Janel Smith v. USA, et al
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Frank H. Easterbrook, Circuit Judge; Ann Claire Williams, Circuit Judge and David F. Hamilton, Circuit Judge. [6814595-1]  [16-3117]
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 11, 2017*
Decided January 27, 2017
FRANK H. EASTERBROOK, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
JANEL N. SMITH,
UNITED STATES OF AMERICA and
BUREAU OF ALCOHOL, TOBACCO,
FIREARMS AND EXPLOSIVES,
Appeal from the United States District Court
for the Southern District of Illinois.
Nancy J. Rosenstengel,
O R D E R
Janel Smith, an investigatory analyst for the Bureau of Alcohol, Tobacco, Firearms
and Explosives, appeals the dismissal of her suit against the United States and the
Bureau under the Federal Tort Claims Act , 28 U.S.C. §§ 1346(b), 2674. We affirm.
* We have agreed unanimously to decide the case without oral argument because
the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
The allegations in Smith’s amended complaint, as the district court noted, are
“quite murky.” According to her complaint, Smith informed Bureau management that
she intended to file both a complaint with the Equal Opportunity Employment
Commission and a whistleblower complaint with the Office of the Inspector General
because she was being harassed by her supervisor, Lisa Storey, and a co‐worker, Frances
Bruce. After filing these complaints, Smith maintained that Storey harassed and
threatened her on multiple occasions. Storey, Smith alleged, told her that the
Department of Justice was tracking her, that she would be “blacklisted” for filing
administrative complaints, and that she would lose any suit she filed against the Bureau.
Sometime later, before responding to a discovery request from the EEOC about her
complaint, Smith asserted that the Bureau helped Storey replace the hard drive in her
computer. The harassment escalated to workplace violence more than a year later, Smith
further alleged, when Bruce intentionally hit her with a stack of paper.
Smith filed this suit seeking monetary damages against the United States and the
Bureau for “negligent, wrongful acts, and omissions” committed against her by
government employees during the course of her employment. She asserted that she was
bringing her claims under the FTCA; the Whistleblower Protection Act of 1989, 5 U.S.C.
§ 1221; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e‐2; 28 U.S.C. § 2680(a);
28 U.S.C. § 2680(h); 18 U.S.C. § 2701; the Due Process Clause of the Fourteenth
Amendment; and two internal Bureau policies, ATF Order 1340.4A and ATF Order
The district court construed Smith’s complaint to include twelve counts under the
FTCA, eleven of which it dismissed with prejudice and one without prejudice.1 See FED.
R. CIV. P. 12(b)(6). For purposes of this appeal, the most noteworthy claims dismissed by
the district court were Smith’s due process claim and her claim based on the Bureau’s
removal of Storey’s hard drive before the completion of discovery in violation of ATF
Order 1340.4A and 18 U.S.C. § 2071.
The court allowed Smith five weeks to amend her complaint to state a claim for
intentional infliction of emotional distress and to include any non‐FTCA claims—such as
claims based on Title VII or Bivens—that the district court did not consider. When Smith
1 The district court dismissed ten counts with prejudice. It then dismissed Smith’s
Title VII count with prejudice but allowed her leave to amend her complaint to name a
failed to amend her complaint by the court’s deadline, the court dismissed the action
under Fed. R. Civ. P. 41(b).
Smith’s appeal is difficult to parse, but as best we can tell she challenges the
dismissal of her claim relating to the destruction of Storey’s hard drive. The district court
dismissed this claim against the Bureau because it was not a proper defendant. The
district court also dismissed this claim against the United States because Smith did not
identify any tort for which a private person could be found liable for removing a hard
drive before the completion of a government investigation. To the extent her claim could
be construed as one for spoliation of evidence, the court added that Smith failed to allege
facts sufficient to state such a claim. Alternatively, if she meant to assert a claim of
misrepresentation (in that the removal of the hard drive tainted the completeness or
accuracy of information given to the EEOC regarding her discrimination complaint), she
would be barred from doing so because the FTCA expressly excludes claims arising out
We agree with the district court that Smith did not state any claim relating to the
replacement of Storey’s hard drive. The district court properly dismissed the claim
against the Bureau because the United States is the only proper defendant in a FTCA
suit. Jackson v. Kotter, 541 F.3d 688, 693 (7th Cir. 2008). And it correctly determined that
Smith did not state a claim against the United States because she did not identify an
underlying state‐law claim—a prerequisite to bringing a FTCA suit against the United
States. See 28 U.S.C. § 1346(b)(1); Reynolds v. United States, 549 F.3d 1108, 1111 (7th
Cir. 2008). In Illinois, spoliation of evidence is not an independent tort but rather a type
of negligence. See Boyd v. Travelers Ins. Co., 652 N.E.2d 267, 270–71 (Ill. 1995). To succeed
on her negligence claim, Smith was required to allege and show that the defendant owed
her a duty, that the defendant breached that duty, and that the breach was the proximate
cause of her injuries. See Furry v. United States, 712 F.3d 988, 992 (7th Cir. 2013). But Smith
did not allege in her complaint that she suffered any injury from the replacement of the
hard drive, so her claim was rightly dismissed.
Smith next asserts that the district court improperly dismissed her due process
claim against the United States because she adequately alleged that the replacement of
Storey’s hard drive violated her due process rights. But to the extent Smith asserts that
she can state a claim under the FTCA for a violation of her due process rights, she is
mistaken. Constitutional tort claims are not cognizable under the FTCA. See F.D.I.C.
v. Meyer, 510 U.S. 471, 477–78 (1994). And to the extent she argues that the district court
should have evaluated whether she adequately stated a Bivens claim with respect to the
replacement of Storey’s hard drive, we agree with the court’s decision not to do so. Her
complaint focused on the alleged harassment as the grounds for her due process claim,
not the replacement of Storey’s hard drive. And any Bivens claim would necessarily fail
because Smith did not name an individual defendant in her complaint. See United States
v. Norwood, 602 F.3d 830, 837 (7th Cir. 2010). What’s more, Smith also was given leave to
file an amended complaint so that she could include any additional claims (including a
Bivens claim against an individual defendant) not considered by the district court—a
practice that we have encouraged, see Stanek v. St. Charles Comm. Unit Sch. Dist. No. 303,
783 F.3d 634, 639 (7th Cir. 2015), and failed to do so.
One final note: the district court should have recognized that it converted the
motions to dismiss into motions for summary judgment under FED. R. CIV. P. 12(d)
because it relied on matters outside of the pleadings to resolve the motions. United States
v. Rogers Cartage Co., 794 F.3d 854, 861 (7th Cir. 2015). The court thus should have given
the parties notice of the motions’ conversion and an opportunity to present materials
relevant to the motions. Id. at 861. Its failure to do so was error, see Rutherford v. Judge &
Dolph Ltd., 707 F.3d 710, 713–14 (7th Cir. 2013), but it was harmless because consideration
of these materials could not have affected Smith’s substantial rights. See Loeb Indus., Inc.
v. Sumitomo Corp., 306 F.3d 469, 479–80 (7th Cir. 2002). Smith responded to the
defendants’ motions with exhibits of her own and reasserted all of the facts set forth in
her Standard Form 95, which the defendants had initially produced.
We have considered Smith’s other arguments and none has merit.
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