C.B. v. United States

          MEMORANDUM OPINION AND ORDER

          EMILY C. MARKS CHIEF UNITED STATES DISTRICT JUDGE

         On January 16, 2014, Plaintiff, Dina Boley (“Boley”), individually and on behalf of her minor child C.B., ^[1] filed this action pursuant to the Federal Torts Claims Act (“FTCA”), 28 U.S.C. § 2671, the Fourteenth Amendment to the United States Constitution via 42 U.S.C. § 1983 and state law, seeking damages against defendants the United States, the United States Army, Kathy Johnson (“Johnson”) and Toni Hampton (“Hampton”) for actions taken against her child. Boley alleges that, while attending the Child Development Center at Fort Rucker, Alabama, C.B., was physically abused by his teacher Johnson. Boley also alleges that Hampton, as the Director of the Child Development Center, failed to properly supervise Johnson which resulted in Johnson abusing C.B. Boley alleges claims under the FTCA, substantive and procedural due process claims under the Fourteenth Amendment, and claims under state law. She seeks compensatory damages and an award of attorney's fees.

         Pursuant to 28 U.S.C. § 2679(d)(1), the United States was substituted for Hampton as the defendant for the state law tort claims.^[2] (Doc. 28). The sole remaining defendants in this action, therefore, are the United States and the United States Army.^[3] Jurisdiction in this Court is invoked pursuant to its federal question jurisdiction, 28 U.S.C. § 1331, and the jurisdictional grant contained in 28 U.S.C. § 1346(b) for the federal tort claims. It has supplemental jurisdiction of the Plaintiff's state law claims pursuant to 28 U.S.C. § 1367.

         Now pending before the Court is the Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), asserting that (1) the United States Army is not a proper party under the FTCA, and (2) this court lacks subject matter jurisdiction because the Plaintiffs' claims are barred by the assault and battery exception to the FTCA, 28 U.S.C. § 2680(h) and the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a). (Doc. 11). The motion is fully briefed and ripe for resolution.^[4] After careful consideration of the motion, and the briefs filed in support of and in opposition to the motion, the Court concludes that the Defendants' motion to dismiss is due to be granted and this case dismissed.

         DISCUSSION

         The Plaintiffs' exclusive remedy against the United States is pursuant to the Federal Tort Claims Act. See 28 U.S.C. § 2679. The law is well-established that the United States, as sovereign, is absolutely immune from suit unless it consents to be sued. United States v. Sherwood, 312 U.S. 584, 588-89 (1941). “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” JBP Acquisitions, LP v. U.S. ex. rel. F.D.I.C., 224 F.3d 1260, 1263 (11th Cir. 2000) (quoting F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). See also Means v. United States, 176 F.3d 1376, 1378 (11th Cir. 1999) (“[S]overeign immunity bars suit against the United States [and its agencies] except to the extent it consents to be sued.”).

         The Plaintiffs sued both the United States and the United States Army. “It is beyond dispute that the United States, and not the responsible agency or employee, is the proper party defendant in a Federal Tort Claims Act suit.” Galvin v. Occupational Safety & Health Admin., 860 F.2d 181, 183 (5th Cir. 1988). See also Goble v. Ward, 628 Fed.Appx. 692, 698 (11th Cir. 2015); Trupei v. United States¸304 Fed.Appx. 776, 782 (11th Cir. 2008) (“As an initial matter, the FTCA authorizes claims only against the United States.”). This Court, therefore, lacks jurisdiction over any FTCA claims asserted against the United States Army. The motion to dismiss the United States Army is due to be granted, and the United States Army is due to be dismissed as a defendant in this action.

         The Court now turns to Boley's claims against the United States. Claims against the United States are barred by the doctrine of sovereign immunity except for those tort claims for which Congress has waived sovereign immunity and granted consent for the United States to be sued.^[5] See 28 U.S.C. § 2679. Under the FTCA, Congress waived sovereign immunity and granted consent for the United States to be su ed for acts commi t t e d by any “employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1).^[6] See also, Cohen v. United States, 151 F.3d 1338, 1340 (11th Cir. 1998); Ochran v. United States, 117 F.3d 495, 499 (11th Cir. 1997).

         There are, however, several explicit exceptions to this waiver of sovereign immunity, Cohen, 151 F.3d at 1340, including an “assault and battery” exception and the “discretionary function” exception both of which are at issue in this case. The law is well- established that “[t]he Federal Torts Claims Act's waiver of sovereign immunity does not apply to “any claim arising out of assault [or] battery, ” 28 U.S.C. § 2680(h)[.]” United States v. Shearer, 473 U.S. 52, 54 (1985). The Plaintiffs argue that “physically abusive contact” as alleged in the complaint is not synonymous with assault and battery, and thus, the claims are not barred by the FTCA. (Doc.17 at 6-8) . T h e Plaintiffs parse their language too finely. In their complaint, the Plaintiffs allege that “C.B. began to display bruising and marks on various parts of his body including his back, arms and face.” (Doc. 1 at 3, para. 13). The Plaintiffs further allege that “Boley was informed that C.B. had been subjected to physically abusive contact. . . . [V]ideos revealed Kathy Johnson engaging in physically abusive contact with C.B. and Kathy Johnson spraying a substance into the face of C.B.” (Id. at 4, para. 16). These allegations are sufficient for the Court to conclude that Boley's claims fall within the assault and battery exception of the FTCA. “‘It is the substance of the claim and not the language used in stating it which controls' whether the claim is barred by an FTCA exception.” JBP Acquisitions, 224 F.3d at 1264. The Plaintiffs cannot escape application of the assault and battery exception by characterizing the conduct of Johnson as “physically abusive.” Id. It is clear from the Plaintiffs' description of the claims that their claims fall within the assault and battery exception to the FTCA.^[7] Consequently, the Court concludes that it lacks subject matter jurisdiction over this case.^[8]

         CONCLUSION

         “If one of the exceptions [of the FTCA] applies, the bar of sovereign immunity applies.” Dolan v. United States Postal Service, 546 U.S. 481, 485 (2006). The Plaintiffs' claims are barred by sovereign immunity because the alleged conduct falls within the assault and battery exception to the FTCA. Accordingly, it is ORDERED that the Defendants' motion to dismiss (doc. 11) is GRANTED and this case is DISMISSED with prejudice for lack subject matter jurisdiction.

         A separate final judgment will be entered.

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