Full opinion text
ORDER KATHLEEN CARDONE, District' Judge. On this day, the Court considered Defendant Ricardo R. Montalvo’s (“Montalvo”) Motion for Summary Judgment (“Montalvo’s Motion”), ECF No. 65, and the Government’s Motion to Dismiss or, in the alternative, Motion for Summary Judgment (“Government’s Motion”), ECF No. 66. For the reasons set forth below, Montalvo’s Motion is GRANTED and the Government’s Motion is GRANTED in part and DENIED in part. I. BACKGROUND The following facts are undisputed, except where otherwise noted. On the night of February 2, 2008, Plaintiff was attempting to illegally cross the Rio Grande, which forms the international border between Ciudad Juarez, Mexico and El Paso, Texas. Def. Ricardo Montalvo’s Proposed Undisputed Facts (“Montalvo’s Facts”) ¶ 32, ECF No. 62. She was wearing a dark blue sweater and jeans, id. ¶ 30, and had agreed to attempt the crossing with two men who were also attempting to enter the United States illegally. PL’s Disputed Issues of Material Fact (“Plaintiffs Facts”) ¶ 1, ECF No. 73. At that time of year, the riverbed of the Rio Grande is virtually dry. Montalvo’s Facts ¶ 3. Running alongside the river is a floodplain area known as the “vega.” Id. The vega has. varying sizes of weeds and is scattered with small scrub trees. Id. Plaintiff and her companions were attempting to cross the border at a point to the east of one of the bridges that leads to the international ports of entry on either side of the border. Id. Plaintiff contends they were attempting to cross twenty to twenty-five yards east of the bridge, so that lamps on the bridge illuminated the area. PL’s Resp. to Def. Montalvo’s Proposed Undisputed Facts (“Plaintiffs Response to Montalvo’s Facts”) ¶¶ 3-4, ECF No. 73. Defendants contend the crossing point was fifty-five yards east of the bridge, and the ambient lighting did not fully reach the vega, lighting some portions but casting shadows on others. Montalvo’s Facts ¶ 4; Ricardo Montalvo Deposition (“Montalvo Deposition”) 65:9-14, ECF No. 65-3. Plaintiff and her two companions had walked across the riverbed and were hidden in the brush on the edge of the riverbed, about to cross the vega. PL’s Facts ¶¶ 1-2. They were waiting for a Border Patrol vehicle, a Chevrolet Tahoe, to move from where it was stopped on a dirt road on the far side of the vega from them. Id. ¶ 1. Montalvo was driving the Border Patrol vehicle. Montalvo’s Facts ¶ 5. Montalvo began driving east, away from Plaintiff and her companions, at which point they left their hiding place in the brush on the riverbank and began crossing the vega. PL’s Facts ¶ 2; Montalvo’s Facts ¶ 27. While they were crossing the vega, Montalvo turned again and began driving west back towards his earlier position. PL’s Facts ¶ 5; Montalvo’s Facts ¶ 6. Believing he had detected movement on the vega to his south, Montalvo stopped his vehicle and shined a spotlight in that direction. Montalvo’s Facts ¶ 7. While he was stopped, Plaintiff was positioned facing Montalvo in his vehicle, twenty meters away, with the vehicle’s headlights shining in her direction. PL’s Facts ¶ 5. Plaintiff contends she was in a sandy, bare area of the vega, while Defendants allege the area was uneven and had significant brush. Id. ¶ 6; Montalvo’s Objections to PL’s Resp. to Montalvo’s Facts ¶ 6, ECF No. 89. Believing Montalvo had seen her, Plaintiff crouched on her knees and awaited Montalvo’s instructions. PL’s Facts ¶¶ 6, 8. Plaintiff alleges Montalvo was stopped with his lights on her for seven to ten minutes. Id. ¶ 9; Miriam Aide Carcamo-Lopez Deposition (“Carcamo Deposition”) 188:24-25, ECF No. 65-2. Defendants contend he was only stopped for less than a minute. Montalvo Dep. 68:18-25. However long the time, after Montalvo had been stopped but had not given her any instructions or exited his vehicle to detain her, Plaintiff began to get scared and began to rise to her feet. PL’s Facts ¶ 9. At the same time, Montalvo began driving west towards her and, despite Plaintiffs attempts to avoid the vehicle, Montalvo drove over her with his back tires as he turned towards the south, beginning to turn his vehicle to the east once more. Id. ¶ 10; Montalvo’s Facts ¶ 7; Montalvo Dep. 69:21-70:24. As Montalvo turned south, he realized based on the illumination of the southern area of the vega with his headlights that the shadows he had seen with his spotlight were in fact Plaintiffs two companions, hiding in the brush and shadows. Montalvo’s Facts ¶ 7. He stopped his vehicle and got out to pursue the two men, who were fleeing south towards the river and Mexico. Id. ¶ 9. At that point, he heard Plaintiff screaming from behind his truck, and walked back to investigate. Id. ¶ 10. He discovered Plaintiff lying on the ground. Id. Defendants contend Plaintiff was partially covered by brush and tumbleweeds, while Plaintiff denies this. Id.; PL’s Resp. to Montalvo’s Facts ¶ 10. Montalvo asked Plaintiff what she was doing there, to which Plaintiff responded that Montalvo had just run her over. Montalvo’s Facts ¶ 12. Montalvo then reported the incident to his supervisor, who told Montalvo to contact El Paso’s Emergency Medical Services. Id. ¶ 13. Because of the rough terrain and the difficulty of getting an ambulance to the scene of the accident without landmarks or a street address, Montalvo determined that it would be easier and faster to get Plaintiff medical care if he placed her in his vehicle and took her to meet the ambulance. Id. ¶¶ 13-14; Montalvo Dep. 108:14-109:5: So, he first backed his vehicle closer to where Plaintiff was lying on the ground. Montalvo’s Facts ¶ 13. The parties dispute, however, exactly what Montalvo did to get Plaintiff into his vehicle. Plaintiff contends that Montalvo kicked her “with his feet, trying to get [her] to get up.” Cárcamo Dep. 95:9-10. Defendants allege that Montalvo told Plaintiff-that he needed to move her, she consented, and she cooperated in the endeavor by holding onto him and pulling herself into the vehicle. Montalvo’s Facts ¶ 14; Montalvo Dep. 112:7-16. But all the parties agree that when he saw that she was unable to stand, Montalvo picked Plaintiff up by the torso and placed her upper body through one rear passenger door onto the backseat of his vehicle, with her -legs still resting on the ground, then walked to the other rear passenger door and pulled Plaintiff the rest of the way into the vehicle. PL’s Facts ¶ 19. Montalvo then drove Plaintiff across the vega and along a dirt road to meet the Emergency Medical Technicians (“EMTs”) on a paved road at a more accessible location. Id.; Montalvo’s Objections to PL’s Resp. to Montalvo’s Facts ¶ 18. From there the EMTs took Plaintiff to the hospital. Id.; PL’s Facts ¶ 19. Plaintiff was hospitalized from February 2, 2008, until February 27, 2008, for her injuries. Id. ¶22. She has undergone three surgeries and has ongoing medical problems, including an inability to have sex, an inability to stand for long periods of time, and little bladder control. Id. ¶ 23. Border Patrol Agents drive on the vega in order to pursue suspected aliens, or deter aliens from seeking to enter because of the Border Patrol Agents’ mere presence. Kevin McCrary Deposition (“McCrary Deposition”) 40:18^11:1, ECF No. 65-5. Driving on the vega does present some risks, and Border Patrol Agents are given instruction on some of the risks, but are not told not to drive there. See id. 30:20-31:2; Montalvo Dep. 30:16-24, 38:21-24. The concerns include dangers to possible immigrants, in the area, Montalvo Dep. 79:6-12, dangers to the agents from gunfire coming, from across the border, id. 38:21-24, and potential damage to the agents’ vehicles from the rough terrain. McCrary Dep. 31:3-9. However, despite the dangers, Border Patrol Agents commonly drive on the vega as part of their regular duties. Id. 31:12-24. Plaintiff filed this action on October 9, 2009, asserting four causes of action against twenty unknown Border Patrol Agents and against the government directly. Compl., ECF No. 1. She subsequently amended her Complaint on July 30, 2010, substituting Montalvo for one of the unknown agents. First Am. Compl., ECF No. 18. At present, Plaintiff asserts a cause of action against Montalvo and nineteen other unknown Border Patrol Agents under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for violations of her Fourth and Fifth Amendment rights. Id. ¶¶ 19-24. She asserts one cause of action against the government under the Federal Tort Claims Act (“FTCA”) for assault and one for battery. Id. ¶¶ 25-34. Finally, she appears to assert a cause of negligence against Montalvo under state law and against the government under the FTCA. Id. ¶¶ 35-38. II. DISCUSSION A. Standard Summary judgment is required “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir.2008). “A fact is ‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.” Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir.2009) (quoting Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir.2000) (per curiam)). A dispute about a material fact is genuine only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ellison v. Software Spectrum, Inc., 85 F.3d 187, 189 (5th Cir.1996). “[The] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Wallace v. Tex. Tech. Univ., 80 F.3d 1042, 1046-47 (5th Cir.1996). To show the existence of a genuine dispute, the nonmoving party must support its position with citations to “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials[,]” or show “that the materials cited by the movant do not establish the absence ... of a genuine dispute, or that [the moving party] cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c). The court resolves factual controversies in favor of the nonmoving party; however, factual controversies require more than “conclusory allegations,” “unsubstantiated assertions,” or “a ‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc). Further, when reviewing the evidence, the court must draw all reasonable inferences in favor of the nonmoving party, and may not make credibility determinations or weigh evidence. Man Roland, Inc. v. Kreitz Motor Express, Inc., 438 F.3d 476, 478-79 (5th Cir.2006) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). Thus, the ultimate inquiry in a summary judgment motion is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505. B. Analysis 1. Montalvo’s Motion Montalvo has moved for summary judgment on Plaintiffs claims against him on four grounds. First, he argues he is qualifiedly immune to the Bivens claim that he violated Plaintiffs rights under the Fourth and Fifth Amendments. Montalvo’s Mot. 2-8. Second, he contends that the Fifth Amendment claim should be analyzed under the same framework as the Fourth Amendment claim, and should be dismissed for the same reasons he is qualifiedly immune to the Fourth Amendment claim. Id. at 9. Third, he argues that any claims Plaintiff might have against him are barred by Texas’s unlawful acts rule. Id. Finally, he argues that the FTCA shields him from any state law tort claims, such as Plaintiffs negligence claim, based on actions taken in the scope of his employment. Id. at 12-13. Because the resolution of Montalvo’s second argument affects the analysis of his qualified immunity defense, the Court proceeds by first addressing Montalvo’s second argument, then by addressing his remaining arguments in turn. a. Plaintiffs Fifth Amendment claim should receive a Fourth Amendment analysis Montalvo argues that Plaintiffs Bivens claim for violations of the Due Process Clause of the Fifth Amendment are based on the same allegations as her claim for violations of the Fourth Amendment, and thus the Fifth Amendment claim should be reviewed using the same framework as her Fourth Amendment claim. Id. at 9. Plaintiff did not respond to this argument. Out of a reluctance to expand the scope of substantive due process, the Supreme Court has instructed that “ ‘where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.’ ” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 842, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (quoting Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994)). With specific regard for the Fourth Amendment, “all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.” Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (emphasis in original). However, this rule only concerns. how a claim is analyzed, and does not indicate that a claim for excessive force cannot arise under the Fifth Amendment. United States v. Lanier, 520 U.S. 259, 272 n. 7, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). Moreover, “[substantive due process analysis is ... inappropriate ... only if [the] claim is ‘covered by’ the Fourth Amendment.” Lewis, 523 U.S. at 843, 118 S.Ct. 1708. Thus, if a Fifth Amendment claim is not covered by the Fourth Amendment, it should receive an independent substantive due process analysis. Petta v. Rivera, 143 F.3d 895, 901 (5th Cir.1998) (“a plaintiff whose claim is not susceptible to proper analysis with reference to a specific constitutional right may still state a claim under § 1983 for a violation of his or her Fourteenth Amendment substantive due process right, and have thé claim judged by the constitutional standard which governs that right”); Carhart v. Gonzales, 413 F.3d 791, 795 n. 2 (8th Cir.2005) (noting that the Due Process Clauses of the Fifth and Fourteenth Amendments “proscribe virtually identical governmental conduct”), rev’d on other grounds, 550 U.S. 124, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007). A claim is only covered ‘ under the Fourth Amendment if it is based on a seizure, which only occurs “when there is a governmental termination of freedom of movement through means intentionally applied.” Scott v. Harris, 550 U.S. 372, 381, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quotation, alterations, and ellipsis omitted). Montalvo is correct that to the extent that Plaintiff alleges a violation of the Fifth Amendment’s substantive due process protections based on Montalvo’s intentional use of his vehicle to run over Plaintiff and his intentional desire to harm her by throwing her in his vehicle and driving her to a distant location before calling an ambulance, the analysis of that claim is identical to the analysis of her Fourth Amendment claim based on the same conduct. See Graham, 490 U.S. at 395, 109 S.Ct. 1865. So, Montalvo’s argument for summary judgment on this aspect of Plaintiffs Fifth Amendment claim succeeds or fails together with his argument with regard to Plaintiffs Fourth Amendment claim. However, Plaintiffs Complaint is not limited to allegations of intentional and malicious conduct, so Montalvo is not correct that, Plaintiffs entire Fifth Amendment claim rises or falls with her Fourth Amendment claim. Plaintiff alleges that Defendants “intentionally, maliciously, and recklessly violated Plaintiff Carcamo-Lopez’s rights under due process guaranteed by the Fifth Amendment of the U.S. Constitution and her Fourth Amendment right to be free from unreasonable search & seizure.” First Am. Compl. ¶ 21 (emphasis added). This aspect of Plaintiffs Fifth Amendment claim is not covered by the Fourth Amendment because, as set forth above, the Fourth Amendment requires “means intentionally applied.” See Scott, 550 U.S. at 381, 127 S.Ct. 1769. Thus, Plaintiffs Fifth Amendment claim based on a recklessness theory must be analyzed independently, using substantive due process principles. See Lewis, 523 U.S. at 849, 118 S.Ct. 1708 (citing Daniels v. Williams, 474 U.S. 327, 334 n. 3, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)) (noting that some reckless or grossly negligent conduct could be “egregious enough to state , a claim under substantive due process”). Accordingly, the Court holds that Plaintiffs Fifth Amendment claim based on allegations of intentional conduct should be analyzed using a Fourth Amendment framework, but her Fifth Amendment claim based on allegations of recklessness should be analyzed using traditional substantive due process principles. b. Qualified immunity Montalvo contends he is qualifiedly immune to Plaintiffs Fourth and Fifth Amendment claims because there is no evidence that he acted intentionally when he ran Plaintiff over in his vehicle, Montalvo’s Mot. 4-6, and because driving her to a different location to receive medical treatment did not violate a clearly established right. Id. at 6-8. Plaintiff responds that circumstantial evidence is sufficient to create a reasonable inference that Montalvo acted intentionally in running her over. PL’s Opp’n .to Montalvo’s Mot. for Summary J. (“Pl.’s Resp. to Montalvo’s Mot.”) 9-10, ECF No. 83. Plaintiff also argues that it was objectively unreasonable for Montalvo to drive Plaintiff to a different location, thereby delaying her medical attention. Id. at 9. Qualified immunity protects officials from suits “for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). This defense is available to federal officials in Bivens actions, and is identical to the defense available to defendants in § 1983 actions. Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). The precise procedure for evaluating qualified immunity is unclear, with some cases requiring the government official seeking qualified immunity to first show an entitlement to the defense by showing that the alleged violation occurred in his official capacity and was within the scope of his discretionary authority, while other eases do not impose such a requirement. Compare Cronen v.Tex. Dep’t of Human Servs., 977 F.2d 934, 939 (5th Cir.1992), with Michalik v. Hermann, 422 F.3d 252, 257 (5th Cir.2005). Whatever the requirement on the defendant for a valid invocation, once invoked the plaintiff has the burden of showing the defense does not apply, and must prove two elements to discharge that burden: “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, — U.S. —, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (quoting Harlow, 457 U.S. at 818, 102 S.Ct. 2727). “[Conduct violates clearly established law when, at the time of the challenged conduct, ‘the contours of a right are sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’ ” Id. at 2084 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)) (alterations omitted). In other words, “the qualified immunity standard ‘gives ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Mangieri v. Clifton, 29 F.3d 1012, 1017 (5th Cir.1994) (quoting Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)). Courts “have discretion to decide which of the two prongs of qualified-immunity analysis to tackle first.” al-Kidd, 131 S.Ct. at 2080 (citing Pearson, 555 U.S. at 236, 129 S.Ct. 808). Here, Montalvo raised the defense of qualified immunity in his motion, but did not prove his entitlement to the defense by showing the alleged violations occurred in his official capacity and were within the scope of his discretionary authority. See Montalvo’s Mot. 3. However, because it appears likely that Montalvo could make the required showing, and because Plaintiff has not contested the issue, the Court proceeds directly to determine whether Plaintiff has discharged her burden of showing the defense does not apply. The Court begins with the first prong, whether Plaintiff has at least created a disputed issue of material fact about whether Montalvo violated her constitutional rights. See Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 490 (5th Cir.2001). Plaintiff has alleged Montalvo used excessive force when he ran her over and then “picked her up, threw her into his vehicle, and drove her to another location before calling an ambulance, despite knowing she was seriously injured.” First Am. Compl. ¶¶ 15-16. “ ‘A Fourth Amendment seizure occurs when there is a governmental termination of freedom of movement through means intentionally applied.’ ” Scott, 550 U.S. at 381, 127 S.Ct. 1769 (quoting Brower v. Cnty. of Inyo, 489 U.S. 593, 596-597, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989)) (alterations and ellipsis omitted). Intentional conduct is an essential requirement for a seizure, as “ ‘the word ‘seizure’ ... can hardly be applied to an, unknowing act.’ ” Laughlin v. Olszewski, 102 F.3d 190, 193 (5th Cir.1996) (quoting Brower, 489 U.S. at 596, 109 S.Ct. 1378). “[T]he Fourth Amendment addresses ‘misuse of power,’ not the accidental effects of otherwise lawful government conduct.” Brower, 489 U.S. at 596, 109 S.Ct. 1378 (quoting Byars v. United States, 273 U.S. 28, 33, 47 S.Ct. 248, 71 L.Ed. 520 (1927)). Montalvo first argues that there was no seizure here, so that the Fourth Amendment is not applicable. The Court agrees. Plaintiff has failed to rebut the assertion of qualified immunity by showing a constitutional violation occurred, because she has not submitted sufficient evidence that a seizure took place. Plaintiff does not point to any direct evidence that Montalvo’s running over Plaintiff was intentional, but. instead argues that circumstantial evidence gives rise to a reasonable inference that Montalvo saw her and intentionally ran her over. Plaintiff is correct that all reasonable inferences should be drawn in her favor, see Man Roland, 438 F.3d at 478-79 (citation omitted), but in this case the Court does not believe that an inference of intentionality is reasonable. According to Plaintiffs version of the facts, she was attempting to cross the border at night, wearing dark clothes, but in an area well illuminated by lights from a nearby bridge, when Montalvo turned his truck and pointed his headlights in her direction. At that point she crouched down to the ground in a bare area free of brush, where she waited for seven to ten minutes, when Montalvo suddenly charged his vehicle toward her. She was able to avoid the front tires of the vehicle, but was run over by the back tires. After running her over, Montalvo parked, got out and walked back to where she was lying, and asked her, “What are you doing there, ma’am?” Then he kicked her to try to get her to stand up, dragged her into his vehicle, and drove her to get medical attention. Plaintiff has not submitted any direct evidence of intentionality and the circumstantial evidence she has submitted does not support a reasonable inference that Montalvo intended to run her over. If Montalvo wished to harm Plaintiff, he would likely have done so immediately upon seeing her, not after a seven minute standoff. Indeed, the notion of a “standoff’ strikes the Court as all the more unlikely given the relative positioning of the two parties involved, with Montalvo driving a vehicle and Plaintiff crouching on the ground.- This unequal positioning counsels against a seven minute stalemate. Additionally, the fact that Plaintiff was only run over by the vehicle’s back tires, and not the front, indicates an accidental or inadvertent encounter; if Montalvo had sped up in order to run Plaintiff over, the Court cannot see how he could have done so only with his back tires. Furthermore, Montalvo’s words upon finding Plaintiff behind his vehicle do not sound like the statement of a person who has just intentionally run someone over. Even crediting Plaintiffs allegation that Montalvo kicked her to get her into his vehicle to drive her to get medical treatment, one would imagine someone so cruel as to intentionally run over another human being with his vehicle to provide the victim no help at all, or at the very least subject her to harsher language and much rougher handling. Finally, Plaintiff has not presented any argument, much less evidence, that would indicate to the Court what might have motivated Montalvo to commit an assault of this type. Proof or at least a speculation as to possible explanations for such behavior would have helped persuade the Court that an inference of intentionality was reasonable, and its absence helps persuade it that the inference is not reasonable. In short, logic and common sense dictate against finding the presence of malevolent behavior necessary for intentionality. The Court cannot say it would be reasonable to infer from the evidence at this stage, disputed or undisputed, that Montalvo intentionally ran over Plaintiff with his vehicle. Without evidence of an intentional termination of Plaintiffs freedom of movement, Plaintiff cannot show a seizure occurred, see Scott, 550 U.S. at 381, 127 S.Ct. 1769 (citation omitted), and without a seizure, Plaintiffs cannot make out a claim of excessive force under the Fourth Amendment. Therefore, the Court grants Montalvo summary judgment on that aspect of Plaintiffs Bivens claim. See id. And because Plaintiffs Fifth Amendment claim based on an intentional theory is reviewed using the same analysis, see Graham, 490 U.S. at 395, 109 S.Ct. 1865, the Court also grants Montalvo summary judgment on that aspect of Plaintiffs Fifth Amendment claim. The Court turns next to Montalvo’s second argument, which is based on the second prong of qualified immunity. Montalvo contends that his actions in driving Plaintiff to another location to receive medical care instead of leaving her at the site of the accident were objectively reasonable, and so cannot constitute a violation of a clearly established right. Montalvo’s Mot. 6-8. Plaintiff responds that it was objectively unreasonable for Montalvo to run over Plaintiff, then kick her, throw her into his truck, and drive her to get medical treatment. Because the Court has already found the Fourth Amendment does not apply because there was no seizure, it examines these arguments only as they apply to Plaintiffs Fifth Amendment claim based on a theory of recklessness. To constitute a violation of a person’s substantive due process rights, physically injurious governmental actions must “ ‘shock[ ] the conscience’ ” or “ ‘violate[ ] the decencies of civilized conduct.’ ” See Lewis, 523 U.S. at 846, 118 S.Ct. 1708 (quoting Rochin v. California, 342 U.S. 165, 172-73, 72 S.Ct. 205, 96 L.Ed. 183 (1952)). “[0]nly the most egregious official conduct” rises to the level of being actionable under substantive due process. Id. Due process is not meant to mirror traditional tort law, so negligently inflicted harm is “categorically beneath the threshold of constitutional due process.” Id. at 849, 118 S.Ct. 1708; McClendon v. City of Columbia, 305 F.3d 314, 325 (5th Cir.2002) (en banc) (“in order to state a viable substantive due process claim the plaintiff must demonstrate that the state official acted with culpability beyond mere negligence”). Instead, intentional actions are the type of conduct most likely to violate substantive due process principles. Lewis, 523 U.S. at 849, 118 S.Ct. 1708. Whether grossly negligent or reckless conduct can rise to the requisite conscience-shocking level “is a matter for closer calls.” Id. at 849, 118 S.Ct. 1708. In making such calls, prior cases are of only limited utility, because conduct “that shocks in one environment may not be so patently egregious in another, and [the Supreme Court’s] concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking.” See id. at 850, 118 S.Ct. 1708. Here, the Court has no difficulty concluding that Montalvo’s actions do not show a violation of clearly established Fifth Amendment law. Even assuming Montalvo was reckless in driving on the vega, or that he was reckless in deciding to drive Plaintiff to another location for medical attention and in trying to get her into his vehicle, the Supreme Court’s decision in Lewis indicates that finding a violation based on such a level of culpability would at the very least be a “close[ ] call.” Id. at 849, 118 S.Ct. 1708. The lack of clarity, especially in light of Plaintiffs failure to point to any case with analogous facts that would have made the issue any more clear, makes Montalvo’s alleged recklessness incompatible with a finding that he violated a right whose contours were clear. This is sufficient to resolve the issue of qualified immunity in Montalvo’s favor. See alKidd, 131 S.Ct. at 2084. But in addition, the Supreme Court has explicitly foreclosed a finding of substantive due process violations based on reckless conduct of this type. “[W]hen unforeseen circumstances demand an officer’s instant judgment, even precipitate recklessness fails to inch close enough to harmful purpose to spark the shock that implicates ‘the large concerns of the governors and the governed.’ ” Lewis, 523 U.S. at 853, 118 S.Ct. 1708 (quoting Daniels, 474 U.S. at 332, 106 S.Ct. 662). Because reckless conduct in unforeseen circumstances such as those Montalvo faced cannot qualify as a violation of an individual’s Fifth Amendment substantive due process rights, much less a violation of clearly established rights, Montalvo is entitled to qualified immunity on Plaintiffs Fifth Amendment claim based on a recklessness theory as well. Accordingly, because Plaintiff has not shown that Montalvo’s actions violated her Fourth Amendment rights, or that they violated her clearly established Fifth Amendment rights, the Court grants Montalvo summary judgment on Plaintiffs Bivens claim. c. Unlawful acts rule Because the Court grants Montalvo summary judgment on all of Plaintiffs claims on other grounds, it does not reach Montalvo’s argument under the unlawful acts rule. d. Immunity to negligence claim Montalvo argues that suit against the United States under the FTCA is the exclusive remedy for torts committed by federal employees within the course and scope of their employment, so that Plaintiffs tort claims against him should be dismissed. Montalvo’s Mot. 12-13. Though Plaintiffs argument in response is unclear, she appears to argue that there are fact questions regarding whether Montalvo was acting in the course and scope of his employment because the facts could indicate that Montalvo’s actions that injured Plaintiff were reckless. PL’s Resp. to Montalvo’s Mot. 14-15. The FTCA is a limited waiver of sovereign immunity by the federal government that allows it to be sued “for the negligent or wrongful acts of its employees ‘where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.’ ” Spotts v. United States, 613 F.3d 559, 566 (5th Cir.2010) (quoting 28 U.S.C. § 1346(b)(1)). The remedy against the government under the FTCA for personal injuries “arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee.” 28 U.S.C. § 2679(b). Suits based on the same subject matter against the employee whose tort created the liability for the government are “precluded,” except those alleging violations of the United State Constitution or of a federal statute that otherwise authorizes such suits. Id. Once the government certifies that the employee’s actions allegedly creating the liability were within the scope of his employment, the tort claim “shall be deemed an action against the United States under the [FTCA] and the United States shall be substituted as the party defendant.” Id. § 2679(d)(1). The end result is that federal employees enjoy immunity from state tort suits for conduct in the scope of their official duties. See Houston Cmty. Hosp. v. Blue Cross & Blue Shield of Tex., Inc., 481 F.3d 265, 269 (5th Cir.2007). The applicable law for determining whether a federal employee was acting in the scope of his employment for FTCA pin-poses is the law of the state where the wrongful action occurred, in this case, Texas. See Bodin v. Vagshenian, 462 F.3d 481, 484 (5th Cir.2006) (citing Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955); Rodriguez v. Sarabyn, 129 F.3d 760, 766 (5th Cir.1997)). In Texas, “ ‘an employee’s conduct is considered to fall within the scope of his employment if his actions were (1) within the general authority given him; (2) in furtherance of the employer’s business; and (3) for the accomplishment of the object for which the employee was employed.’ ” Id. (citing Counts v. Guevara, 328 F.3d 212, 214 (5th Cir.2003)); see also Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex.2002) (setting out an identical standard). To be within the scope of employment, an action also must be “ ‘of the same general nature as that authorized or incidental to the conduct authorized.’” Minyard, 80 S.W.3d at 577 (quoting Smith v. M Sys. Food Stores, Inc., 156 Tex. 484, 297 S.W.2d 112, 114 (1957)). Even an intentional tort may still be within the scope of employment so long as “the act, although not specifically authorized by the employer, is closely connected with the servant’s authorized duties.” GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 618 (Tex.1999). The Texas Supreme Court has illustrated the concept of a close connection in its statement that “where a security guard uses more force than is necessary in protecting the employer’s property,” the tort is closely connected to the guard’s authorized duties. Medina v. Herrera, 927 S.W.2d 597, 601 (Tex.1996) (citing Tex. & Pac. Ry. Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236, 239 (1952)). Here, the negligence claim is based on actions that plainly fall within the scope of Montalvo’s employment. Regarding the first element, authority of the employee, Plaintiff does not dispute that the United States Border Patrol’s purpose is to prevent illegal immigration, and that to carry out that mission Montalvo had the authority as a Border Patrol Agent to pursue and detain illegal aliens. Montalvo’s Facts ¶¶ 1-2; Pl.’s Resp. to Montalvo’s Facts ¶¶ 1-2. Regarding the second element, furtherance of the employer’s business, Plaintiff does not dispute that Montalvo was driving on the vega on the night in question in order to detain illegal immigrants, in furtherance of his employer’s mission. Montalvo’s Facts ¶ 2; Pl.’s Resp. to Montalvo’s Facts ¶ 2. Regarding the third and final element, accomplishment of the employee’s employment function, the undisputed evidence leads the Court to conclude that Montalvo’s actions were taken for the accomplishment of his duties. For the reasons set forth above in the discussion of Plaintiffs Bivens claim, there is no evidence that Montalvo was acting intentionally, so at most he could have been acting recklessly. Even assuming he was reckless, though, that does not change the fact that his purpose in driving on the vega, and specifically his purpose in turning when he ran over Plaintiff, was to patrol for illegal aliens. Contrary to Plaintiffs apparent argument, which cites to no Texas authority for the proposition, the Court has discovered no Texas cases holding that reckless actions are per se beyond the scope of employment. Indeed, given that the Texas Supreme Court has held that intentional torts may be within the scope of employment, Plaintiff’s argument is difficult to credit. See Bruce, 998 S.W.2d at 618; Medina, 927 S.W.2d at 601 (citing Hagenloh, 247 S.W.2d at 239). Even if there were some doubt about this, Plaintiffs own allegations in the Complaint put the issue to rest. In paragraph eight of the Complaint, Plaintiff alleged, “In committing the acts alleged in this complaint, Defendants DOES 1 through 20, inclusive, and Montalvo were acting within the course and scope of their employment and were acting on behalf of Defendant United States of America in their capacity as Customs and Border Protection Agents. Additionally, they were acting as discussed in Bivens.” First Am. Compl. ¶ 8. This section was incorporated by reference within the negligence cause of action section. First Am. Compl. ¶ 35 (“Plaintiff repeats and realleges each allegation contained in paragraphs 1 through 34 of this complaint.”). Thus, for the purposes of the negligence cause of action, Plaintiff has alleged that Montalvo was acting in his official capacity. Such an allegation in the Complaint constitutes a judicial admission, and is binding upon Plaintiff for the rest of the case. See Martinez v. Bally’s La., Inc., 244 F.3d 474, 476 (5th Cir.2001); Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, 322 F.3d 147, 167 (2d Cir.2003) (“the allegations in the Second Amended Complaint are ‘judicial admissions’ by which [the plaintiff] was bound throughout the course of the proceeding.’ ”) (alteration, quotation, and citation omitted); Romine v. Acxiom Corp., 296 F.3d 701, 706 (8th Cir.2002) (“While notice pleading does not demand that a complaint expound the facts, a plaintiff who does so is bound by such exposition.”) (alteration, citation, and quotation omitted). This prevents Plaintiff from claiming that a factual dispute exists concerning whether Montalvo was acting in the scope of his em ployment. Because the undisputed evidence and Plaintiffs own allegations in the Complaint show that Montalvo’s actions were within the scope of his employment, and actions against individual employees are precluded by the FTCA, the Court finds Plaintiff’s negligence claim against Montalvo is precluded and grants summary judgment for Montalvo on that claim. 2. Government’s Motion The government has moved for dismissal or, in the alternative, for summary judgment, based on four grounds. First, the government contends this Court lacks jurisdiction over Plaintiff’s claims based on Montalvo’s decision to move Plaintiff from the place of the incident to an area more accessible to emergency medical personnel, because those actions fall within the discretionary function exception from the FTCA’s waiver of sovereign immunity. Gov’t’s Mot. 6-10. Second, the government argues Plaintiffs Complaint should be dismissed because an applicable Texas statute only subjects operators of emergency vehicles in emergencies to liability if the use was reckless, and that Plaintiff cannot show Montalvo was reckless in driving on the vega. Id. at 10-14. Third, it argues that Plaintiffs assault and battery claims should be dismissed because Plaintiff cannot show Montalvo’s actions were intentional. Id. at 15-16. Finally, it argues that all of Plaintiffs claims should be dismissed because they are barred by Texas’s unlawful acts rule. Id. at 16-19. Because the Court considers the government’s arguments in light of the summary judgment evidence the government submitted, and because Plaintiff had an opportunity to submit summary judgment evidence of its own, the Court treats the Government’s Motion as one for summary judgment. See Fed.R.Civ.P. 12(d). The Court proceeds by examining each of the government’s arguments in turn. a. Discretionary function exception The government argues that Montalvo’s decision to move Plaintiff to a more accessible location despite her injuries, instead of waiting for medical personnel to arrive at the site of the accident, was a decision protected by the FTCA’s discretionary function exception. Gov’t’s Mot. 6-10. Plaintiff responds that Montalvo’s actions were controlled by Border Patrol policy, and that regardless the discretionary function exception was not created to protect this type of action. Pl.’s Opp’n to Def. United States of America’s Mot. to Dismiss, or, in the Alternative, Mot. for Summ. J. (“Plaintiffs Response to Government’s Motion”) 7-11, ECF No. 84. The FTCA is a limited waiver of sovereign immunity by the federal government that allows it to be sued “for the negligent or wrongful acts of its employees ‘where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.’ ” Spotts, 613 F.3d at 566 (quoting 28 U.S.C. § 1346(b)(1)). However, through an exception from this waiver known as the discretionary function exception the government retains sovereign immunity to claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not-the discretion involved be abused.” 28 U.S.C. § 2680(a). To determine whether the discretionary function exception applies, courts apply a two-step inquiry. Spotts, 613 F.3d at 567 (citing United States v. Gaubert, 499 U.S. 315, 322-23, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)). The first step is to determine whether the claim is based on acts that “ ‘involve an element of judgment or choice.’ ” Id. (quoting Gaubert, 499 U.S. at 322, 111 S.Ct. 1267). In this inquiry, what matters is the nature of the acts performed, not the status of the employee performing them. Id. (citing Gaubert, 499 U.S. at 322, 111 S.Ct. 1267). So long as the statute, regulation, or policy at issue leaves the employee some freedom to choose when and how to take action, the employee “is not bound to act in a particular manner and the exercise of [his] authority is discretionary.” See id. (citing Gaubert, 499 U.S. at 329, 111 S.Ct. 1267). If a claim is based on actions involving judgment or choice, the next step is for the court to determine whether the “ ‘judgment is of the kind that the discretionary function exception was designed to shield.’ ” Id. at 568 (quoting Gaubert, 499 U.S. at 322-23, 111 S.Ct. 1267). This prong is designed to ensure that the protected actions are based on considerations of public policy, to effectuate the. exception’s purpose of preventing “ ‘judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.’ ” Id. (quoting Gaubert, 499 U.S. at 323, 111 S.Ct. 1267). “In this regard, ‘if a regulation allows the employee discretion, the very existence of the regulation creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations.’ ” Id. (quoting Gaubert, 499 U.S. at 324, 111 S.Ct. 1267). What matters is not whether some analysis of policy choices was made before taking the specific actions at issue, merely whether the actions are “susceptible to policy analysis.” Freeman v. United States, 556 F.3d 326, 337 (5th Cir.2009) (quoting Gaubert, 499 U.S. at 325, 111 S.Ct. 1267). However, not all discretionary acts by government employees are covered by the discretionary function exception; for example, while driving a government vehicle involves “the constant exercise of discretion, the official’s decisions in exercising that discretion can hardly be said to be grounded in regulatory policy,” and :so is not the kind of discretion the exception was designed to shield. Gaubert, 499 U.S. at 325 n. 7, 111 S.Ct. 1267. Beginning at the first step of the Gaur bert test, the Court finds that the decision over whether to move Plaintiff to another location, and what means to use, involved an element of judgment or choice. The only evidence that parties have submitted on the issue consists of a statement of Border Patrol policy and a declaration by Assistant Chief Patrol Agent Oscar Benavides (“Benavides”). The relevant policy states that “Border Patrol Agents who encounter individuals who are injured are required to take immediate action to obtain medical attention for the injured party.” Gov’t’s Mot. 8. Benavides stated that trainees are given instruction at the Border Patrol Training Academy on “basic First-Aid/CPR” and “the basics of checking the scene for safety and assessing the individual in an attempt to identify life-threatening and non life-threatening conditions.” Benavides Decl. ¶ 4, ECF No. 66-20. However, according to Benavides, “that training does not rise to a mandatory directive. Thus, the decisions on how to conduct a rescue are left to the discretion of the Border Patrol Agents.” Id. This record indicates that while Border Patrol Agents are instructed in the general manner and methods with which to provide immediate medical attention and arrange for professional medical care, they are not obligated to take any particular action in response to a given factual scenario. The training provided at the Border Patrol Training Academy does not “constrain[] the decision-making ability” of Border Patrol Agents, Ashford v. United States, 511 F.3d 501, 505 (5th Cir.2007), but merely gives them medical information why moving certain injured individuals is ill advised. Because the training and Border Patrol policy allowed Montalvo to use his judgment when deciding how to secure medical care for Plaintiff and no other authority constrained that judgment, Montalvo was exercising discretion, and the first part of the Gaubert test is satisfied. See Spotts, 613 F.3d at 567 (citing Gaubert, 499 U.S. at 329, 111 S.Ct. 1267). The Court turns now to the second aspect of the Gaubert test, whether the discretion Montalvo exercised was the kind the statute was designed to shield. The Court acknowledges at the outset that the discretionary function exception protects the exercise of discretion without regard to the status of the employee exercising it, see Spotts, 613 F.3d at 567, and that there is a presumption that an employee exercising discretion under a policy is doing so in consideration of the same concerns that underlie the policy. Id. at 568 (citing Gaubert, 499 U.S. at 324, 111 S.Ct. 1267). Yet, despite these and other principles provided by the Supreme Court in Gaubert, or perhaps because of them, the application of the discretionary function exception remains remarkably unclear. See 14 Charles A. Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3658.1, at 639 (3d ed. 1998) (“it is unclear exactly what falls within the scope of this provision, despite an immense amount of precedent that has developed on the subject”). In light of this lack of clarity, the Court is especially mindful of the Fifth Circuit’s instruction to act cautiously when making a determination that a decision is protected by the exception. As the Fifth Circuit put it, [A]s virtually every act of a government employee involves at least a modicum of choice, we must exercise restraint when applying the discretionary function exception. If courts were not to exercise restraint, the government would be insulated “from nearly all tort liability,” thereby frustrating the very purposes that motivated enactment of the FTCAa classic example of the exception swallowing the rule. Johnson v. Sawyer, 980 F.2d 1490, 1502 (5th Cir.1992), vacated on other grounds, 47 F.3d 716 (5th Cir.1995) (quoting Collins v. United States., 783 F.2d 1225, 1233 (5th Cir.1986)). Similarly, the Court notes that even though the Supreme Court has held that a formalistic distinction between planning activities and operations activities may not be used to establish a line between per se protected and unprotected activities, the distinction does have some continuing vitality. See Denham v. United States, 834 F.2d 518, 520 (5th Cir.1987) (“Once the government does undertake to supply a service, then it must be held responsible for negligent acts in supplying the service.”); LaRue v. Nat’l Park Serv. of Dep’t of Interior, No. B-09-139, 2011 WL 1828037, at *7 n. 8 (S.D.Tex. May 12, 2011) (“The Fifth Circuit has at least once graced Denham with an imprimatur of continued vitality after Gaubert.”) (citing Theriot v. United States, 245 F.3d 388, 396 (5th Cir.1998)); see also Wysinger v. United States, 784 F.2d 1252, 1253 (5th Cir.1986) (“[Ojnce the government has made a decision to act the government is responsible for acts negligently carried out even though discretionary decisions are constantly made as to how those acts are carried out.”). The alternative, protection under the exception of both the decision to take an action and the negligent implementation of that decision, “ ‘would essentially allow the Government to administratively immunize itself from tort liability under applicable state law as a matter of policy.’ ” In re Katrina Canal Breaches Consol. Litig., 647 F.Supp.2d 644, 706 (E.D.La.2009) (quoting Marlys Bear Med. v. U.S. ex rel. Sec’y of Dep’t of the Interior, 241 F.3d 1208, 1215 (9th Cir.2001)); see also Morales v. United States, 961 F.Supp. 633, 636 (S.D.N.Y.1997) (“Indeed, to expand the exception to encompass any government act or decision that simply involved the exercise of discretion would entirely eviscerate, and contradict, the Government’s waiver of sovereign immunity under the FTGA”) (emphasis in original). With the restraint urged by the Fifth Circuit and mindful that its application of the exception should not allow the exception from the FTCA to swallow the FTCA’s operation as a broad waiver of sovereign immunity, the Court concludes that the discretion Montalvo exercised was not grounded in the type of governmental policy the statute seeks to insulate from judicial review. The only policy considerations the government refers to as being relevant to Montalvo’s decision were staffing, funding, and minimizing government intrusion. Gov’t’s Mot. 9. Regarding the first, the Court does not see how the government can credibly maintain that Montalvo’s decision over whether to leave Plaintiff in place while seeking help or drive her to another location implicates staffing considerations of any sort. Montalvo had no supervisory authority, and thus no ability to making staffing decisions. At most, the only staff person whose time he had discretion to allocate was himself, and there is no suggestion that he was weighing his need to return to his duties against the time commitment of driving Plaintiff to another location. Given that he does not appear to have returned to his duties at all on the night in question, and that it seems likely that he would not have simply abandoned Plaintiff if he had decided not to drive her to another location, this policy consideration is, to put it charitably, misplaced. Similarly, regarding the funding concern, Montalvo was not making any outlays of funds, nor could his decision have conceivably changed the budgetary picture for the Border Patrol in the slightest. In addition, as the D.C. Circuit has found, budgetary constraints underlie virtually all government activity. Cope v. Scott, 45 F.3d 445, 448-49 (D.C.Cir.1995). So, even if funding were a possible concern here somehow, such a policy consideration would carry little weight. See id. Finally, the governmental intrusion concern is simply inapplicable here. The phrase first arose in a case involving an alleged failure by the National Park Service (“NPS”) to quickly mount a search and rescue operation in a national park at the first suggestion that a hiker was in distress. See Johnson v. U.S. Dep’t of Interior, 949 F.2d 332, 335 (10th Cir.1991). The Tenth Circuit held that the NPS’s “decision if, when or how to rescue inherently involves the balancing of safety objectives against such practical considerations as staffing, funding and minimizing government intrusion.” The intrusion, in that context, referred to hikers’ desire to experience the freedom and solitude of the wilderness, which would necessarily be thwarted if the NPS routinely mounted search and rescue patrols at the slightest hint of danger, as it would lead to unnecessary rescues in many instances. See id. at 339. As is plain, no such policy consideration could possibly apply to the facts here. The decision over how to obtain medical care for Plaintiff in no way involved impinging upon anyone’s desire for solitude. Thus, this policy consideration, and the citation to Johnson, are irrelevant to this case. In actuality, Montalvo’s decision was not one “ ‘susceptible to policy analysis,’ ” based upon the policy asserted here, see Freeman, 556 F.3d at 337 (quoting Gaubert, 499 U.S. at 325, 111 S.Ct. 1267), but rather only susceptible to general safety considerations. In this respect, Montalvo’s decision may usefully be considered as one relating to the best method of delivering medical care, a balancing of the need for speed against the need for specific equipment. The Border Patrol policy sets the broad policy that medical care should be delivered to suspected aliens, but this does not mean that any action an agent takes to obtain that medical care is protected from suit. While the government surely has a policy interest in ensuring that individuals receive prompt, professional care, and it gives its employees the discretion to weigh competing alternatives with regard to obtaining that care for others, this cannot mean that every choice between different methods of obtaining care is protected by the FTCA’s discretionary function exception. Otherwise, the government could never be liable for medical negligence under the FTCA, which is not the case. See Sigman v. United States, 217 F.3d 785, 795 (9th Cir.2000) (referring to “the now well-established principle that the discretionary function exception is intended to shield the government from liability for the exercise of governmental discretion, not to shield the government from claims of garden-variety medical malpractice”); see also Guile v. United States, 422 F.3d 221, 230-31 (5th Cir.2005) (implicitly acknowledging that medical judgments are not protected under the discretionary function exception, but finding the principle inapplicable to the facts before the court). Montalvo’s discretion may also be profitably compared to that of a vehicle driver, whose discretion the Supreme Court found was not grounded in policy concerns and thus should not be protected under the discretionary function exception. See Gaubert, 499 U.S. at 325 n. 7, 111 S.Ct. 1267. While a driver of a vehicle certainly exercises discretion every second that he is on the road, that is not the type of discretion the FTCA exception seeks to protect. This is true even though one might accurately describe the driver’s discretion as implicating economic efficiency concerns and safety considerations. “The need for expedition vs. the need for safety may well represent a policy choice,-but the Government does not expect its drivers to make that choice on a case-by-case basis.” Gaubert, 499 U.S. at 336, 111 S.Ct. 1267 (Scalia, J., concurring) (internal citation omitted). In such circumstances, the discretion by the driver, like that by Montalvo here, is not grounded in social, economic, or political policy, but merely the execution of a safety policy chosen by higher level officials, albeit one requiring discretion to implement. The case most factually similar to this one, and thus the comparison most persuasive to the Court, involved a claim that emergency responders acted negligently in failing to stabilize the spine of the victim before delivering treatment and trying to move her. See Fang v. United States, 140 F.3d 1238, 1240 (9th Cir.1998). There, the Ninth Circuit came to the same conclusion as the Court does here, drawing a clear separation between discretionary decisions of policy and those based on a lower level of unprotected discretion: No social, economic, or political policy is implicated in the decision whether to stabilize the spine of a person who may have suffered a head, neck, or back injury prior to treatment. This is simply an ordinary judgment made by EMTs in applying their training and expertise to an emergency situation. Fang, 140 F.3d at 1243. Like the Ninth Circuit, the Court finds the type of discretion Montalvo exercised was a simple matter of whether he exercised due care in handling an injured person. As with cases of premises liability, this discretion involved here is of a quintessential tort variety, not one that could give rise to second guessing of governmental economic, social, or political policy decisions. See Gotha v. United States, 115 F.3d 176, 181 (3d Cir.1997) (describing a claim against the Navy involving premises liability as “a mundane, administrative, garden-variety, housekeeping problem that is about as far removed from the policies applicable to the Navy’s mission as it is possible to get”); see also Sanchez v. Bellefeuille, 855 F.Supp. 587, 593 (N.D.N.Y.1994) (holding that the Border Patrol’s decision on whether or not to take into account relevant traffic safety considerations when designing a checkpoint related only to safety of approaching motorists, not any public policy considerations). The government cites to a Fifth Circuit opinion involving the discretionary function exception in support of its position, but the Court does not find that decision controls the outcome here. In a per curiam decision in Davis v. United States, 597 F.3d 646 (5th Cir.2009), the Fifth Circuit held that a Navy helicopter rescue team’s decision to attempt a rescue of a woman during Hurricane Katrina using the type of equipment they had, rather than radioing to a nearby helicopter to attempt the rescue with more suitable equipment, was protected by the discretionary function exception. 597 F.3d at 650-51. The Fifth Circuit’s opinion is rather terse and so does not assist much in the present analysis, but the case is in any event distinguishable. In Davis, the Fifth Circuit found the rescue team had to decide “ ‘when, where, and how to allocate limited resources within the exigencies of an emergency,’ ” and to consider “[s]afety, efficiency, timeliness, and allocations of resources.” The rescue team had to make these determinations in the context of the historic storm and monumental scale of destruction and breakdown of society that occurred in New Orleans. They did not confront any issues of medical