United States District Court, M.D. Alabama, Southern Division
C.B., by and through DINA BOLEY, and DINA BOLEY, individually, Plaintiffs,
UNITED STATES OF AMERICA, et al., Defendants.
MEMORANDUM OPINION AND ORDER
C. MARKS CHIEF UNITED STATES DISTRICT JUDGE
January 16, 2014, Plaintiff, Dina Boley
(“Boley”), individually and on behalf of her
minor child C.B.,  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.
to 28 U.S.C. § 2679(d)(1), the United States was
substituted for Hampton as the defendant for the state law
tort claims. (Doc. 28). The sole remaining defendants
in this action, therefore, are the United States and the
United States Army. 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.
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. 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.
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.”).
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
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. 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). 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).
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. Consequently, the Court concludes that it
lacks subject matter jurisdiction over this
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.
separate final judgment will be entered.