Opinion
CIVIL ACTION NO. 7:15-CV-552
01-05-2021
M.D.C.G., individually and a/n/f of N.L.M.C., a minor, et al., Plaintiffs v. UNITED STATES of America, Defendant.
Mark Dollar Clore, Samuel K. Allen, Pro Hac Vice, Clore Law Group LLC, Charleston, SC, Christine Lockhart Poarch, Poarch Law, Salem, VA, for Plaintiffs. Eric Paxton Warner, U.S. Attorneys’ Office, McAllen, TX, for Defendant.
Mark Dollar Clore, Samuel K. Allen, Pro Hac Vice, Clore Law Group LLC, Charleston, SC, Christine Lockhart Poarch, Poarch Law, Salem, VA, for Plaintiffs.
Eric Paxton Warner, U.S. Attorneys’ Office, McAllen, TX, for Defendant.
ORDER GRANTING DEFENDANT'S RENEWED MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF JMAE'S REMAINING CLAIM AND MOOTING PLAINTIFF JMAE'S MOTION FOR LEAVE TO AMEND COMPLAINT
Randy Crane, United States District Judge
I. Background
Now before the Court are Defendant United States of America's Renewed Motion to Dismiss and/or Motion for Summary Judgment as to Plaintiff JMAE's Remaining Claim (Dkt. No. 84), and Plaintiff JMAE's Motion for Leave to Amend Complaint as to that claim (Dkt. No. 91). This case originated, in the words of the Fifth Circuit, from a "horrific day from hell" for three native Hondurans—Plaintiffs MDCG, her 15-year-old daughter, NLMC, and their 14-year old family friend, JMAE—after they crossed the United States-Mexico border without authorization and were apprehended by U.S. Customs and Border Protection ("CBP") Border Patrol Agent Esteban Manzanares, who proceeded to drive Plaintiffs around to various locations where he physically and (in the case of the two minor females) sexually abused them, one by one. M.D.C.G. v. United States , 956 F.3d 762, 765 (2020). First came MDCG, then NLMC, who were discovered by other CBP agents in the field and transported to the hospital while the perpetrator—identified by the injured victims as a man matching the description of an agent—remained at large, and JMAE missing. Finally came JMAE, who Manzanares left constrained in a remote area while he turned in his official vehicle and checked out from his shift, then retrieved with his personal vehicle and took to his apartment. JMAE's abuse ended hours later with the suicide of Manzanares, "who was found dead, with JMAE tied to his bed, when alerted law enforcement arrived[.]" Id.
JMAE, along with additional Plaintiffs MDCG, individually and as next friend of her daughter, NLMC, brought suit in this Court on December 23, 2015, seeking to hold the United States liable under the Federal Tort Claims Act ("FTCA") for injuries inflicted on them by Manzanares. (Dkt. No. 1). The parties do not dispute that, pursuant to this Court's ensuing Orders on Defendant's initial Rule 12(b) Motion and Motion for Summary Judgment, the Court's Rule 54(b) entry of final judgment on MDCG and NLMC's claims, and the Fifth Circuit's decision on appeal of that judgment, all Plaintiffs’ assault and battery, false imprisonment/arrest, intentional and negligent infliction of emotional distress, negligence, and negligent hiring and retention claims, as well as MDCG and NLMC's negligent supervision claims, are subject to dismissal for want of jurisdiction. See (Dkt. Nos. 21, 61, 65, 84, 86). With respect to JMAE's sole, remaining claim for negligent supervision, which this Court stayed pending appeal, Defendant re-urges dismissal or summary judgment on the grounds that this claim, like the negligent supervision claims of the other Plaintiffs, falls within the discretionary function exception to the FTCA's waiver of sovereign immunity under the Fifth Circuit's reasoning in M.D.C.G. (Dkt. No. 84; see Dkt. No. 65). JMAE disagrees, noting the Fifth Circuit's reliance on the observation in Tonelli v. United States , 60 F.3d 492, 496 (8th Cir. 1995), that "[i]ssues of employee supervision ... generally involve the permissible exercise of policy judgment and fall within the discretionary function exception," and herself relying on Tonelli ’s ensuing recognition of an exception to that general rule where the government "fail[s] to act after notice of illegal action[.]" (Dkt. No. 86); M.D.C.G. , 956 F.3d at 772 ; Tonelli , 60 F.3d at 496 (emphasis added). JMAE asserts that "[t]he seminal, factual distinction" between her fellow Plaintiffs’ negligent supervision claims considered by the Fifth Circuit, and her remaining claim, is that the latter involves the alleged failure by CBP supervisory staff to act "after having notice of the illegal behavior by its agent [Manzanares] and prior to [Manzanares's] ongoing and continuing illegal activity which caused the majority of [JMAE's] harm." (Dkt. No. 86 at pp. 3-4). Therefore, her claim falls within the " Tonelli exception" to the general rule that negligent supervision claims are excepted from the FTCA's waiver of immunity. E.g. , (id. at p. 5).
JMAE's claims were originally brought by DEG as next friend of JMAE, but upon reaching the age of majority, JMAE requested and this Court granted her substitution as Plaintiff. See (Dkt. Nos. 93, 95).
In its reply, Defendant characterizes JMAE's argument as "factually inaccurate and legally deficient for several reasons," discussed infra , first because "at no time in Plaintiff's complaint does she allege that CBP failed to properly supervise Manzanares after having notice that he had committed illegal acts against MDCG and NLMC." (Dkt. No. 89 at p. 2) (emphasis in original). Thus, Defendant casts JMAE's appeal to the Tonelli exception as "a new factual theory raised for the first time in Plaintiff's response brief," and "not properly before this Court." (Id. ). Although JMAE disputes that she has asserted a new theory in the manner alleged by Defendant, out of an abundance of caution, she filed the Motion for Leave to Amend her Complaint to plead this theory with greater clarity and specificity. (Dkt. No. 91). Defendant opposes the Motion for Leave, arguing that it fails the more stringent standard which must be applied at this stage of the proceedings. (Dkt. No. 94).
Upon consideration of the Motions and the parties’ responsive briefing, in light of the relevant law, the Court finds that JMAE's proposed amendment is unnecessary, that the Tonelli exception has not been recognized by the Fifth Circuit and does not otherwise apply, and that summary judgment must be granted on JMAE's negligent supervision claim, which falls within the discretionary function exception and is subject to dismissal without prejudice for lack of jurisdiction.
II. JMAE's Motion for Leave to Amend Her Complaint
As an initial matter, the Court rejects Defendant's suggestion that JMAE's original, pleaded allegations deprive her of the ability to rely on the Tonelli exception in response to Defendant's renewed Motion, and finds that JMAE need not prevail on her request for leave to amend to secure that ability. Admittedly, Plaintiffs’ Original Complaint—still JMAE's live pleading—makes generalized claims of negligent supervision. See (Dkt. No. 1 at ¶¶ 40, 49, 71). However, even at this earliest stage, Plaintiffs included factual allegations setting forth a timeline of assaults of a criminal nature that began with MDCG, who was eventually discovered by CBP agents and described the perpetrator as "dressed just like you," and ended with JMAE, who Manzanares took to a remote area and tied to a tree for a few hours before he returned, took her to his apartment, and abused her for several hours before committing suicide. See (id. at ¶¶ 14-39, 51 n.2; Dkt. No. 91 at p. 2). After extensive discovery, the summary judgment record clarified that timeline—it placed agents’ discovery of the injured MDCG before Manzanares returned his official vehicle at the end of his shift, then left in his personal vehicle to retrieve JMAE—as well as other facts surrounding the supervision of Manzanares on that day, and the Court's summary judgment Order construed Plaintiffs’ negligent supervision claims as premised on: (1) the alleged failure by Manzanares's direct supervisor, Luis Solis, to monitor and confirm his subordinate's whereabouts in the field despite the presence of "red flags" indicating a need to do so; and (2) the alleged failure by CBP supervisory staff to account for their agents, whether through a "roll call" or by making interior inspections of vehicles returning from shift, after discovering the injured MDCG. See (Dkt. No. 61 at pp. 33-34, 41-42); M.D.C.G. , 956 F.3d at 771. Although the Fifth Circuit found the first alleged failure to fall squarely within the discretionary function exception, it did not consider the second, as it relates only to JMAE's claim. See M.D.C.G. , 956 F.3d at 771-73. As it did in its prior Order, this Court finds sufficient basis in Plaintiffs’ operative pleading, as supplemented by the summary judgment record, to support a claim—whether or not it may ultimately proceed—that CBP was negligent in its supervision of Manzanares after encountering the injured MDCG. JMAE's assertion that this encounter (and/or the one with NLMC that followed) placed CBP on notice of "illegal acts" so as to invoke an exception to a jurisdictional bar is not a "new factual theory," but an argument for the Court's exercise of jurisdiction over a claim already found to exist, and the Court will consider it. JMAE's Motion for Leave to Amend her Complaint is moot.
The Court interpreted the summary judgment evidence to reflect that CBP supervisor Oscar Silva conducted a cursory, exterior inspection of Manzanares's vehicle when Manzanares first returned to the station from his shift, and that it was not until hours later than an interior inspection of the same vehicle disclosed "items of interest," such as used duct tape, discarded black restraints, a black sheath for a knife, and blood, that aided in identifying Manzanares as the perpetrator. (Dkt. No. 61 at pp. 24-26, 33).
In its summary judgment Order, the Court found that the second, alleged failure could only have resulted in damages to JMAE, and MDCG and NLMC have not challenged this finding. (Dkt. No. 61 at p. 45).
III. Defendant's Renewed Motion to Dismiss or for Summary Judgment
A. Standard of Review
Defendant moves to dismiss JMAE's negligent supervision claim, in the first instance, under Federal Rule of Civil Procedure 12(b)(1), but as the Fifth Circuit observed in this very case, "when the issue of jurisdiction is intertwined with the merits, district courts should ‘deal with the objection as a direct attack on the merits of the plaintiff's case under either Rule 12(b)(6) or Rule 56.’ " (Dkt. No. 84); M.D.C.G. , 956 F.3d at 768-69 (quoting Montez v. Dep't of Navy , 392 F.3d 147, 150 (5th Cir. 2004) ). Since application of the discretionary function exception, and also the exception to the exception on which JMAE relies, turn on facts developed through discovery—facts that also inure to the ultimate issue of CBP's negligence—the Court finds Defendant's alternative Motion for Summary Judgment the more appropriate vehicle for considering the parties’ jurisdictional arguments.
A district court must grant summary judgment when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). A fact is material if it might affect the outcome of the lawsuit under the governing law, and is genuinely in dispute only if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A party moving for summary judgment has the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings and materials in the record, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; FED. R. CIV. P. 56(a), (c). Once the moving party carries its burden, the burden shifts to the nonmovant to go beyond the pleadings and provide specific facts showing the existence of a genuine issue for trial. Celotex , 477 U.S. at 324, 106 S.Ct. 2548 ; FED. R. CIV. P. 56(c). In conducting its review of the summary judgment record, the court "may not make credibility determinations or weigh the evidence" and must resolve doubts and reasonable inferences regarding the facts in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ; Anderson , 477 U.S. at 255, 106 S.Ct. 2505 ; Dean v. City of Shreveport , 438 F.3d 448, 454 (5th Cir. 2006). However, the nonmovant cannot satisfy its burden with "conclusory allegations, speculation, and unsubstantiated assertions which are either entirely unsupported, or supported by a mere scintilla of evidence." Chaney v. Dreyfus Serv. Corp. , 595 F.3d 219, 229 (5th Cir. 2010) ; see also Brown v. City of Houston , 337 F.3d 539, 541 (5th Cir. 2003) ("Unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment.").
B. Fifth Circuit's Application of Discretionary Function Exception to MDCG and NLMC's Claims on Appeal
The starting point for the Court's analysis of Defendant's renewed appeal to the discretionary function exception is the Fifth Circuit's recent decision in this case, in which it found that the exception applied to MDCG and NLMC's claims of negligent supervision. The Fifth Circuit's analysis began "with the fundamentals": "[t]he United States has sovereign immunity from any lawsuit, unless that sovereign immunity has been waived." M.D.C.G. , 956 F.3d at 767-68. The FTCA waives that immunity when an injury is
caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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.
Id. at 768 (quoting 28 U.S.C. § 1346(b)(1) ) (emphasis omitted). However, "there are several statutory exceptions to the FTCA's waiver of sovereign immunity," of which the discretionary function exception is one; it "excludes tort claims against the United States that are ‘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.’ " Id. (quoting 28 U.S.C. § 2680(a) ). "Whether a government employee's actions fall within the discretionary function exception ‘involves two inquiries: (1) the conduct must be a matter of choice for the acting employee; and (2) the judgment [must be] of the kind that the discretionary function exception was designed to shield.’ " Id. at 771-72 (quoting Tsolmon v. United States , 841 F.3d 378, 382 (5th Cir. 2016) ). "If either one of these conditions is not met, the discretionary function exception fails to protect the United States from suit." Id. at 772.
In applying the two-prong test to MDCG and NLMC's negligent supervision claims, which were premised on the alleged failure by Manzanares's immediate supervisor, Luis Solis, "to monitor Manzanares, to confirm his whereabouts, and to protect the plaintiffs from abuse," the Fifth Circuit agreed with this Court that, in the absence of any mandatory rule directing otherwise, "Solis had a choice in how to supervise Manzanares." Id. at 772. The Fifth Circuit approached the second prong, which posed the query "whether Solis's judgment in choosing how to supervise Manzanares is the kind of judgment ‘that the discretionary function exception is designed to shield,’ " with the understanding that "Congress created the discretionary function exception to protect legislative and administrative decisions from judicial second-guessing." Id. "Thus, decisions that are susceptible to legislative or administrative considerations are the type of judgments that fall within the discretionary function exception." Id. Although this Court's summary judgment Order found the absence of any legitimate policy considerations underlying Solis's judgment, and therefore declined to apply the discretionary function exception, the Fifth Circuit disagreed with this analysis:
We agree with other circuits that have held that federal employees’ supervision of subordinates involves the kind of judgment that the discretionary function exception was meant to protect. See, e.g., Gordo-González v. United States , 873 F.3d 32, 37 (1st Cir. 2017) ; Snyder v. United States , 590 F. App'x 505, 509–10 (6th Cir. 2014) ; Burkhart v. Wash. Metro. Area Transit Auth. , 112 F.3d 1207, 1217 (D.C. Cir. 1997) ; see also Tonelli v. United States , 60 F.3d 492, 496 (8th Cir. 1995) ("Issues of employee supervision and retention generally involve the permissible exercise of policy judgment and fall within the discretionary function exception."). An agency's supervision of its employees involves matters of balancing management interests in the administration and operation of the agency to carry out effectively its governmental mission. For example, a Border Patrol supervisor's decisions with respect to how often to communicate with his field agents may be guided by the balancing of his need to divide his attention between multiple employees and his duty to ensure the safety of individual agents. Or the supervisor's judgment in how closely to monitor agents will be informed by the need to manage his resources efficiently. Thus, whatever Solis's reasons for failing to monitor more closely Manzanares's whereabouts, his supervisory decisions encapsulate the essence of the discretionary function exception.
In sum, MDCG points us to no directive that specifically prescribed how Solis was to oversee Manzanares, and supervisory judgments are the type of judgments that the discretionary function exception protects. The discretionary function exception to the FTCA therefore bars MDCG and NLMC's negligent supervision claims. It follows that the district court erred when it reached the merits of those claims, and we reverse and vacate its decision in this respect.
Id. at 773-74. The Fifth Circuit recognized that the issue of whether the discretionary function exception applied to JMAE's pending negligent supervision claim was not before it, but noted that "[t]he district court's disposition of JMAE's remaining claim[ ] must not be inconsistent with this opinion." Id. at 773 n.9.
C. Application of Fifth Circuit's Decision to JMAE's Claim
1. Defendant's Arguments
Defendant submits that the only disposition consistent with the Fifth Circuit's reasoning is that JMAE's negligent supervision claim—again, premised on the alleged failure by CBP supervisors to account for their agents, whether through a "roll call" or by making interior inspections of vehicles returning from shift, after discovering the injured MDCG—also meets the second prong of the discretionary function test, and is excepted from the FTCA's waiver of sovereign immunity. (Dkt. No. 84). Specifically, Defendant asserts that the decision whether or not to do a roll call or interior vehicle inspection involves the same balancing of interests found to be at play in Solis's monitoring of his agents, and that the inquiry ends here, since the Court need not look to whether CBP supervisors actually balanced those interests, or to their reasons for failing to take the desired actions. (Dkt. No. 84 at pp. 9-10); see M.D.C.G. , 956 F.3d at 772-73 (observing that "decisions that are susceptible to legislative or administration considerations are the type of judgments that fall within the discretionary function exception's scope," and that "whatever Solis's reasons for failing to monitor more closely Manzanares's whereabouts, his supervisory decisions encapsulate the essence of the discretionary function exception"); Gonzalez v. United States , 851 F.3d 538, 544 (5th Cir. 2017) (relevant inquiry is not whether decisionmaker in fact engaged in a policy analysis, but whether decision was susceptible to policy analysis).
This Court's previous Order concluded that JMAE's claim meets the first prong of the relevant test because the summary judgment record contains no mandatory directive regarding the supervision of agents under these circumstances, and JMAE has supplied no basis to reconsider that finding. (Dkt. No. 61 at pp. 24-26).
2. JMAE's Response
JMAE responds by relying on the Eighth Circuit's decision in Tonelli , the final case to which the Fifth Circuit cited when agreeing with other circuits that "federal employees’ supervision of subordinates involves the kind of judgment that the discretionary function exception was meant to protect." (Dkt. No. 86); M.D.C.G. , 956 F.3d at 772. Whereas the Fifth Circuit's language appears to sweep all negligent supervision claims under the umbrella of the second prong, Tonelli took a different view; it recognized that "[i]ssues of employee supervision and retention generally involve the permissible exercise of policy judgment and fall within the discretionary function exception," but qualified that the action before it potentially invoked an exception to the general rule. Tonelli , 60 F.3d at 496 (emphasis added). In relevant part, Tonelli involved the plaintiffs’ allegations that "postal workers repeatedly peeked at and pilfered the adult materials contained in their post office box," that the plaintiffs’ complaint to a desk clerk about these alleged violations of postal laws "put the post office on notice because [the clerk] himself had a duty to personally report this complaint," and that the post office took no action until the plaintiffs again complained to the postmaster several months later, culminating in a sting operation in which a single employee was arrested. Id. at 493-95. Among other claims, the plaintiffs asserted that the postmaster acted negligently in failing to properly supervise his employees, and the district court granted summary judgment in the government's favor. Id. at 494. On the plaintiffs’ appeal, the government invoked the jurisdictional bar of the discretionary function exception, and the Eighth Circuit quickly disposed of the first step of the operative test, since the plaintiffs "ha[d] not alleged that the post office failed to follow a specific mandatory rule." Id. at 496. Turning to the second step, the Court noted the general rule that negligent supervision claims satisfy this step, but found significant that the action before it "involve[ed] allegations that the post office failed to act when it had notice of illegal behavior," since "[f]ailure to act after notice of illegal action does not represent a choice based upon plausible policy considerations." Id. Finding the issue of notice—that is, whether notice to the clerk put the post office on notice of illegal acts—factually "unresolved," the Eighth Circuit reversed the district court's grant of summary judgment and remanded for development of this issue consistent with the Court's opinion. Id. at 495-96.
In relying on Tonelli , the Fifth Circuit cited to this language, albeit without the emphasis. See M.D.C.G. , 956 F.3d at 772.
JMAE now asks this Court to recognize the Tonelli exception, and to apply it here, arguing that "the supervisory failures of CBP that occurred following notice of the illegal tort activity by one of its agents ... were not choices based on plausible policy considerations, nor are they the kind of choices the discretionary function exception was designed to shield." (Dkt. No. 86 at p. 5).
3. Analysis
The first difficulty with JMAE's appeal to Tonelli , as Defendant's reply points out, is that the decision is not binding on this Court. (Dkt. No. 89 at p. 2). JMAE emphasizes that the Fifth Circuit's binding decision in M.D.C.G. cited to Tonelli , but again, it did so to support the reasoning that "federal employees’ supervision of subordinates involves the kind of judgment that the discretionary function exception was meant to protect." M.D.C.G. , 956 F.3d at 772. This language appears to leave no room for any exception, and given the editorial choice to relegate Tonelli to "see also " status at the conclusion of the string cite, and to cite only to the general rule contained therein, the Court does not read the Fifth Circuit's reliance on Tonelli as an endorsement of the exception on which JMAE relies. Instead, the Court must apply the expansive language directly endorsed by M.D.C.G. , and agrees with Defendant that it fairly encompasses JMAE's negligent supervision claim. Like Solis's monitoring of agents in the field, CBP supervisors’ decisions about when and how to account for those agents in response to a developing emergency involve the balancing of management interests, among them safety concerns and resource allocation. See M.D.C.G. , 956 F.3d at 772. Regardless of whether CBP supervisory staff actually conducted that balancing, and regardless of supervisors’ reasons for failing to more quickly account for agents through a roll call, or by eschewing the typical, cursory inspection of agents’ vehicles for a more comprehensive, interior one, the relevant supervisory judgments were of the type that the discretionary function exception protects. See id.
JMAE disputes this—not only by appealing to Tonelli , but also by characterizing the neglected roll call and vehicle inspections as the kinds of "basic, routine or mundane tasks" found to lack any policy undergirding. See (Dkt. No. 86 at pp. 18, 23) (citing Gibson v. United States , 809 F.3d 807, 813-815 (5th Cir. 2016) (in FTCA case in which plaintiffs sued for injuries sustained from a fall while exiting a FEMA-owned trailer, concluding that FEMA's decision about how customers would enter and exit trailers concerned "a mundane, administrative, garden-variety, housekeeping problem" far removed from policies applicable to the agency's mission, and "was not the type of judgment the discretionary function exception was designed to protect")). Here, however, to focus on two potential means of carrying out a supervisory decision is to ignore the nature of the decision itself, which in the Court's view, is susceptible to the same balancing of interests as Solis's supervision of agents in the field.
Even assuming that M.D.C.G. allows for application of the Tonelli exception to JMAE's claim, the Court agrees with Defendant that the exception does not apply here, for a singular reason: it covers only the failure to act after notice of illegal conduct, not the failure to act more quickly or differently upon receipt of that notice, which is the only failure at issue here. (Dkt. No. 89 at pp. 7-8). Again, the potentially dispositive (and unresolved) question in Tonelli was whether the plaintiffs’ complaint to the desk clerk imputed notice of illegal actions to the post office, in which case supervisory officials’ failure to act on that complaint could not have "represent[ed] a choice based on plausible policy considerations." Tonelli , 60 F.3d at 496. Here, regardless of whether field agents’ discovery of the injured MDCG imputed the requite notice of illegal conduct to CBP supervisors, JMAE does not suggest that CBP did nothing at all. Rather, she asserts that it did too little, too late—a suggestion with evidentiary support, but also one that underscores the discretionary function involved. See, e.g. , (Dkt. No. 86 at pp. 13-17). JMAE's negligent supervision claim is excepted from the FTCA's waiver of immunity, and the Court must dismiss it for lack of jurisdiction.
This is a disputed issue, but the Court need not resolve it. See (Dkt. No. 86 at pp. 12-17; Dkt. No. 89 at pp. 5-7).
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IV. Conclusion
For the foregoing reasons, the Court hereby ORDERS that JMAE's Motion for Leave to Amend her Complaint is MOOT , and that Defendant's Renewed Motion to Dismiss and/or Motion for Summary Judgment is GRANTED insofar as it requests summary judgment on JMAE's single, remaining negligent supervision claim, which claim is DISMISSED without prejudice for lack of jurisdiction.
SO ORDERED this 5th day of January, 2021, at McAllen, Texas.