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Portillo v. United States

United States District Court, D. Nevada

January 22, 2018

Romulo Antonio Portillo, Plaintiff
United States of America, Defendants


          Jennifer A. Dorsey, U.S. District Judge

         Plaintiff Romulo Portillo sues the United States of America under the Federal Tort Claims Act (FTCA) for the Federal Bureau of Prison's (BOP) alleged miscalculation of his time in incarceration. Portillo has already been given one opportunity to amend his complaint. Because I lack subject matter jurisdiction over his claim, I dismiss the amended complaint and close this case.


         Portillo alleges that he was prosecuted by federal authorities in the United States District Court for the District of Columbia.[1] He pled guilty to one of the five counts in the indictment, and he was sentenced by United States District Judge Royce C. Lamberth.[2] On September 9, 2013, Judge Lamberth imposed a 66-month sentence, with 18 months to be credited for time already served in El Salvador and 22 months to be credited for time served in the United States prior to pleading guilty.[3] After those time-served credits were applied, Portillo would be sentenced to an actual term of 26 months, minus any good-time credits applied later.[4]

         On May 7, 2015, Judge Lamberth issued an order finding that the BOP had “refused to give [Portillo] credit for the 18 months served in El Salvador, ” in violation of his sentencing order.[5] Judge Lamberth ordered Portillo's sentence reduced to time served, and the BOP released him the next day.[6]

         When Portillo was released on May 8, 2015, approximately 20 months had passed-six months short of the term imposed by Judge Lamberth. However, Portillo alleges that he was entitled to 9 months and 15 days of good-time credit, meaning that his actual sentence should have been 16 months and 14 days.[7] Based on his calculations, he argues that he was “incarcerated 3 months longer than necessary.”[8]

         Portillo alleges tort actions for negligence and intentional infliction of emotional distress under the FTCA, to redress the BOP's failure to “ensure that his incarceration would be no longer than necessary.”[9] The government moves to dismiss the complaint for lack of subject matter jurisdiction, or alternatively, for failure to state a claim.[10] I agree that I lack subject matter jurisdiction over this claim because it cannot be raised under the FTCA, and therefore sovereign immunity protects the United States from Portillo's suit.


         A. Legal standards

         “Sovereign immunity is an important limitation on the subject matter jurisdiction of federal courts. The United States, as sovereign, can only be sued to the extent it has waived sovereign immunity.”[11] The question of whether sovereign immunity has been waived must be strictly construed in favor of the United States.[12]

         “The FTCA acts as a waiver of the United States' traditional sovereign immunity for certain torts committed by its employees.”[13] It allows tort claims for actions that, under the state law of the place where the act or omission took place, a private individual could be found liable for under like circumstances.[14] When determining whether a private analogue to a public official's actions exists, a court must determine whether a private person could be liable under similar or corresponding circumstances.[15] “To recover under the FTCA, the [plaintiff] must show the government's actions, if committed by a private party, would constitute a tort [under state law].”[16] Also, “[t]he breach of duty created by federal law is not, by itself, actionable under the FTCA.”[17]

         B. Portillo's allegations do not amount to an FTCA claim.

         Portillo's square facts do not fit into the round hole of the FTCA. He maintains that the BOP's failure to follow Judge Lamberth's initial sentencing order and its negligence in properly calculating his sentence amount to breaches of a duty owed to prisoners. Portillo cites D.C. Code § 24-442 for the proposition that the District of Columbia imposes a duty to “exercise reasonable care in the safekeeping of prisoners.”[18]

         First, Portillo's basis for this “duty” stems from District of Columbia Code § 24-442, a law that no longer exists.[19] The only precedential support Portillo gives for this duty is a 1997 case involving alleged medical malpractice on an incarcerated plaintiff.[20] And Portillo fails to make the connection between the questionably existent duty for DOC officials to provide reasonable care in the safekeeping of prisoners, like by providing medical care, and his allegations that BOP officials improperly calculated the length of his sentence.

         Even if Portillo's alleged state-created duty existed and applied in these circumstances, the FTCA is not a vehicle for claims based on state laws that impose liability on municipalities, states, or public employees.[21] It waives immunity for torts that private individuals in like circumstances can be held liable for. And Portillo provides no authority to suggest that there is a private analogue to ...

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