Case: 19-40076 Document: 00515389893 Page: 1 Date Filed: 04/21/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-40076 April 21, 2020 Lyle W. Cayce M.D.C.G., Individually, as next friend N.L.M.C., A Minor, Clerk Plaintiff - Appellant v. UNITED STATES OF AMERICA, Defendant - Appellee Appeal from the United States District Court for the Southern District of Texas Before JOLLY, SMITH, and STEWART, Circuit Judges. E. GRADY JOLLY, Circuit Judge: This appeal has its beginnings on a horrific day from hell. After apprehending MDCG, her fifteen-year-old daughter NLMC, and their fourteen-year-old family friend JMAE for entering the United States without authorization, and after loading them into his vehicle, Border Patrol Agent Esteban Manzanares drove around to various locations in the South Texas countryside where he physically and sexually abused the three helpless immigrants. This abuse included rape, beatings, knife body-carvings, strangulations, and the attempted burial of a living victim. The day from hell climaxed with suicide—of the Border Patrol Agent who was found dead, with JMAE tied to his bed, when alerted law enforcement arrived at his apartment. Case: 19-40076 Document: 00515389893 Page: 2 Date Filed: 04/21/2020 No. 19-40076 MDCG and the two minors brought suit against the United States under the Federal Tort Claims Act (FTCA), asserting claims of assault and battery, false imprisonment/false arrest, intentional and negligent infliction of emotional distress, negligence, and negligent hiring, retention, and supervision. Under Fed. R. Civ. P. 12(b)(1), the district court dismissed the plaintiffs’ claims based on Manzanares’s conduct, holding that Manzanares’s actions fell outside the scope of his employment. Following discovery, the district court granted summary judgment on the negligent supervision claims brought by MDCG on behalf of herself and NLMC. The district court denied the government’s motion for summary judgment on the negligent supervision claims brought on behalf of JMAE. Under Fed. R. Civ. P. 54(b), the district court entered final judgment as to all claims brought by MDCG, individually and as next of friend of NLMC. MDCG appeals both the 12(b)(1) dismissal and grant of summary judgment. 1 Alas, the FTCA does not extend a helping hand to the victims of Agent Manzanares. We conclude that Manzanares’s conduct was outside the scope of his employment, and accordingly, we AFFIRM the district court’s dismissal of MDCG and NLMC’s claims based on Manzanares’s conduct. We further hold that the FTCA’s discretionary function exception deprived the district court of subject matter jurisdiction over MDCG and NLMC’s negligent supervision claims. We thus VACATE the portion of the district court’s judgment which addressed the merits of the negligent supervision claims and REMAND those claims to the district court to DISMISS for lack of jurisdiction. 1 JMAE’s negligent supervision claim is the only claim that survived the district court’s 12(b)(1) and summary judgment rulings. But the district court has yet to enter judgment on JMAE’s dismissed claims. Thus, none of JMAE’s claims are the subject of this appeal. 2 Case: 19-40076 Document: 00515389893 Page: ...
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