United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DIJFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant United States of
America's (“United States”) Motion to Dismiss
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).
January 30, 2017, Plaintiff filed his pro se
Complaint  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.
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
THE UNITED STATES' MOTION TO DISMISS
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).
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).
Plaintiff's FTCA Claims
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).
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.
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.
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. ( at 3-4).
“[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,