caused by the breach. IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). Plaintiffs plead Defendant, through its agents, breached a duty to Mr. Markowitz by failing to provide or obtain medical treatment for Mr. Markowitz and this proximately caused damages. (First Am. Compl. at 4.) Although the factual allegations are not elaborate, Plaintiffs allege that Mr. Markowitz was in the custody of CBP when he experienced medical distress (Id.) Further, Plaintiffs claim that the agents waited 26 minutes to call emergency medical services. (Id.) Finally, they assert this alleged breach, failing to contact emergency medical services, caused Mr. Markowitz death and pain and suffering as well as loss of affection, consortium, comfort, and more for the Plaintiffs. (Id. at 4,7-8.) Making all reasonable inferences in favor of the Plaintiffs and taking their well-pleaded facts as true, the First Amended Complaint states a plausible negligence claim. Accordingly, the undersigned recommends Plaintiffs' First Amended Complaint, to the extent it asserts a negligence claim based on failure to provide timely medical care to Mr. Markowitz, not be dismissed under Federal Rule of Civil Procedure 12(b)(6).
Finally, Plaintiffs' wrongful death and survival should also not be dismissed. A survival cause of action is a personal injury claim of the decedent in favor of the heirs, legal representatives, and estate of the decedent. Tex. Civ. Prac. & Rem. Code § 71.021. Plaintiffs have alleged a negligence claim on behalf of Mr. Markowitz in their capacity as his heirs and as personal representative of his estate. (First Am. Compl. at 1, 6.) Additionally, in a wrongful death cause of action, “a person is liable for damages arising from an injury that causes an individual's death if the injury was caused by the person's or his agent's or servant's wrongful act, neglect, carelessness, unskillfulness, or default.” Tex. Civ. Prac. & Rem. Code § 71.002(b). Plaintiffs allege that Defendant's negligence caused Mr. Markowitz's death. (First Am. Compl. at 7.) One of Plaintiffs' negligence claims is still pending; therefore, their survival and wrongful death causes of action should survive Defendant's 12(b)(6) Motion.
III. CONCLUSION
For the reasons set forth in this report and recommendation, it is RECOMMENDED that Defendant's Motion to Dismiss [ECF No. 35] be GRANTED IN PART and DENIED IN PART. The undersigned recommends that Plaintiffs' negligence claims related to training and supervision of CBP agents and the screening of Mr. Markowitz be DISMISSED WITHOUT PREJUDICE; the remainder of Plaintiffs' claims should remain pending.
The Parties may wish to file objections to the above recommendations. Failure to file written objections to the findings and recommendations contained in this Report and Recommendation within fourteen (14) days from the date of its receipt shall bar an aggrieved party from receiving de novo review by the District Court of the findings and recommendations contained herein, see 28 U.S.C. 636(b)(1)(C), and shall bar an aggrieved party, except on grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). This Report and Recommendation does not dispose of all issues and controversies referred to the undersigned in the above-captioned cause.