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Alonzo v. United States

United States District Court, D. New Hampshire

April 24, 2017

Lilian Alonzo
v.
United States of America Opinion No. 2017 DNH 081

          ORDER

          JOSEPH DICLERICO, JR UNITED STATES DISTRICT JUDGE.

         Lilian 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.[1]The government moves to dismiss the suit for lack of subject matter jurisdiction. Alonzo objects.

         Standard of Review

         In 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.[2]Johansen v. United States, 506 F.3d 65, 68 (1st Cir. 2007).

         Background

         Beginning 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.

         At that 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.

         The 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.

         DEA 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.

         Instead, 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.

         The 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.

         The 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.

         Discussion

         Alonzo 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 ...


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