United States District Court, W.D. Washington, Tacoma
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS
BENJAMIN H. SETTLE United States District Judge.
matter comes before the Court on Defendant United States of
America's motion to dismiss (Dkt. 43). The Court has
considered the pleadings filed in support of and in
opposition to the motion and the remainder of the file and
hereby grants in part and denies in part the motion for the
reasons stated herein.
October 4, 2016, Plaintiff Alvaro Mendez
(“Mendez”) filed a Fourth Amended Complaint
asserting claims for assault, battery, negligence,
intentional infliction of emotional distress, and negligent
infliction of emotional distress. Dkt. 37
February 23, 2017, the Government filed the instant motion to
dismiss counts 1, 2, 4, and 5 for lack of jurisdiction. Dkt.
43. On March 13, 2017, Mendez responded. Dkt. 44. On March
16, 2017, the Government replied. Dkt. 45.
March of 2015, Immigration and Customs Enforcement
(“ICE”) identified Mendez as a person subject to
deportation, and Mendez was subsequently placed in custody at
the Northwest Detention Center. FAC ¶¶ 2.1-2.2. On
June 10, 2015, Mendez alleges that Defendant Joseph Tucker, a
guard at the center, assaulted him while he was waiting in
line for religious services. Id. ¶¶
2.6-2.10. Relevant to the instant motion, Mendez also alleges
Plaintiff was prevented from attending the religious service
that day. On subsequent days, plaintiff did not attend his
religious service due to intimidation and fear of being
Is believed, and therefore alleged, that a substantial
motivating factor for Defendant Tucker to violently shove
Plaintiff was to prevent him from attending the Catholic
Id. ¶¶ 2.11, 2.12.
on this conduct Mendez asserts numerous claims, including the
intentional and negligent infliction of emotional distress.
In relevant part, Mendez asserts as follows:
Defendants' acts of shoving and pushing/shoving
Plaintiff, preventing plaintiff from attending church
service, yelling derogatory language while Plaintiff was
injured and suffering, doing this in front of all the other
detainees, and not providing prompt medical treatment and/or
delaying medical attention caused Plaintiff severe and
extreme emotional distress.
Defendant Tucker and the other Defendants had a duty to
provide a safe detainee environment. Defendant Tucker and the
other defendants breached their duty by shoving and
pushing/shoving Plaintiff, preventing Plaintiff from
attending church service, yelling derogatory language while
Plaintiff was injured and suffering, doing this in front of
all the other detainees, and not providing prompt or delaying
medical attention. As a direct and proximate cause of
Defendant Tucker's and the other defendant's breach
of their duty, Plaintiff has suffered extreme emotional
distress and damages to be proven at trial. Defendant Tucker
and the other defendants knew, or ...