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GARCIA v. UNITED STATES

August 18, 1995

JAMES GARCIA and EVARISTO VASQUEZ, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: FRANKLIN S. VAN ANTWERPEN

 Van Antwerpen, J.

 August 18, 1995

 Plaintiffs James Garcia and Evaristo Vasquez instituted this action against the United States under the Federal Tort Claims Act, ("FTCA") 28 U.S.C. §§ 1346(b), 2671-2680, seeking money damages for their alleged wrongful detention and search by United States Customs Service inspectors. The United States has moved for judgment *fn1" on the ground that plaintiffs' claims are barred by the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a). This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1346(b).

 I. FACTS

 At the Customs inspectors' request, plaintiffs produced appropriate papers documenting their trip and their identities. Plaintiffs also responded to various questions put to them by the inspectors. Inspector Faraone questioned Mr. Vasquez, and Inspector Calise questioned Mr. Garcia. During this initial questioning, plaintiffs' luggage was searched. Plaintiffs were then taken from the public area of the airport to separate rooms in a nearby private area, where Inspectors Faraone and Calise performed a pat-down search of each of them. Neither the luggage searches nor the pat-downs revealed any drugs or contraband.

 Inspectors Faraone and Calise then sought authorization from Supervisory Customs Inspector Herbert Herter to elevate the examinations of plaintiffs to include strip searches and x-rays for the purpose of determining whether they were smuggling drugs internally. After Supervisor Herter gave the required approval, Inspectors Faraone and Calise explained to plaintiffs individually that they had the choice of being x-rayed or taken to the hospital to be detained for monitored bowel movements. Both plaintiffs executed consent forms authorizing x-rays. Before being transported to the hospital, plaintiffs were each subjected to a strip search, which included being required to spread their buttocks for a visual examination. These searches also did not reveal any drugs or contraband.

 Mr. Garcia was handcuffed and taken to a local hospital for an x-ray. Approximately two hours later, the x-ray was determined to be negative, and Mr. Garcia was immediately released from detention and returned to the airport.

 Mr. Vasquez was also handcuffed and taken to St. Francis Hospital for an x-ray. The doctor who read his x-ray noted ". . . possible foreign body ingestion." Accordingly, Mr. Vasquez was detained for monitored bowel movements.

 Mr. Vasquez was admitted to the hospital, given a hospital gown and administered mineral oil. The hospital log shows that Mr. Vasquez had monitored bowel movements at 1:05 a.m., 1:35 a.m., 1:55 a.m., and 2:35 a.m. Mr. Vasquez was handcuffed to a hospital bed throughout this period, and after each bowel movement was provided with gloves and required to probe through his stool with his fingers to check for foreign bodies. No drugs or contraband were found.

 Between his second and third bowel movements, a second x-ray was taken of Mr. Vasquez. This x-ray was determined to be "inconclusive." Finally, after a third x-ray was determined to show no sign of any foreign bodies, Mr. Vasquez was released. He was returned to the airport at approximately 3:30 a.m.

 On November 1, 1994, plaintiffs filed this action against the United States under the Federal Tort Claims Act, claiming that the actions of the Customs inspectors were taken without reasonable suspicion or probable cause and were based on plaintiffs' race and ethnicity. Plaintiffs contend that their Fourth and Fifth Amendment rights have been violated and that the inspectors' actions constitute false arrest, assault, battery, false imprisonment, unlawful search, and invasion of privacy under the laws of New Jersey. Plaintiffs have since clarified that they do not challenge the initial decision of the Customs inspectors to stop and question them, but instead base their claims upon the subsequent detention and searches described above. See Plaintiff's Brief of July 10, 1995 at p. 14 n.3.

 II. STANDARD OF REVIEW

 A federal court has the power and the duty to examine its own subject matter jurisdiction at any stage of the proceedings. Mansfield, Coldwater & Lake Michigan Railway v. Swan, 111 U.S. 379, 4 S. Ct. 510, 28 L. Ed. 462 (1884); Liberty Mutual Ins. Co. v. Ward Trucking Corp., 48 F.3d 742, 751 (3d Cir. 1995); see also Fed. R. Civ. Proc. 12(h)(3).

 Where a 12(b)(1) motion attacks the complaint on its face, the court must consider the allegations of the complaint as true in making its determination as to whether subject matter jurisdiction exists. See Mortensen v. First Federal Savings & Loan Ass'n, 549 F.2d at 891. The standard of review is the same as that of a 12(b)(6) motion. Id.

 Where a 12(b)(1) motion attacks the existence of subject matter jurisdiction on a factual basis, however, "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id. The court may engage in such a factual evaluation at any stage in the proceedings. Id. The plaintiff bears the burden of proof that jurisdiction does in fact exist. Id.

 III. DISCUSSION

 The Federal Tort Claims Act gives district courts ...


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