Anthony J. Romero v. United States of America

Summary

The United States District Court for the Western District of Oklahoma partially adopts a magistrate judge’s Report and Recommendation in an action under the Federal Tort Claims Act. The court dismisses the negligence claims without prejudice because the plaintiff failed to identify a sufficient private-party analogue under Oklahoma law to establish jurisdiction. The court grants the pro se plaintiff thirty days to file an amended complaint.

Holdings

1. The intentional-tort exception did not bar Romero's claim because he alleged that the United States was negligent in failing to prevent an assault, rather than seeking liability solely for the assault itself.
2. Romero failed to establish subject matter jurisdiction because he did not plausibly allege or identify conduct by a private person that would constitute a violation of a duty of care under Oklahoma law in like circumstances.
3. Dismissal was without prejudice, and Romero was granted thirty days to file an amended complaint because the court could not conclude that amendment would necessarily be futile.

Questions Presented

1. Whether the magistrate judge improperly treated Romero's FTCA claim as barred by the intentional-tort exception.
2. Whether Romero plausibly alleged all jurisdictional elements of an FTCA claim, including a private-party analogue under Oklahoma law.
3. Whether dismissal should be without prejudice and accompanied by leave to amend.

Disposition

dismissed