United States District Court, D. New Hampshire
DICLERICO, JR UNITED STATES DISTRICT JUDGE.
Alonzo brought suit against the United States under the
Federal Tort Claims Act, 28 U.S.C. § 2671, et seq.,
(“FTCA”), alleging that an agent of the United
States Drug Enforcement Agency (“DEA”), Michael
Connolly, negligently shot Alonzo while he was searching her
home pursuant to a warrant.The government moves to dismiss
the suit for lack of subject matter jurisdiction. Alonzo
considering a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(1), the court takes as true the
properly pleaded facts in the complaint and draws reasonable
inferences in the plaintiff's favor. Reddy v.
Foster, --- F.3d ---, 2017 WL 104825, at *2 (1st Cir.
Jan. 11, 2017). The court also considers the evidence
submitted by the parties. Carroll v. United States,
661 F.3d 87, 94 (1st Cir. 2011). The party asserting federal
subject matter jurisdiction, the plaintiff in this case,
bears the burden of showing that it exists.Johansen v.
United States, 506 F.3d 65, 68 (1st Cir. 2007).
in October of 2013, the DEA and the Manchester Police
Department were investigating suspected drug trafficking in
Manchester, New Hampshire. The investigation focused on Sammy
Garcia. Garcia was suspected of working with Jose, Jennifer,
and Johanna Nunez.
time, Lilian Alonzo lived at 110 Beech Street in Manchester,
New Hampshire, and cared for her children and grandchildren
there. Jose Nunez is Alonzo's ex-husband, and Jennifer
and Johanna Nunez are her daughters. Based on intercepted
communications, the DEA suspected that proceeds from drug
sales were being stored in Alonzo's apartment.
court issued a warrant on August 21, 2014, to conduct a
search of Alonzo's home, and two other locations, to look
for money from Garcia's drug operations. DEA special
agents, including Connolly, and Manchester police SWAT team
members met at 6:00 a.m. on August 27, 2014, to make a plan
for the search. The team knew that on that day Alonzo had at
least two grandchildren in the apartment with her. Alonzo had
no criminal record and was not charged with a crime.
agents, other than Connolly, were to remain on the perimeter
of the building while six team members went to Alonzo's
apartment on the third floor. Connolly was assigned the job
of “breacher” for the group going into the
apartment, meaning that Connolly would use a battering ram to
get through the front door. When the group arrived, however,
Connolly heard children's voices in the apartment, so he
decided not to use the battering ram.
the officers announced their presence, and someone inside the
apartment opened the door. The team members went by Connolly
to “clear” the apartment before the search began.
When a team member was unable to kick in a locked door,
Connolly took over. Connolly held his gun in his left hand
while he kicked at the door. When his foot got stuck in the
door and then came loose, Connolly lost his balance and fell
backwards. As he fell, he accidentally shot his gun.
bullet struck Alonzo, who was standing in the hall with her
young grandchild. The bullet went through Alonzo's left
elbow and into her abdomen, which caused blood and tissue to
fall onto the child. Alonzo's injuries have required
multiple surgeries and rehabilitation.
court held a hearing on the motion on April 12, 2017. During
the hearing, the court heard argument from counsel who
reiterated the positions taken in their papers.
brings a claim of negligence against the government under the
FTCA, arising from the circumstances in which Connelly shot
her. The government moves to dismiss for lack of subject
matter jurisdiction, on the grounds that Alonzo has not