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Shuler v. United States

May 29, 2007

CHARLES SHULER, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No. 17

MEMORANDUM OPINION

DENYING THE PLAINTIFF'S MOTION TO ALTER OR AMEND

I. INTRODUCTION

The plaintiff, Charles Shuler, is permanently paralyzed after surviving a gunshot wound to the back. He claims that Kevin Gray, a convicted first degree murderer, ordered his murder after discovering that Shuler worked as a confidential informant for the Federal Bureau of Investigation and assisted law enforcement authorities in Gray's apprehension.*fn1 He brings suit against the United States, arguing that his identification as a government informant stemmed from the government's negligence in protecting his identity and in protecting him from Gray and Gray's criminal entourage. The court, concluding that the defendant is entitled to sovereign immunity, granted the government's motion to dismiss. Now, the plaintiff asks the court to reconsider this ruling, arguing that the court misapplied Ochran v. United States, 117 F.3d 495, 500 (11th Cir. 1997). Because the court's ruling contained no legal error, the court denies the plaintiff's motion to alter or amend the judgment.

II. BACKGROUND

A. Factual Background

As it did in considering the defendant's motion to dismiss, the court draws all inferences in favor of the plaintiff's factual allegations. The plaintiff was a confidential informant for the FBI, the Drug Enforcement Agency, and the United States Attorney's Office for the District of Columbia. Compl. ¶¶ 8, 9. He assisted these law enforcement agencies in various criminal investigations, including the investigation of Kevin Gray. Id. ¶ 9. In early December 1999, the plaintiff informed the FBI of Gray's whereabouts, but "warned the FBI not to apprehend Mr. Gray immediately because only the Plaintiff had knowledge of Mr. Gray's location."*fn2 Id. The plaintiff was concerned that if the FBI immediately arrested Gray, Gray would know that the plaintiff was a government informant. Id. Immediately upon receiving information regarding Gray's location from the plaintiff, law enforcement officials arrested Gray. Id. These actions effectively "disclosed to Mr. Gray that the Plaintiff was an informant." Id. ¶ 18. The plaintiff then assisted the FBI in locating and apprehending Gray's lieutenants. Id. ¶ 19. The government made "assurances" to the plaintiff that itwould protect him from these individuals.*fn3 Id. ¶¶ 19, 20.

On December 15, 1999, roughly two weeks after the authorities apprehended Gray, the plaintiff was shot in the back. Id. ¶ 24. The plaintiff alleges that the shooter was acting on Gray's orders. Id. Although the plaintiff survived the shooting, he is permanently paralyzed. Id. The plaintiff argues that, as a matter of law, his involvement as an informant "created a special relationship" between himself and federal law enforcement which made the authorities "responsible for his safety and protection." Id. ¶ 25.

The plaintiff argues that the defendant "owed a duty of care to the Plaintiff to conceal his identity as an informant, to provide protection to the Plaintiff consistent with national standards of care [and] to avoid placing Plaintiff in inherent danger." Id. ¶ 27. The plaintiff also alleges that the defendant owed the plaintiff a duty of care "to inform [him] of critical information concerning the danger . . . created by the Defendant's acts or omissions, [and] to provide advisement and supervision of Plaintiff's activities as an informant consistent with the national standards of care and protocol" of federal law enforcement authorities. Id.

B. Procedural Background

The defendant filed a motion to dismiss under Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, arguing that the plaintiff's complaint is barred by the discretionary function exception to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2871 et seq. and the private analogue requirement for suits brought under that act. Def.'s Mot. to Dismiss. Concluding that the defendant was entitled to sovereign immunity, the court granted the government's motion to dismiss on August 21, 2006. Mem. Op. (Aug. 21, 2006). Specifically, the court ruled that because the plaintiff made no allegation of an explicit promise to protect the plaintiff, the government's decision to protect him constitutes a discretionary function under the Federal Tort Claims Act. Id. at 10-11. The plaintiff now seeks reconsideration of that ruling.

III. ANALYSIS

A. Legal Standard for Rule ...


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