Court to determine Dubrall’s scope of employment
- By Andrew O. De Guzman - Reporter
U.S. District Court for the NMI Chief Judge Ramona V. Manglona has issued an opinion and order regarding a lawsuit filed by a man who suffered severe head and ribcage injuries after being assaulted by a police officer in 2010.In Sept. 2011, Jin Dong Wang sued the CNMI government, the Department of Public Safety, the DPS commissioner in his personal capacity, former Officer Jesse Dubrall in his personal capacity, and 10 Does.
Wang is represented by attorney Robert J. O’Connor.
In his first amended complaint, Wang brought nine causes of action: 1) assault and battery against Dubrall, 2) false arrest against Dubrall, 3) emotional distress against Dubrall, 4) violation of federal civil rights by Dubrall in his individual capacity, 5) violation of federal civil rights by then-Commissioner Santiago Tudela, 6) negligence by DPS and Tudela, 7) violation of civil rights under the CNMI constitution against Dubrall, 8) violation of civil rights under the CNMI constitution against DPS, Tudela, and Doe defendants, and 9) negligence by DPS, Dubrall, Tudela, and Doe defendants.
Debrall, who resigned from DPS after the 2010 incident, has denied the allegations against him.
In her 26-page written opinion and order, Manglona granted the CNMI government’s motion to strike Jin Dong Wang’s demand for a jury trial. Wang’s claims against the commonwealth will proceed on a bench trial, the court said.
Manglona said the government’s motion to substitute the CNMI as to Wang’s first, third, and ninth causes of action against Dubrall was denied without prejudice.
“Wang may proceed with discovery on these claims and may petition for judicial review and an evidentiary hearing of the attorney general’s certification thereafter but prior to trial,” Manglona said.
After discovery closes, Manglona said the CNMI government may renew its motion to substitute “if it finds adequate cause in compliance with” Federal Rules on Civil Procedure.
“The government’s motion to substitute in for Dubrall as to Wang’s second cause of action is granted. Defendant Dubrall is hereby dismissed from this claim pursuant to [the Commonwealth Employee Liability Reform and Tort Compensation Act],” Manglona ordered.
She noted that the CNMI government has produced Attorney General Edward T. Buckingham’s “certification to make a prima showing that Dubrall was acting within the scope of his employment as an employee of DPS.”
She added, “There is no allegation that the action occurred outside of the spatial and temporal limits of Dubrall’s employment. However, Wang also alleges that…Dubrall used excessive force by hitting his head with a butt of Dubrall’s gun and kicking him multiple times.”
Manglona said “Wang’s allegations raise the issues of whether Dubrall’s conduct was in furtherance of CNMI’s business in view of his duties, whether the action was in furtherance of the CNMI’s business of law enforcement, and whether the conduct was similar to that which Dubrall was hired to perform. Without more facts, it is not possible to determine whether Dubrall’s conduct in fact occurred within the scope of his employment.”