C.B. et al v. United States of America et al

Filing 46

MEMORANDUM OPINION AND ORDER: it is ORDERED that the Dfts' 11 motion to dismiss is GRANTED and this case is DISMISSED with prejudice for lack subject matter jurisdiction; A separate final judgment will be entered. Signed by Chief Judge Emily C. Marks on 8/27/2019. (alm, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
C.B., by and through DINA BOLEY,
and DINA BOLEY, individually,

)
)
)
Plaintiffs,
)
)
v.
) CIVIL ACTION NO. 1:14-cv-32-ECM
)
(WO)
UNITED STATES OF AMERICA, et al., )
)
Defendants.
)
MEMORANDUM OPINION and ORDER
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

1
Pursuant to the E-Government Act of 2002, as amended on August 2, 2002, and M.D. Ala. General Order
No. 2:04mc3228, the court has redacted the minor child’s name and refers to him only by his initials, C.B..

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

2
    In count four of the complaint, Boley alleges state law claims of negligence and negligent supervision
against Johnson and Hampton individually. Hampton was dismissed as a defendant in this action on March
30, 2015, (doc. 37), and the Plaintiffs conceded during a status conference on September 20, 2018 that
service on Kathy Johnson was never perfected. Consequently, she is not a defendant in this action. Because
the state law claims are asserted only against the individuals who are not parties to this action, those claims
are due to be dismissed.
3

In response to the Defendants’ motion to dismiss, the Plaintiffs concede that if the FTCA governs the
claims, “then the United States becomes the only defendant and the causes of action asserted under Counts
I and II are the exclusive remedy available to plaintiffs.” (Doc. 17 at 2).
   In their response to the Defendants’ motion to dismiss, the Plaintiffs requested the Court “defer ruling on
the United States’ Motion to Dismiss” to conduct “limited discovery” on the issue of the applicability of
the FTCA. (Doc. 17 at 4). The Plaintiffs’ response was filed on April 18, 2014. At a hearing on the
2 

4

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 F. App’x 692,
698 (11th Cir. 2015); Trupei v. United States¸304 F. App’x 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

Defendants’ motion to dismiss on September 20, 2018, the Plaintiffs acknowledged that the motion was
fully briefed and ripe for adjudication.
3 

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 sued for acts committed
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                                                            
5
   The Plaintiffs allege a constitutional tort pursuant to 42 U.S.C. § 1983. However, the law is clear that
“the United States simply has not rendered itself liable under § 1346(b) for constitutional tort claims.”
F.D.I.C. v. Meyer, 510 U.S. 471, 478 (1994). Consequently, the Plaintiffs’ constitutional tort claim
contained in count three of the complaint is due to be dismissed as barred by sovereign immunity.  
  The FTCA, in pertinent part, provides that

6

[t]he district courts ... shall have exclusive jurisdiction of civil actions on claims against
the United States, for money damages ... 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, under
circumstances where the United States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b). See also 28 U.S.C. § 2679(b)(1).  
4 

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). The 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

5 

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.
Done this 27th day of August, 2019.
/s/Emily C. Marks
EMILY C. MARKS
CHIEF UNITED STATES DISTRICT JUDGE

7
 The Plaintiffs’ claims of negligent supervision also fail under the assault and battery exception to the
FTCA. “Section 2680(h) does not merely bar claims for assault and battery; in sweeping language it
excludes any claim arising out of assault or battery. We read this provision to cover claims like
respondent’s that sound in negligence but stem from a battery committed by a Government employee.”
Shearer, 473 U.S. at 55 (emphasis in original).

  Because the Court concludes that the Plaintiffs’ claims are barred by the FTCA exception for claims
arising out of assault and battery, it pretermits discussion of the discretionary function exception.  
6 

8