Opinion
Civil Action No. 20-cv-00753-CMA-KLM
02-08-2021
JANELLE N. CANODY, Plaintiff, v. THE UNITED STATES, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendant's Motion to Dismiss Plaintiff's Complaint [#16] (the "Motion"). Plaintiff, who proceeds in this matter pro se, filed a Response [#21] in opposition to the Motion [#16], Defendant filed a Reply [#29], Plaintiff filed a Supplemental Brief [#33], and the Defendant filed a Response to the Supplemental Brief [#42]. Pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Federal Rule of Civil Procedure 72(a) and (b), the Motion [#16] has been referred to the undersigned for a recommendation. See [#15]. The Court has reviewed the Motion [#16], Response [#21], Reply [#29], Supplemental Brief [#33], Response to Supplemental Brief [#42] the entire case file and the applicable law, and is fully advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#16] be GRANTED and the case be DISMISSED WITHOUT PREJUDICE.
"[#16]" is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Recommendation.
The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-521 (1972). In doing so, the Court should not be the pro se litigant's advocate, nor should the Court "supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, a pro se litigant must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
The parties were granted leave to file the latter two briefs. See Minute Orders [#32, #39].
I. Background
Plaintiff filed this lawsuit on March 18, 2020, asserting claims related to the shooting death of her father at the Rainbow Falls camping area in Pike National Forest. See Compl. [#1]. Thus, on July 3, 2015, Plaintiff Janelle Canody was camping at the Rainbow Falls Campground in the Pike National Forest with her husband, Chris Cordova, and her father, Glenn Martin. Compl. [#1] at 8. At some point during the day, Chris Cordova notified two Forest Service employees "that he could hear active target shooting occurring in close proximity to his camping area." Id. at 7. The Forest Service employees did not stop the shooting. Id. at 8. "Less than an hour later . . . Glenn Martin was shot by an errant bullet and died[.]" Id. Plaintiff "was not personally present at the crime scene" and did not witness her father's death. Id. at 9. Although Plaintiff acknowledges that the Forest Service "did not shoot the gun that killed [Mr.] Martin," she alleges that they "allow[ed] the circumstances for the bullet that killed him" by virtue of their "inadequate enforcement and negligence to a danger" that was reported to them. Id.at 7; see also 9 (alleging Mr. Martin's death "could have been avoided" had the Forest Service exercised "due diligence" by "adequate[ly] monitoring . . . the campground, stopping the target shooting and enforcing the gun prohibition laws"). The person who shot Plaintiff's father was never found, and Plaintiff asserts "the homicide case is still unsolved." Id. at 8.
As to the Rainbow Falls area at issue, Defendant provides a Declaration of Dave Condit who is employed by the U.S. Forest Service. See Decl. [#16-1]. Mr. Condit explains that the Rainbow Falls camping area is "undeveloped, not marked, and dispersed throughout an area of approximately 2500 acres, along many miles of roads and through rough terrain." Id. at 3. The area is located within the Pike National Forest and is part of the Pikes Peak Ranger District ("District"). Id. The District encompasses over 230,000 acres of National Forest Land and is managed by about 30 Forest Service Employees. Id. On busy weekends, Mr. Condit states that the District can expect over 100,000 visitors. Id. Rainbow Falls is considered an off-highway vehicle and trail use area. Id. It includes hundreds of camping sites that are not marked, and no fees or permits are required to use the camping sites. Id.
This exhibit and other exhibits discussed in this Recommendation are properly considered in connection with Defendant's subject matter jurisdiction argument under Rule 12(b)(1). Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). They are not considered in connection with any arguments made under Rule 12(b)(6). See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (tError! Main Document Only.he sufficiency of a complaint must generally rest on its contents alone, subject to certain exceptions).
While Plaintiff claims that the campsites at Rainbow falls are developed, attaching pictures showing that some of these sites have fire pits and flat areas for parking and pitching tents [#23], Mr. Condit explains that those have been developed and maintained by users of the campsites, not by the Forest Service. Supp. Condit Decl. [#29-1] ¶ 4.
Shooting is prohibited in "the roads and trails that are generally accessed from the Rainbow Falls Trailhead," but this prohibition does not include the adjacent forest land. Condit Decl. [#16-1] at 4. There are no fences, signs, or distinguishing features separating the Rainbow Falls shooting-closure area from the adjacent public and private land. There is, however, signage on the Rainbow Falls trailhead "that alerts visitors to gun-use restrictions that apply to the area[,] . . . [which] was up at the time of the incident" in July 2015. Id. For example, a three-panel kiosk at the Rainbow Falls Trailhead parking lot alerts visitors to gun-use restrictions and provides a map showing the areas where shooting is prohibited. Id.
Because of the proximity of lawful shooting areas to the Rainbow Falls area, the Forest Service and local law enforcement receive frequent complaints about gun fire from Rainbow Falls visitors. Condit Decl. [#16-1] at 6-7. Much of the gun fire that can be heard in the Rainbow Falls area is from guns being fired from lawful shooting areas. Id. at 7. Plaintiff notes that Defendant's exhibits demonstrate that the Rainbow Falls campground is surrounded quite extensively by non-shooting areas, see Response [#21] at 1-2, but it is undisputed that shooting areas are also located nearby. As Mr. Condit explains, "[t]here are numerous areas where shooting is particularly common around the Rainbow Falls recreation area[,]" such as the Turkey Tracks dispersed shooting site located directly across the road to the west of the Rainbow Falls area. . . ." Condit Decl. [#16-1] and Attachments 1 and 2).
According to Defendant, there were 88 firearms-related incident reports, violation notices, and warning notices in 2013, 317 in 2014, and 164 in 2015. Supp. Condit Decl. [#29-1] ¶ 8 and Attachment 1. There were a larger number in 2014 in conjunction with new target shooting bans in several areas of the District. Id. Plaintiff, on the other hand, states that firearms-related incidents and warnings rose from 33 in 2013-14 to 450 in 2014-15. Supp. Brief [#33] at 3 (citing a Gazette.com news article). The different numbers provided by the parties do not affect the Court's analysis.
Turning to Plaintiff's claims, Plaintiff first asserts a claim of negligence under the Federal Tort Claims Act "due to breach of duty of USDA Forest Rangers employee's failure to enforce prohibition laws against target shooting within the Pike National Forest . . . [which] lead [sic] to the death of plaintiff's father, which in turn led to plaintiff [sic] psychological injury." Compl. [#1] at 6. Plaintiff alleges that the Forest Service employees were negligent because "the gun laws were not enforced with reasonable efforts" when they failed to stop the nearby shooting that Mr. Cordova alerted them to. Id. at 7. Plaintiff also argues that the Forest Service should have warned users of the Rainbow Falls area that illegal shooting is known to occur. Supp. Brief [#33] at 4-5. In her second claim, Plaintiff challenges the same conduct but asserts that Defendant, as a landowner under the Colorado Premises Liability Act, breached its duty to Plaintiff's father as an invitee. Id. at 8. Specifically, Plaintiff asserts that Defendant "fail[ed] to exercise the reasonable care and authority to protect against the dangers of which [Defendant] knew of and enforce the shooting regulations within the Pike National Forest." Id. at 8.
On September 13, 2017, Plaintiff alleges that she was diagnosed by a therapist with "[a]nxiety with [p]anic [d]isorder and [s]evere [d]epression" due to her father's death in 2015. Compl. [#1] at 5. "Plaintiff began her process of request for administrative claim injury on June 10th, 2018[,]" which is within the "2 year accrual time frame to file a claim[.]" Id. at 6. On September 24, 2019 Plaintiff received a letter from the U.S. Department of Agriculture Office of General Counsel "stating that plaintiff's claim was being denied and that plaintiff may file suit against the United States in an appropriate U.S. District Court" within six months. Id.
Defendant seeks to dismiss Plaintiff's claims under Fed. R. Civ. P. 12(b)(1) and (6). See Motion [#16] at 2. Defendant argues that that the Court lacks subject-matter jurisdiction over the claims and that Plaintiff fails to state a claim for relief. Id.
II. Legal Standard
A. Rule 12(b)(1)
The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to test whether the Court has jurisdiction to properly hear the case before it. Because "federal courts are courts of limited jurisdiction," the Court must have a statutory basis to exercise its jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed. R. Civ. P. 12(b)(1). Statutes conferring subject-matter jurisdiction on federal courts are to be strictly construed. F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). "The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction." Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: a facial attack or a factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a facial attack on a complaint, the Court accepts the allegations of the complaint as true. Id. By contrast, when reviewing a factual attack on a complaint, the Court "may not presume the truthfulness of the complaint's factual allegations." Id. at 1003. With a factual attack, the moving party challenges the facts upon which subject-matter jurisdiction depends. Id. The Court therefore must make its own findings of fact. Id. In order to make its findings regarding disputed jurisdictional facts, the Court "has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing." Id. (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987)). The Court's reliance on "evidence outside the pleadings" to make findings concerning purely jurisdictional facts does not convert a motion to dismiss pursuant to Rule 12(b)(1) into a motion for summary judgment pursuant to Rule 56. Id.
B. Rule 12(b)(6)
Rule 12(b)(6) tests "the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). To survive a Rule 12(b)(6) motion, "[t]he complaint must plead sufficient facts, taken as true, to provide 'plausible grounds' that discovery will reveal evidence to support plaintiff's allegations." Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[P]lausibility refers to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiff[ ] [has] not nudged [his] claims across the line from conceivable to plausible." Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (internal quotations and citations omitted).
Similarly, "[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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, "[a] pleading that offers 'labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do. Nor does the complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (citation omitted). That said, "[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests;" the 12(b)(6) standard does not "require that the complaint include all facts necessary to carry the plaintiff's burden." Khalik, 671 F.3d at 1192 (citation omitted).
Further, "[t]he plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that defendant has acted unlawfully." Iqbal, 566 U.S. at 678 (citation omitted). As the Tenth Circuit has explained, "the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 556 U.S. at 678 (citation omitted).
III. Analysis
Defendant asserts that "[l]iberally construing the Complaint, Plaintiff seeks to bring two claims of negligence against Defendant under the Federal Tort Claims Act ('FTCA')." Motion [#16]. Defendant further asserts that the FTCA "is the exclusive remedy for persons, like Plaintiff, with claims for money damages resulting from the allegedly negligent or wrongful actions of federal employees taken within the scope of their employment." Id. (citing 28 U.S.C. § 2679(b)(1)). The Motion [#16] contends that the Court lacks subject-matter jurisdiction over both claims because Congress has not waived the United States' sovereign immunity, and that Plaintiff's allegations fail to state a claim as they are barred under the Colorado Recreational Use Statute, Colo. Rev. Stat. § 33-41-103. See, e.g., Motion [#16].
The Court first addresses whether the Court has subject matter jurisdiction over the FTCA claims and then separately addresses Plaintiff's Premises Liability Act claim and Defendant's argument that the claims are barred by the Colorado Recreational Use Statute.
A. FTCA and the Discretionary Function Exception
"Sovereign immunity generally shields the United States, its agencies, and its officers acting in their official capacity from suit." Normandy Apartments, Ltd. v. U.S. Dep't of Housing, 554 F.3d 1290, 1295 (10th Cir. 2009)). The defense of sovereign immunity is jurisdictional and deprives courts of subject-matter jurisdiction. Id. A party seeking to assert a claim against the United States must thus "point to a specific waiver of immunity in order to establish jurisdiction." Id.
Under the FTCA, the United States "waives sovereign immunity with respect to certain injuries for certain state law torts claims against the United States." Garling v. United States Environmental Protection Agency, 849 F.3d 1289, 1294 (10th Cir. 2017). Thus, 28 U.S.C. § 1346(b)(1) gives the court "exclusive jurisdiction over civil actions on claims against the United States, for money damages, . . . for injury or loss of property, or personal injury or death 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." 28 U.S.C. § 1346(b)(1).
Several exceptions exist, however, to the waiver of sovereign immunity under the FTCA. See Garling, 849 F.3d at 1294 (citing 28 U.S.C. § 2680(a)-(n)). "When an exception applies sovereign immunity remains, and federal courts lack jurisdiction." Id. In this case, Defendant relies on the discretionary function exception. See Motion [#16] at 7. This exception states that the United States is not liable 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). The discretionary function "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." Berkovitz v. United States, 486 U.S. 531, 536 (1988) (internal quotation marks omitted). Claims that fall within the exception are barred regardless of whether the challenged conduct "was a matter of deliberate choice or mere oversight," Kiehn v. United States, 984 F.2d 1100, 1105 (10th Cir. 1993), and even if there was actionable negligence, Elder v. United States, 312 F.3d 1172, 1184 (10th Cir. 2002).
The Supreme Court has made clear that "'it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary exception applies in a given case.'" Berkovitz, 486 U.S. at 536 (citation omitted). A two-step analysis is applied to determine the applicability of the exception. First, the court must consider "whether the action is a matter of choice for the acting employee[,]" as "conduct cannot be discretionary unless it involves an element of judgment or choice." Id. "[T[he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow[,]" as in that event, "the employee has no rightful option but to adhere to the directive." Id. Second, if the Court finds that the challenged conduct involves an element of judgment or choice, the Court must next "determine whether that judgment is of the kind that the discretionary function exception was designed to shield." Id. If the plaintiff can show that either prong is not met, then the exception does not apply and a claim may proceed. Sydnes v. United States, 523 F.3d 1179, 1183 (10th Cir. 2008).
1. First Prong of Berkovitz Test
The Tenth Circuit has held that a plaintiff "need[s] to point to regulatory language that mandates a course of action to avoid the first part of the discretionary-function exception." Clark v. United States, 695 F. App'x 378 (10th Cir. 2017). In other words, the plaintiff must point to "a specific and mandatory regulation, statute or policy" that "requires a particular course of action." Sydnes, 523 F.3d at 1185. The burden is on the Plaintiff "to present evidence of a discretion-constraining regulation or policy." Id.
By way of explanation, in Ball v. United States, 18-cv-01461-REB-NRN, 2019 WL 2173783, at *2 (D. Colo. 2019), the plaintiff brought suit under the FTCA against the United States after the death of his teenage daughter on U.S. Forest Service Land. The plaintiff's daughter drove her car into an abandoned mine shaft after mistakenly turning off the proper Forest Service road. Id. In an attempt to avoid the discretionary function exception under the FTCA, the plaintiff cited regulations that described the Forest Service's duties to maintain Forest Service roads and warn or abate hazards on roads. Id. District Judge Robert Blackburn of this Court found those regulations did not "set forth mandatory duties[,]" instead, they "describe[d] a multi-factor procedure to be used as a guide . . . [where] [e]ach of the steps . . . require the use of discretion." Id. (emphasis in original). Because the cited regulations "identif[ied] a number of considerations . . . but [did] not specify how the Forest Service must consider or apply those factors[,]" the Court concluded that the plaintiff failed to identify discretion-constraining regulations; thus, the government satisfied the first prong of the Berkovitz test. Id.
Similarly, in Clark, the plaintiffs sought damages from the United States under the FTCA for injuries sustained while sledding at a snow area managed by the Forest Service. 695 F. App'x at 379. The plaintiffs alleged the Forest Service breached its duty to exercise ordinary care by operating the hill without supervision and that the man-made pitch was so steep it allowed sleds to travel at unsafe speeds. Id. at 681. To avoid the discretionary function exception, the plaintiff cited several sections from the Forest Service Manual that created mandatory duties to address known hazards either by correcting the conditions, closing the affected areas, or adequately warning about hazards. Id. at 383. The district court concluded that the manual did not provide discretion-constraining regulations. Id. at 386. Although mandatory duties were created by the manual to remedy an unsafe area, the Forest Service had the latitude to choose which remedy to take. Id. Because of this discretion, the cited regulations failed to mandate action, and the Court found that the first prong of the Berkovitz test was satisfied. Id. at 386-87.
Here, the Complaint [#1] cites three sections of the U.S. Code, 16 U.S.C §§ 551, 551(a), and 559(c), and one federal regulation, 36 C.F.R. § 261.10. Id. at 7. However, none of these statutes or the regulation mandate any course of action that Forest Service employees must take in responding to complaints of potentially unlawful shooting, nor do they mandate any action at all by the Forest Service. Plaintiff also cites provisions from a National Park Service's 2006 document. Response [#21] at 7. This too fails to identify any discretion-constraining regulation or policy that the Forest Service must abide by, and there are no allegations or facts that suggest National Park System policies apply to the Forest Service. Defendant affirmatively states that the Rainbow Falls recreation area is not part of a national park, and the National Park Service does not manage it. Reply [#29] at 3; Supp. Condit Decl. [#29-1] ¶ 6.
16 U.S.C § 551 grants the Secretary of Agriculture the authority to make rules and regulations to "preserve the forests thereon from destruction" and impose fines for the violation of such rules. 16 U.S.C § 551(a) provides that the Secretary of Agriculture, in connection with the administration and regulation of national forests and grasslands, is permitted to cooperate with any state or political division on lands within the National Forest system for the purpose of enforcing the laws of that state or subdivision. 16 U.S.C. § 559 provides that any employee within the Forest Service has the authority to make arrests for violation of the laws and regulations relating to the forest. 36 C.F.R. § 261.10 prohibits, among other things, the discharge of a firearm within 150 yards of a campsite.
Plaintiff did not provide a copy of this document, entitled "Management Policies 2006[,]" but Defendant notes that it is publicly available at https://www.nps.gov/policy/MP_2006.pdf. See Reply [#29 ] at 3 and n. 1.
In Plaintiff's Supplemental Brief [#33], Plaintiff cites several sections of the Forest Service Directives, which contain both the Forest Service Manual and the Forest Service Handbook. These Directives generally outline the Forest Service's "Mission, Vision, and Guiding Principles" as well as law enforcement authority of the Forest Service employees. Supp. Brief [#33] at 8-12. These sections also contain no mandatory language that would strip Forest Service employees of their discretion in responding to complaints of illegal shooting or other conduct that is challenged in this case. Two of these sections, Forest Service Manual 5303.12 and Forest Service Handbook 5309.11.31.21, discuss a Forest Protection Officer's discretion in issuing citations for certain violations, including the unlawful discharge of a firearm. Forest Serv. Manual 5303.12 (2008), Forest Serv. Handbook 5309.11.31.21 (2008). Both provide that, under specific circumstances, Forest Protection Officers are required to issue a citation for the specified violations. Id. While Forest Protection Officers must issue a citation once the unlawful conduct is discovered, the Forest Service Directives cited by Plaintiff do not mandate a particular response to a complaint. See also Resp. Supp. Brief [#42] at 4-10 (addressing each of the new policies cited by Plaintiff and explaining that they do not contain a mandatory, specific course of action that Forest Service employees must follow when responding to complaints of illegal shooting.)
Forest Service Manual 1000 - Organization and Management Manual 1020, 1020.22, 1020.3, 1021; Forest Service Manual 5300 - Law Enforcement Chapter 5301, 5301.1, 5302, 5303.11, 5303.12; 5303.5, 5304.21, 5304.3, 5304.34, 5304.61, 5310.2, 5360.12 Forest Service Handbook 5300 - Law Enforcement 5309.11.31.21.
see https://www.fs.fed.us/im/directives/.
The Court finds the Ball case instructive. The regulations cited by the plaintiff in that case related to the Forest Service's management of Forest Service roads, which was the central conduct at issue in the plaintiff's claim. Ball, 2019 WL 2173783 at* 2. Although related to the claim, the court concluded that the regulations did not mandate action and therefore the first prong of the Berkovitz test was satisfied. Id. Similarly, in Clark, the regulations cited by the plaintiff mandated that action be taken by the Forest Service but provided a choice between certain options. Clark, 695 F. App'x. at 381. The Tenth Circuit concluded that by providing options, the regulations were not discretion-constraining and therefore the first prong of the Berkovitz test was satisfied. Id. Here, the regulations cited by Plaintiff are even less related to the conduct at issue than the cited regulations in Ball—none relate to employees responding to complaints of unlawful behavior—and contain no mandate for action like the cited regulations in Clark. Therefore, following the reasoning in Ball and Clark, the Court finds that the regulations and sections of the Forest Service Directives cited by Plaintiff are not discretion-constraining, and the first prong of the Berkovitz test is satisfied.
Further supporting the Court's determination that Defendant's conduct is discretionary, Mr. Condit's Declaration [#16-1] provides information regarding the policies and rules that Forest Service employees follow regarding complaints about prohibited activities. [#16-1] at 1-2. Mr. Condit trains Forest Service employees on how to respond to complaints about prohibited activities in the Pike/San Isabel National Forests. Id. at 2. He states that the two employees alerted to the shooting by Plaintiff are Forestry Technicians. Id. at 7. Forestry Technicians are trained and qualified as Forest Protection Officers but are unarmed and generally do not make arrests. Id. The training that employees receive to become Forest Protection Officers instructs them "to exercise their best judgment in deciding whether and how to respond to complaints about potentially illegal shooting." Id. at 8. Mr. Condit further states that "[Forest Protection Officers] are not required to investigate every complaint of illegal shooting, nor are they required to intervene even if they can locate a visitor who is engaged in illegal shooting." Id. Plaintiff does not provide any evidence as authorized under Rule 12(b)(1) or allegations to refute the statements from Mr. Condit regarding how Forest Service employees respond to complaints of potentially unlawful shooting.
Plaintiff does contest several factual statements about the Rainbow Falls area made by Mr. Condit, see Response [#21] at 1-4, but none are relevant in determining whether employees have discretion when responding to complaints of potentially unlawful shooting.
2. Second Prong of Berkovitz Test
Plaintiff may still overcome the discretionary function exception to jurisdiction by demonstrating that the second prong of Berkovitz is not satisfied. Again, the second prong requires to Court to "determine whether th[e] government officials'] judgment is of the kind that the discretionary function exception was designed to shield." Berkovitz, 486 U.S. at 536-37. When no statute, regulation, or policy sets forth a required cause of action, the Court must "presume that a government agency's actions are grounded in policy" unless the challenger shows facts to the contrary. Ball v. United States, 967 F.3d 1072, 1079 (10th Cir. 2020).
Discretionary actions that Congress intended to shield are those governmental decisions "'based on considerations of public policy'—decisions "'grounded in social, economic, and political policy.'" Johnson v. U.S. Dep't of Interior, 949 F.2d 332, 336(10th Cir. 1991) (quoting Berkovitz, 486 U.S. at 536-37). The discretionary function exception is thus "designed to protect policymaking by the executive and legislative branches of government from judicial second-guessing." Garcia v. United States Air Force, 533 F.3d 1170, 1176 (10th Cir. 2008). Plaintiff may overcome the discretionary function exception by showing "that 'the nature of the actions taken' does not implicate public policy concerns, or [is not] susceptible to policy analysis.'" Sydnes, 523 F.3d at 1185 (quoting Harrell v. United States, 443 F.3d 1231, 1236 (10th Cir. 2006) (internal quotation marks omitted). The existence of a regulation that allows a government employee discretion "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." United States v. Gaubert, 499 U.S. 315, 324 (1991). Courts "do not consider the employee's subjective intent in exercising the discretion conferred by statute or regulation, but [focus] on the nature of the actions taken and on whether they are susceptible to policy analysis." Garcia, 533 F.3d at 1176.
The Supreme Court has held that day-to-day management and operation of an agency "regularly requires judgments as to which of a range of permissible courses is the wisest." Gaubert, 499 U.S. at 325. This is particularly evident here, where Defendant has presented evidence that in the Pikes Peak Ranger District alone, the Forest Service manages over 230,000 acres, including the 2,500-acre Rainbow Falls area that contains hundreds of undeveloped campsites like the site where the accident at issue in this case occurred. See Condit Decl. [#16-1] ¶¶ 7-9. Only six Forestry Technicians serve the entire District on a given day, and shooting is lawful in several places in close proximity to Rainbow Falls. Id. ¶¶ 12-14, 17. In such a situation, decisions about whether or how to investigate complaints about potentially unlawful shooting from Rainbow Falls visitors, and decisions about how to enforce the shooting prohibition in the Rainbow Falls area, depend on Forest Service employees' judgment. Id. ¶ 20. Those decisions necessarily involves balancing policy considerations. As Mr. Condit stated in his Declaration [#16-1], "the decision to respond to a particular complaint is informed by many factors, including the individual FPO's comfort level approaching and interacting with armed visitors, the nature and specificity of the complaint, the volume of other complaints, the likelihood that the complaint relates to lawful shooting, and available resources[.]" Id. at 8.
The Court finds from the foregoing that these are the types of judgment "grounded in social, economic, and political policy[,]" Berkovitz, 486 U.S. at 536, and that they meet the second element of the discretionary function exception. See Harich v. United States, 11 F. App'x 967, 2001 WL 669634, at *1 (9th Cir. June 13, 2001) (finding that the decision of the Forest Service as to whether to close areas to target practice was discretionary as it "was for the Forest Supervisor to determine whether methods existed to mitigate safety hazards, protect resources and resolve or mitigate conflict with other Forest users" and that those types of decisions" were "grounded in social, economic, and political policy,' which are not amenable to judicial second-guessing under the Federal Tort Claims Act"). This is consistent with the fact that investigative and enforcement decisions by federal agencies and officials are generally held to be susceptible to policy analysis and protected by the discretionary-function exception. Awad v. United States, No. 18-2159, 2020 WL 1816090, at *4 (10th Cir. Apr. 10, 2020) (holding the discretionary-function exception barred claims based "solely on the DEA agents' alleged negligence in conducting their investigation" and noting "the discretionary nature of that process and the policy considerations attending it"); Sharp ex rel. Estate of Sharp v. United States, 401 F.3d 440, 445-48 (6th Cir. 2005) (exception barred claim based on allegations that the Forest Service "acted negligently in providing inadequate law-enforcement services"); Hobdy v. United States, 968 F.2d 20, 1992 WL 149871, at *2 (10th Cir. 1992) (exception barred claims attacking "the manner in which the investigation was conducted" or alleging that "the investigation was negligently performed"); Redmon By & Through Redmon v. United States, 934 F.2d 1151, 1157 (10th Cir. 1991) (exception barred claims based on decision to investigate and take enforcement action against a particular airman).
Plaintiff responds that "[t]hough investigating each and every report of shooting in a 230,000-acre area would be unreasonable and costly the facts of this case are much more isolated and not of a broad and unreasonable nature." Response [#21] at 15. Plaintiff's attempt to isolate the illegal shooting report at issue here from the context in which the Forest Service makes decisions "misapprehends the nature of [the Court's] sovereign immunity inquiry." Sydnes, 523 F.3d at 1185. As the Tenth Circuit explained in rejecting a similar argument that the conditions in that case "posed a unique 'specific hazard' that could have been dealt with in a way that posed no policy issues," "courts are not to examine government decisions at that individualized scale." Ball, 967 F.3d at 1082. Instead, in determining whether the actions at issue implicate a policy concern, "[the court] operate[s] at a higher level of generality . . . asking categorically (rather than case specifically) whether the kind of conduct at issue can be based on policy concerns." Sydnes, 523 F.3d at 1185. At this higher level of generality, the decision by the Forest Service employees about whether and how to enforce the gun laws and how to respond to complaints of unlawful shooting require a balancing of interests, as explained previously. From a categorical approach, rather than the case specific inquiry Plaintiff wants the Court to undertake, Plaintiff's claim does not overcome the presumption that the discretionary actions of the Forest Service officers are grounded in policy. The second element of the discretionary function exception has thus been met.
Plaintiff's Response [#16] cites ARA Leisure Servs. v. United States, 831 F.2d 193, 196 (9th Cir. 1987), for the principle that "[t]he allocation of funds among projects ... is not a decision of the nature and quality that Congress intended to shield from tort liability." Id. at 14. The Tenth Circuit in Sydnes distinguished ARA Leisure as a case in which "government agencies charged with maintaining in good condition certain infrastructure ... had failed to do so," and "budgetary constraints were the sole policy consideration the government offered as being relevant to the kind of conduct in question, maintenance decisions." 523 F.3d at 1186. That is not the situation here. Plaintiff also cites Cleveland v. United States, 546 F. Supp. 2d 732, 763 (N.D. Cal. 2008), for the proposition that "once the [g]overnment has undertaken responsibility for the safety of a project," the implementation of safety precautions is not susceptible to a policy analysis. Response [#21] at 14-15. But Plaintiff has not identified any project for which the Forest Service took safety-related responsibility and implemented safety precautions..
Plaintiff argues, however, independent of the Forest Service's failure to enforce the gun laws in the Rainbow Falls area, that the Forest Service's failure to warn forest users about potential illegal shooting "involves public safety not public policy." Response [#21] at 4 (citing Faber v. United States, 56 F.3d 1122 (9th Cir. 1995)); Supp. Brief [#33] at 5. Plaintiff asserts, for example, that the Forest Service did not warn "that 'shooting in banned areas is common' and you enter this park at your own risk." Nor did the Forest Service "state that shooting regulations are not adequately enforced and visitors are subject to mortal danger if you camp here." Response [#21] at 4 (citing Duke v. Dep't of Agriculture, 131 F.3d 1407 (10th Cir. 1997) and Figueroa v. United States, 64 F. Supp. 2d 1125 (D. Utah)). The Court finds that this argument does not provide a basis to overcome the discretionary function exception.
The Tenth Circuit in Duke noted that "[i]n a national forest, wilderness area, or national park, there are situations in which both known and unknown hazards exist and in which a deliberate decision is made not to warn against or eliminate the hazard." 131 F.3d at 1411 (citing cases regarding decisions not to post warnings). It further noted, consistent with Plaintiff's argument, that "decisions or nondecisions involving choice" in that context are generally not within the discretionary function exception. Id.; cf. Figueroa, 64 F. Supp. 2d at 1132 ("courts have interpreted the failure to warn of a known hazard as both within and outside of the discretionary function exception"). However, in Duke and cases cited therein finding that the discretionary function exception did not apply, the challenge at issue related to an undisclosed hazard that was known of by the United States and was not warned about. See Duke, 131 F.3d at 1412 (failure to warn or protect from the danger of a boulder rolling down a man-made slope in a national park); Boyd v. United States, 881 F.3d 895, 898 (10th Cir. 1989) (failure to warn of hazards in a popular swimming area); Smith v. United States, 546 F.2d 872, 876-77 (10th Cir. 1976) (failure to warn of the hazards of thermal pool in national park); Cope v. Scott, 5 F.3d 445, 448 (D.C Cir. 1995) (failure to post adequate warning signs on road maintained by the National Park Service). The failure to warn contributed to the injury, and "the court[s] could not perceive in the record before it any significant social, economic or political policy in the action or inaction." Duke, 131 F.3d at 1411; see also Figueroa, 64 F. Supp. 2d at 1128 (failure to adequately remedy known danger of rocks falling in area). Here, it is undisputed that the hazard that caused the injury (shooting) was not a hazard that was undisclosed such as in those cases. The Forest Service specifically discussed shooting and gun-use restrictions in signage and the kiosk at the entry to the recreational area, and visitors were alerted to locations where shooting was allowed and where shooting was prohibited. Condit Decl. [#16-1] at 4-5.
Furthermore, the failure to warn of shooting in the area is not the challenged conduct of the government that is at issue in this case, i.e. the conduct that is alleged to have caused or contributed the injury. See Domme v. United States, 61 F.3d 787, 790 (10th Cir. 1995) (D.N.M. June 29, 2015) (in applying the discretionary function exception the court must "ascertain the precise governmental conduct at issue".) Conduct that is not alleged to have "caused, failed to prevent, or contributed to the injuries" is not relevant to the court's "determination of whether, under Berkovitz, the discretionary function exception applies[,]" or to the FTCA claims. Clark v. United States, No. 12-1160 MV/KBM, Civ. No. 12-1176 MV/KBM, 2015 WL 13662742, at *3 (D.N.M. June 29, 2015) (denying motion for reconsideration of ruling on motion to dismiss). As the Tenth Circuit stated in affirming the district court's decision in Clark to grant the motion to dismiss "[t]o circumvent the discretionary function exception, the mandatory duty alleged must be one whose breach bears a causal relation to the Plaintiffs' injuries, thereby giving rise to their claim against the government." Clark v. United States, 695 F. App'x 378, 386 (10th Cir. 2017).
Here, Plaintiff's theory of liability in both of her claims is based on the investigatory and enforcement decisions whereby her father's "shooting was not stopped, and the gun laws were not enforced with reasonable efforts." Compl. [#1] at 7 (Claim One); id. at 8 (Claim Two). Plaintiff further alleges that: "USDA employees are duty bound and authorized on land which are [sic] within or part of any unit of the national forest service to enforce the laws. . . .[;]" the circumstances that caused the death "were permitted by inadequate enforcement and negligence to a danger that was clearly made aware to them[;]" "[t]he shooting was not stopped and the gun laws were not enforced with reasonable efforts[;]" and "this death could have been avoided with due diligence of USDA Forest Rangers with adequate monitoring of the campground, stopping the target shooting and enforcing the gun prohibition laws in the Pike National Forest." Id. at 6-9. The failure to warn is thus not the "challenged conduct" of the United States that is the subject of the discretionary function exception, and does not provide a basis for Plaintiff to overcome it. Furthermore, Plaintiff cannot "effectively amend [her] Complaint by alleging new facts in [her] response to a motion to dismiss." In re Qwest Communications Int'l, Inc., 396 F. Supp. 2d 1178, 1203 (D. Colo. 2004).
The Court also notes other problems with Plaintiff's reliance in her Response [#21] and Supplemental Brief [#31] on a failure to warn to overcome the discretionary function exception. First, the Tenth Circuit has stated as one of the "three basic principles guiding" the analysis that "[w]here the United States has provided some warnings, it is more appropriate to view the failure to provide additional warnings as a policy-based decision than in cases where the government has failed to provide any warning at all. Clark, 695 F. App'x at 388 (citing Zumwalt v. United States, 928 F.2d 951, 955 (10th Cir. 1991) (finding that "[t]he Park Service, in choosing to mark the Trail and place warnings in a corresponding pamphlet, undertook a balancing of social, economic, and political policies" and "the exercise of discretion in determining what safety measure to implement [wa]s shielded from judicial review by the discretionary function exception")). Here, the Forest Service chose in the Rainbow Falls area to provide notice of shooting and the fact that it was allowed in some areas and prohibited in others. See [#16-1]. In not providing further warnings, such as the potential hazards associated with such shooting or that shooting could occur in illegal areas, it can be inferred under the reasoning of Clark and Zumwalt that the Forest Service balanced social, economic, and political polices. See also Duke, 131 F.3d at 1411 (stating that "[i]n a national forest, wilderness area, or national park, there are situations in which both known and unknown hazards exist and in which a deliberate decision is made not to warn against or eliminate the hazard" and that "[i]n these situations the decision not to erect signs or eliminate a hazardous condition is justified by the policy of preserving the area in its pristine condition to protect the wilderness experience of the visitors).
Finally, the Court notes that while the Duke court distinguished decisions involving choice "or nondecisions involving choice[]" where the discretionary function exception was not applicable, it noted that those decisions related to "a specific hazard . . . , distinct from the multitude of hazards that might exist in, for example, a wilderness trail through a national park or forest, where warnings might detract from the area's character or safety structures might be costly." 131 F.3d at 1411. Applying that analysis here, while Plaintiff complains about the lack of warnings in the "3.91 square miles" of the camping area where the alleged homicide occurred (Response [#21] at 12), she has failed to identify why the risk of shooting to visitors in that area is distinct among the countless other areas of the 2500 acres of the Rainbow Falls recreational area or the 230,000 acres of the Pikes Peak Ranger District ("District") within which Rainbow Falls is located. Requiring a warning in any area within those locations where there is a risk of shooting might "detract" from those areas or be costly. Duke, 131 F.3d at 1411. Plaintiff's argument that the second element of the discretionary function is not met must thus be rejected.
Based on the foregoing, while the death of Plaintiff's father was tragic, the Court finds that Plaintiffs' claims fall within the discretionary function exception of the FTCA. Accordingly, it is recommended that the claims be dismissed for lack of subject matter jurisdiction.
B. Colorado Premises Liability Act
Even if the discretionary function exception did not preclude the Court from exercising jurisdiction, Plaintiff's claims would still be subject to dismissal under the FTCA because they are barred by Colorado's Recreational Use Statute ("CRUS"), Colo. Rev. Stat. § 33-41-103. As this Court has noted, FTCA claims are subject to dismissal "if the circumstances are such that, under Colorado law, the United States, in the same manner and to the same extent as a private individual, would not be held liable." Ball, 2018 WL 6173754, at *8 (citing 28 U.S.C. § 1346(b)). Thus, like private individuals, the United States is entitled to the protection of state recreational use statutes, including the CRUS. Id. at 9; see also Cox v. United States, 881 F.3d 893, 895 (10th Cir. 1989); Kirkland v. United States, 930 F. Supp. 1443, 1446 (D. Colo. 1996)
Plaintiff relies on the Colorado Premises Liability Act ("PLA"), which allows suits against landowners by invitees "for damages caused by the landowner's unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known." Colo. Rev. Stat. § 13-21-115(3)(c)(I). However, the CRUS shields landowners against certain tort liability under the PLA who have made their land available for recreational use. Kirkland, 930 F. Supp. at 1445 ("Colorado law shields rural landowners from most tort liability for damages suffered by those who come onto their land to pursue recreational activities."). Under the CRUS, with certain exceptions, a landowner "who either directly or indirectly invites or permits, without charge, any person to use such property for recreational purposes does not thereby", among other things, "confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed" or "assume responsibility or incur liability for any injury to person or property or for the death of another caused by an act or omission of such person." Colo. Rev. Stat. § 33-41-103(1)(b) and (c). The CRUS applies in this case, as the injuries occurred on Forest Service land that had been opened to public recreation. See Compl. [#1] at 8-9. Additionally, Plaintiff does not contest Defendant's evidence that there is no charge to the public for camping in the Rainbow Falls area (see Condit Decl. [#16-1]), and both camping and target shooting are expressly included in CRUS's non-exhaustive list of recreational purposes. Colo. Rev. Stat. § 33-41-102(5).
Plaintiff may, however, overcome immunity from tort liability under the CRUS by showing that an exception applies. See Colo. Rev. Stat. § 33-41-104 (identifying four circumstances under which a landowner's liability is not limited). The only exception that Plaintiffs contends is applicable here is a "willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm." Id. § 33-41-104(a). Defendant argues, however, and the Court agrees, that "Plaintiff alleges no facts from which it can plausibly be inferred that any Forest Service employees, in allegedly failing to prevent the shooting, acted willfully or maliciously." Motion [#16] at 3, 12.
Plaintiff's allegations focus on the two Forest Service employees' ultimate failure to stop the shooting. See, e.g., Compl. [#1] at 7 (alleging the Forest Service employees allowed the circumstances that resulted in Mr. Martin's death by "inadequate enforcement and negligence to a danger" that Mr. Cordova reported), 8 (alleging the "shooting was not stopped, and the gun laws were not enforced with reasonable efforts"), 9 (alleging "lack of enforcement of gun laws . . . in a campground [area] in a highly populated area on a busy 4th of July weekend is grossly negligent"). Plaintiff's Response [#21] similarly asserts that the Forest Service employees were willful because of "inadequate enforcement and negligence to warn of a danger that was clearly aware to them." Id. at 19. Such allegations first do not allow for an inference that the Forest Service employees acted maliciously, i.e. acted or failed to act "with intent to do harm." Nelson v. United States, 256 F. Supp. 3d 1136, 1157 (D. Colo. 2017) (citing Bonidy v. Vail Valley Ctr. for Aesthetic Dentistry, P.C., 232 P.3d 277, 286 (Colo. App. 2010) (malice is defined as "an intention or desire to harm another [usually] seriously through doing something unlawful or otherwise unjustified" or "revengeful or unfriendly feelings")).
The Court also finds that Plaintiff's allegations do not plausibly show that the Forest Service employees acted willfully, i.e., that they "had the subjective intent to fail to act despite actually knowing" that their inaction "was likely to cause harm." Nelson v. United States, 915 F.3d 1243, 1251 (10th Cir. 2019). Nor does Plaintiff allege facts that plausibly show the Forest Service employees acted "'voluntarily, purposefully and with a conscious disregard for the consequences of his or her conduct' and with 'no justifiable excuse.'" Id. (citation omitted). While Plaintiff asserts that "the U.S. Forest Service knew that the illegal shooting activity was likely to cause harm[,]" (Response [#21] at 19-21 and Supplemental Brief [#33] at 26-28), this is not alleged in the Complaint [#1] and Plaintiff alleges no facts therein that support such an assertion. To the extent Plaintiff has stated facts to support this argument in her Response [#21] and Supplemental Brief [#33] (pointing to other "close calls" and an accidental shooting in other areas of National Forest Service as well as shooting bans and restrictions that purportedly post-dated the July 3, 2015, incident at issue), these allegations are not properly considered as they were alleged only in Plaintiff's briefing, not in the Complaint [#1]. See Abdulina v. Eber's Temporary Servs., 79 F.3d 1201, 1206 (D. Colo. 2015). Moreover, the newspaper articles Plaintiff cites in support of these facts, see Supplemental Brief [#33] at 26-27, are not properly considered under Rule 12(b)(6), which applies to the Recreational Use Statute issue.
Accordingly, the Court finds that Plaintiff's claims are barred by the CRUS. See Otteson v. United States, 622 F.2d 516, 520 (10th Cir. 1980) (holding the Forest Service was entitled to protection under CRUS and affirming judgment in favor of the United States where "[t]he complaint on its face creates no issue of willful or malicious government conduct").
IV. Conclusion
Based on the foregoing,
IT IS HEREBY RECOMMENDED that the Motion [#16] be GRANTED, and that both of Plaintiff's claims be DISMISSED WITHOUT PREJUDICE. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) (affirming dismissal without prejudice where a claim is dismissed for lack of subject-matter jurisdiction).
IT IS HEREBY ORDERED that, pursuant to Fed. R. Civ. P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).
Dated: February 8, 2021
BY THE COURT:
/s/
Kristen L. Mix
United States Magistrate Judge