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Ford v. United States

United States District Court, N.D. Georgia, Atlanta Division

October 4, 2017

WARREN FORD, Plaintiff,



         This matter is before the Court on Defendant United States of America's (“United States”) Motion to Dismiss [6].

         I. BACKGROUND

         On September 1, 1992, Plaintiff Warren Ford (“Plaintiff”) was convicted, in the Northern District of Georgia, “of various drug and firearm charges.” (Compl. ¶ 2). On September 23, 1992, the trial court granted Plaintiff's motions for judgment of acquittal and a new trial. (Compl. ¶ 2). On October 29, 1992, following a second jury trial, Plaintiff was convicted of the same offenses for which he was initially tried. (Compl. ¶ 3). Plaintiff was sentenced to 260 months imprisonment, followed by a period of supervised release. (Compl. ¶¶ 6-7). In January 2011, Plaintiff was released from prison. (Compl. ¶ 11).

         On January 30, 2017, Plaintiff filed his pro se Complaint [1] against the United States and at least seven individual defendants (“Individual Defendants”), all of whom allegedly were “involved in or witness[es] to” Plaintiff's injuries. ([1.1] ¶ 13). Plaintiff seeks damages “for personal injuries arising from AUSA John S. Davis were [sic] grossly negligent and who investigated, caused [Plaintiff] to be retried” after his post-trial motions were granted. (Compl. at 1-2). Plaintiff asserts claims for false imprisonment, intentional infliction of emotional distress, and violations of the Fourth, Fifth, Eighth and Fourteenth Amendments. (Compl. at 2). Plaintiff purports to brings these claims under 42 U.S.C. § 1983 and the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (“FTCA”). (Compl. at 1-2).

         On June 8, 2017, the United States filed its Motion to Dismiss, arguing that Plaintiff's claims are barred by sovereign immunity and that the Court thus lacks subject matter jurisdiction over this action. Plaintiff did not file a response, and the United States' Motion to Dismiss is deemed unopposed. See LR 7.1(B), NDGa. The Individual Defendants have not entered appearances in this action.


         A. Legal Standard

         “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). They possess only that power authorized by the Constitution and conferred by Congress. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986). “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).

         A motion to dismiss for lack of subject matter jurisdiction may be either a “facial” or “factual” attack. Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003). “‘Facial attacks' on the complaint require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.” Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). “‘Factual attacks, ' on the other hand, challenge the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered.” Id. In a factual attack, the presumption of truthfulness afforded a plaintiff under Federal Rule of Civil Procedure 12(b)(6) does not apply. Scarfo v. Ginsberg, 175 F.3d 957, 960-61 (11th Cir. 1999). “[T]he trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case . . . . [T]he existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Lawrence, 919 F.2d at 1529. The plaintiff has the burden to prove that jurisdiction exists. Elend v. Basham, 471 F.3d 1199, 1206 (11th Cir. 2006).

         B. Analysis

         1. Plaintiff's FTCA Claims

         “[T]he United States, as sovereign, is immune from suit save as it consents to be sued . . ., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.” United States v. Mitchell, 445 U.S. 535, 538 (1980); see Block v. N. Dakota, 461 U.S. 273, 287 (1983) (“The basic rule of federal sovereign immunity is that the United States cannot be sued at all without the consent of Congress.”). “A waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text, and will not be implied. Moreover, a waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citations omitted). “If there is no specific waiver of sovereign immunity as to a particular claim, the district court lacks subject matter jurisdiction over the suit.” Lichtenberg v. Sec'y of the Navy, 627 F. App'x 916, 917 (11th Cir. 2015).

         The FTCA provides a “limited waiver” of sovereign immunity, “making the United States liable for ‘injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office [or] employment.'” JBP Acquisitions, L.P. v. United States ex rel. FDIC, 224 F.3d 1260, 1263 (11th Cir. 2000) (quoting 28 U.S.C. § 1346(b)(1)). “This broad waiver of sovereign immunity is subject to a number of exceptions set forth in § 2680, ” including the “intentional tort exception, ” which “preserves the Government's immunity from suit for ‘any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.'” Millbrook v. United States, 569 U.S. 50, 52 (2013) (quoting 28 U.S.C. § 2680(h)). The FTCA's general waiver of sovereign immunity applies, however, to claims based on the conduct of “investigative or law enforcement officers of the United States Government” where the claims arise out of “assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.” 28 U.S.C. § 2680(h).

         Plaintiff asserts a claim for “false imprisonment as an unlawful restraint on a person's liberty and freedom of movement in violation of 28 U.S.C. § 2680(h).” (Compl. at 2). “The United States has waived sovereign immunity for claims of [false imprisonment] only when the acts are committed by ‘investigative or law enforcement officers of the United States Government.'” Zargari v. United States, 658 F. App'x 501, 508 (11th Cir. 2016) (quoting 28 U.S.C. § 2680(h)). An “investigative or law enforcement officer” is “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” 28 U.S.C. § 2680(h).

         Plaintiff's false imprisonment claim, under the FTCA, is barred by sovereign immunity because Plaintiff has not shown that the individuals who caused his injuries are “investigative or law enforcement officers of the United States Government.” 28 U.S.C. § 2680(h). Plaintiff does not describe any of the Individual Defendants other than Defendant John S. Davis, who apparently is an Assistant United States Attorney (“AUSA”). (Compl. at 2). Defendants Candiss Leigh Howard, Elizabeth M. Hathaway, Gary Scott Hulsey, Janis S. Gordon, and William H. Thomas, Jr., also appear to be AUSAs who entered appearances in Plaintiff's criminal action. ([6] at 3-4).[1] “[P]rosecutors do not qualify as ‘investigative or law enforcement officer[s]' within the meaning of 28 U.S.C. § 2680(h) as they are not empowered to execute searches, seize evidence, or make arrests.” Bonilla v. United States, 652 F. App'x 885, 890 (11th Cir. 2016) (quoting 28 U.S.C. § 2680(h)). “Nor does the complaint allege that [the Individual Defendants or any other alleged wrongdoer] performed any of these functions. Accordingly, based on the allegations in this case, [the individuals who caused Plaintiff's injuries, including the Individual Defendants, ] do[] not qualify as . . . ‘investigative or law enforcement officer[s]” under the plain meaning of § 2680(h), and sovereign immunity precludes FTCA liability arising from [their] allegedly tortious conduct.” Id. To the extent Plaintiff asserts constitutional tort claims under the FCTA, ...

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