Adderley v. United States of America et al

Filing 51

MEMORANDUM OPINION as more fully set out. Signed by Magistrate Judge Herman N Johnson, Jr on 08/10/18. (SPT )

FILED
2018 Aug-10 AM 08:01
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
WILFRED T. ADDERLEY,
Plaintiff
vs.
UNITED STATES OF AMERICA, et al.,
Defendants

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) Case No. 5:17-cv-01431-HNJ
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MEMORANDUM OPINION
This action proceeds before the court on the Motion to Dismiss filed by
Defendants United States of America; Elaine Duke, in her former, official capacity as
Acting Secretary of Homeland Security; and the Transportation Security
Administration. (Doc. 19). Defendants seek dismissal of this action pursuant to
Rules 12(b)(1) and 12(b)(6), Federal Rules of Civil Procedure. For the reasons set out
herein, the court GRANTS the Motion to Dismiss.
STANDARD OF REVIEW
A Federal Rule of Civil Procedure 12(b)(1) motion challenges the court’s exercise
of subject-matter jurisdiction over a case. A court should grant a Rule 12(b)(1) motion
“only if it appears certain that the plaintiff cannot prove any set of facts in support of
his” jurisdictional averment. Harris v. Bd. of Trustees Univ. of Ala., 846 F. Supp. 2d 1223,
1232 (N.D. Ala. 2012) (quoting Ramming v. United States, 281 F.3d 158, 161 (5th Cir.
2001)). The burden of proof on a subject-matter jurisdiction challenge rests upon the

party asserting jurisdiction. Id. “A federal court must always dismiss a case upon
determining that it lacks subject matter jurisdiction . . . .” Goodman ex rel. Goodman v.
Sipos, 259 F.3d 1327, 1331 n. 6 (11th Cir. 2001).
A Rule 12(b)(1) motion permits a facial or factual attack. Willett v. United States,
24 F.Supp.3d 1167, 1173 (M.D. Ala. 2014) (citing McElmurray v. Consol. Gov’t of Augusta–
Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007)). “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.” Garcia v. Copenhaver, Bell & Assocs., M.D.’s, P.A., 104
F.3d 1256, 1261 (11th Cir. 1997) (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1528-29
(11th Cir. 1990)) (other citations omitted). On the other hand, “factual attacks”
challenge “the existence of subject matter jurisdiction in fact, irrespective of the
pleading, and matters outside the pleadings, such as testimony and affidavits, are
considered.” Id. Hence, the court need not assume the veracity of a complaint’s
allegations when a party raises a factual challenge to subject-matter jurisdiction, and
thus, the court may consider extrinsic evidence such as affidavits. Odyssey Marine
Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1169 (11th Cir. 2011)
(citations omitted).
When “a Rule 12(b)(1) motion is filed in conjunction with other Rule 12
motions, the court should consider the Rule 12(b)(1) jurisdictional attack before
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addressing any attack on the merits.” Ramming, 281 F.3d at 161 (citing Hitt v. City of
Pasadena, 561 F.2d 606, 608 (5th Cir. 1977)); 1 Harris, 846 F.Supp.2d at 1230. The party
commencing suit in federal court bears the burden of establishing, by a preponderance
of the evidence, facts supporting the existence of federal jurisdiction. Underwriters at
Lloyd’s, London v. Osting-Schwinn, 613 F.3d 1079, 1085 (11th Cir. 2010).
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a “short
and plain statement of the claim” demonstrating the pleader is entitled to relief. Fed.
R. Civ. P. 8(a)(2). In conjunction therewith, Federal Rule of Civil Procedure 12(b)(6)
permits a court to dismiss a complaint if it fails to state a claim for which relief may be
granted. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Court revisited the applicable
standard governing Rule 12(b)(6) motions to dismiss. First, courts must take note of
the elements a plaintiff must plead to state the applicable claims at issue. Id. at 675.
After establishing the elements of the claim at issue, the court identifies all
well-pleaded, non-conclusory factual allegations in the complaint and assumes their
veracity. Id. at 679. Well-pleaded factual allegations do not encompass mere “labels
and conclusions,” legal conclusions, conclusory statements, or formulaic recitations and
threadbare recitals of the elements of a cause of action. Id. at 678 (citations omitted).
In evaluating the sufficiency of a plaintiff’s pleadings, the court may draw reasonable

1

All decisions of the former Fifth Circuit handed down prior to September 30, 1981, constitute
binding precedent on this Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).
3

inferences in plaintiff’s favor. Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d
1242, 1248 (11th Cir. 2005).
Third, a court assesses the complaint’s well-pleaded allegations to determine if
they state a plausible cause of action based upon the identified claim’s elements. Iqbal,
556 U.S. at 678.

Plausibility ensues “when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged,” and the analysis involves a context-specific task requiring a court
“to draw on its judicial experience and common sense.” Id. at 678, 679 (citations
omitted). The plausibility standard does not equate to a “probability requirement,” yet
it requires more than a “mere possibility of misconduct” or factual statements that are
“merely consistent with a defendant’s liability.” Id. at 678, 679 (citations omitted).
BACKGROUND
Plaintiff Wilfred T. Adderley brought this action against the United States of
America, former Acting Secretary of Homeland Security Elaine Duke in her official
capacity, and the Transportation Security Administration (TSA). He filed his original
complaint on August 22, 2017. (Doc. 1). Adderley filed an amended complaint on
September 26, 2017. As this case proceeded, Adderley voluntarily dismissed with
prejudice his claims against Officer Young, the TSA officer who performed the search
at issue. (Docs. 48 & 49). Finally, Adderley concedes the court should dismiss his
FTCA claims against the TSA and Duke. (Doc. 30 at 16).
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Adderley is a black Bahamian and resident of Nassau, Bahamas. He avers that
on August 25, 2013, during travel from Huntsville, Alabama, to Atlanta, Georgia, he
traversed a TSA checkpoint with an eight-ounce container of almond milk. A female
security officer obtained confirmation from Adderley that he consumes almond milk
for medical reasons. However, she informed Adderley he must undergo a pat-down
search because the liquid exceeded 3.5 ounces. She directed Adderley to a male
security officer (Officer Young) for the search.
Officer Young informed Adderley how he would conduct the search and advised
him that during the pat down of Adderley’s legs, he would come into contact with
Adderley’s private area. Adderley objected and requested a private search to remove
his pants and dispel any suspicions. Young replied the search constituted standard
procedure when a passenger carries liquid in carry-on luggage for medical purposes.
Adderley requested to drink the almond milk to avoid a search, yet Young did not
honor the request.
Adderley avers he informed Young prior to the search he had pain in his
abdomen, lower back, hips, and thighs because of a previous spinal injury. Adderley
alleges Young conducted the search in an aggressive manner, touching his genitals and
delivering a “karate chop” thereto at the top of each thigh search. Adderley expressed
his objection and discomfort; Young replied he performed the search in adherence with
procedure.
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After the search, Adderley asked for a supervisor, and TSA officer Nicewonder
overheard his complaint. Nicewonder stated Officer Young should have granted
Adderley’s request for a private search, and then advised Adderley about his right to file
a formal complaint.
After several communications with TSA personnel regarding the incident,
Adderley filed a claim with TSA on August 25, 2015, alleging sexual assault and
discrimination against Officer Young and seeking $569,610.74 in damages. By letter
dated June 27, 2016, TSA denied Adderley’s claim.
Adderley sought reconsideration of the denial on November 23, 2016. On
December 29, 2016, TSA sent a letter denying his claim again after reconsideration and
advising Adderley he must file suit no later than six months from the mailing date of the
consequent reconsideration denial. Adderley avers he did not receive this letter at his
address in the Bahamas until February 23, 2017. He filed his Complaint on August 22,
2017, nearly two months after his June 29, 2017, deadline based upon the
reconsideration denial’s mailing date.
Adderley claims Young violated TSA guidelines by conducting the pat-down
search and by not allowing a private search. He further contends Young aggressively
conducted the search as if Adderley had committed a suspicious or illegal act, when
Adderley had not committed such conduct. He claims Caucasian passengers did not

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suffer such scrutiny or abuse. Adderley also claims Young violated his personal dignity
and physically injured him.
In the Amended Complaint, Adderley asserts claims of race discrimination
pursuant to the Fourth and Fourteenth Amendments and the Federal Tort Claims Act
(Count I); racial profiling pursuant to the Fourth and Fourteenth Amendments (Count
II); willful and malicious torts constituting wrongful conduct pursuant to the Federal
Tort Claims Act (Count III); willful, malicious, and unreasonable search and seizure
pursuant to the Fourth Amendment (Count IV); malicious and willful use of excessive
force (Count V); outrage/intentional infliction of emotional distress (Count VI); and
negligence (Count VII). 2 Adderley seeks a declaratory judgment that Defendants’
policies, procedures, conditions, and customs violate Adderley’s rights under the
Fourth3 and Fourteenth Amendments; a permanent injunction enjoining Defendants
and their agents from continuing to violate Adderley’s Fourth and Fourteenth
Amendment rights; and compensatory and/or nominal damages.
ANALYSIS
Defendants seek dismissal of Adderley’s complaint for lack of subject matter
jurisdiction due to sovereign immunity as to the constitutional torts; failure to timely file
2

The amended complaint also contained claims against Officer Young in his individual capacity for
battery (Count VIII) and assault (Count IX). However, because plaintiff dismissed his claims against
Officer Young, Counts VIII and IX no longer remain.

3

The amended complaint refers to “the Court and Fourteenth Amendments” (Doc. 8, ¶ 94); however,
the court discerns plaintiff meant to invoke the Fourth Amendment.
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his FTCA claim in this court; and failure to state a claim for relief on his constitutional
claims. For the reasons set out below, the court finds merit in the motion to dismiss.
I.

Sovereign Immunity Bars Adderley’s Constitutional Tort Claims

Adderley invokes in Counts I, II, and IV, constitutional tort abridgements of the
Fourth and Fourteenth Amendments, in particular race discrimination, racial profiling,
and unreasonable search and seizure. Because Adderley dismissed the individual
capacity claims against Officer Young, the remaining counts – including the
afore-referenced constitutional tort claims – incite claims against the United States itself
or its agencies (the TSA and the Department of Homeland Security via suit against
Duke in her official capacity as former, Acting Secretary of Homeland Security). In
these circumstances, the sovereign immunity doctrine clearly bars Adderley’s
constitutional tort claims against the United States and its entities.
“[T]he United States may not be sued without its consent and . . . existence of
that consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206,
2012 (1983). Sovereign immunity, which is jurisdictional in nature, precludes civil
liability against the federal government and its agencies absent a congressional waiver.
Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). As the Eleventh Circuit clearly
delineates:
Because the government has immunity by default while an officer’s
[individual capacity] immunity must be affirmatively justified, there are,
unsurprisingly, cases where the government is immune but the federal
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officer is not. . . . The government itself . . . remains immune, even if the
right allegedly violated by the officer is clearly established. . . . As a result,
the government may be immune from liability for damages for violating a
person’s constitutional rights, even though the officer-agent is not.
McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1344–45 (11th Cir. 2007)
Adderley’s claims in Counts I, II, and IV clearly invoke the Constitution as their
basis. Based on the foregoing precedent, the United States’ sovereign immunity
mandates dismissal of Counts I, II, and IV.
Furthermore, Count V does not mention any basis for the excessive force claim.
However, such a claim typically arises under the Fourth Amendment. See Graham v.
Connor, 490 U.S. 386, 388 (1989); Manners v. Cannella, 891 F.3d 959, 973 (11th Cir. 2018).
Therefore, sovereign immunity also bars this claim.
II.

The Statute of Limitations and the Intentional Tort Exception Bar
Adderley’s FTCA Claims

The Federal Tort Claims Act (FTCA) in 28 U.S.C. § 1346(b) provides a limited
waiver of sovereign immunity for tort claims. Motta ex rel. A.M. v. United States, 717
F.3d 840, 843 (11th Cir. 2013). The statute confers on federal district courts exclusive
jurisdiction to hear claims against the United States for money damages “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.” 28 U.S.C. § 1346(b)(1).
Pursuant to the FTCA a “tort claim against the United States shall be forever
barred unless it is . . . begun within six months after the date of mailing, by certified or
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registered mail, of notice of final denial of the claim by the agency to which it was
presented.” 28 U.S.C. § 2401(b). In this case, TSA mailed its final notice denying
Adderley’s FTCA claim on December 29, 2016. Adderley thus secured six months,
until June 29, 2017, to file suit on his FTCA claim. Adderley commenced this action
on August 22, 2017, nearly two months after the deadline.
Adderley alleges he did not receive the final denial notice until February 23, 2017,
which the court accepts as true. Nonetheless, the statute provides six months from the
date of mailing, not the date of receipt, for commencement of an action, and courts
strictly apply this limitation period. See Maahs v. United States, 840 F.2d 863 (11th Cir.
1988); Carr v. Veterans Admin., 522 F.2d 1355, 1357 (5th Cir. 1975); Owens v. United States,
No. 2:08-CV-1198-VEH, 2009 WL 10703796, at *4-5 (N.D. Ala. Nov. 24, 2009).
Nevertheless, the equitable tolling doctrine applies to the six-month FTCA
limitation period. United States v. Kwai Fun Wong, 135 S.Ct. 1625, 1632-33 (2015). “As
a general matter, equitable tolling pauses the running of, or ‘tolls,’ a statute of limitations
when a litigant has pursued his rights diligently but some extraordinary circumstance
prevents him from bringing a timely action.” Lozano v. Montoya Alvarez, 572 U.S. 1, 134
S. Ct. 1224, 1231–32 (2014) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)
(“Generally, a litigant seeking equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.”)). Equitable tolling arises, for example,
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when a plaintiff files a defective pleading within a limitations period while actively
pursuing judicial remedies, or when an adversary’s misconduct induces or tricks a
plaintiff into allowing a filing deadline to expire. Irwin v. Dep’t of Veterans Affairs, 498
U.S. 89, 96 (1990).
The circumstances in this case do not warrant equitable tolling. Most critically,
Adderley did not diligently pursue his claim against the United States. As referenced
earlier, even though Adderley purportedly received TSA’s December 29, 2016, final
denial nearly two months after mailing on February 23, 2017, he still did not file suit
until August 22, 2017, nearly two months after his June 29, 2017, deadline. Therefore,
Adderley not only failed to file his suit by the June 29, 2017, deadline, he also failed to
file it even close to the deadline; he waited nearly two months to do so. These
circumstances do not indicate diligence in pursuit of rights, but failure to ascertain the
applicable limitations period. Furthermore, the purported delay in receipt occasioned
by international mailing does not constitute an “extraordinary circumstance” as such
circumstances did not appreciably bar his efforts to file suit. Therefore, the court finds
Adderley cannot rely upon equitable tolling to sustain his time-barred FTCA claims.
In addition to the barrier erected by the limitations period, the United States does
not waive sovereign immunity as to “[a]ny [FTCA] claim arising out of assault, battery,
false imprisonment, false arrest, malicious prosecution, [and] abuse of process . . . .”
28 U.S.C. § 2680(h). Importantly, § 2680(h)’s intentional torts exception is “not
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limited to the torts specifically named therein, but rather encompasses situations where
the underlying governmental conduct which constitutes an excepted cause of action is
essential to the plaintiff’s claim.” O’Ferrell v. United States, 253 F.3d 1257, 1266 (11th Cir.
2001) (quotation marks omitted).
Therefore, Adderley’s intentional tort claims against the United States and its
agencies -- excessive force, to the extent Adderley contends the claim is a common law
tort rather than a constitutional tort (Count V); outrage/intentional infliction of
emotional distress (Count VI); battery (Count VIII); assault (Count IX) -- do not
withstand this exception to the FTCA. Clearly, the FTCA expressly bars the assault
and battery claims, one fails to discern how a common law excessive force claim differs
from a battery claim, and the alleged, underlying battery is essential to Adderley’s
outrage claim.
III.

Adderley Cannot Obtain Declaratory and Injunctive Relief Against
the Federal Entities

Adderley seeks injunctive and declaratory relief against the United States, TSA,
and Duke in her official capacity. As an initial matter, the FTCA limits its remedies to
monetary relief for aggrieved litigants, so in addition to the other barriers reviewed
previously, the statute forecloses this remedy as to its claims. See 28 U.S.C. § 1346(b);
Hatahley v. United States, 351 U.S. 173 (1956) (Federal range agents could not be enjoined
as a form of relief under the FTCA)).
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As for injunctive relief regarding the constitutional tort claims, the Defendants
maintain Adderley does not qualify for injunctive relief because he has not
demonstrated a “‛sufficient likelihood that he will be affected by the allegedly unlawful
conduct in the future.’” Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1328-29 (11th
Cir. 2013) (citation omitted); see also Strickland v. Alexander, 772 F.3d 876, 883 (11th Cir.
2014) (a plaintiff seeking prospective injunctive relief must “allege facts from which it
appears there is a substantial likelihood that he will suffer injury in the future.”)).
However, Adderley detailed a subsequent interaction with TSA agents at the same
checkpoint, and he filed another administrative complaint about the alleged, aggressive
search. (See Doc. 30 at 8; Doc. 30-1). Therefore, Adderley may have demonstrated a
substantial likelihood of future, unlawful conduct. However, Adderley fails in his
entreaty for injunctive relief because he did not plausibly portray such alleged conduct
arose from the Defendants at bar.
Although sovereign immunity principles prevent the provision of injunctive
relief against the United States, and by extension, its agency TSA, 4 there exists no
dispute an aggrieved plaintiff may obtain injunctive relief from federal officials:
It is true enough that we have long held that federal courts may in some
circumstances grant injunctive relief against state officers who are
violating, or planning to violate, federal law. . . . But that has been true
Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 687-88 (1949) (absent consent, sovereign
immunity precludes jurisdiction over suits against the United States).

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not only with respect to violations of federal law by state officials, but also
with respect to violations of federal law by federal officials. . . . What our
cases demonstrate is that, “in a proper case, relief may be given in a court
of equity . . . to prevent an injurious act by a public officer.” . . .
The ability to sue to enjoin unconstitutional actions by state and federal
officers is the creation of courts of equity, and reflects a long history of
judicial review of illegal executive action, tracing back to England.
Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015) (citations omitted). 5
However, to sustain Adderley’s request for injunctive relief the court need
conduct a “straightforward inquiry into whether [his] complaint alleges an ongoing
violation of federal law and seeks relief properly characterized as prospective.” Verizon
Maryland, Inc. v. Pub. Serv. Comm’n of Maryland, 535 U.S. 635, 645 (2002). And in
particular, he must plausibly aver an ongoing violation by the federal officials from
whom he seeks injunctive relief. See Larson v. Domestic & Foreign Commerce Corp., 337
U.S. 682, 689-90 (1949) (articulating only two instances in which injunctive relief against
a government officer would be appropriate, absent a statutory waiver of sovereign
immunity: (1) when the officer acts ultra vires, beyond or counter to her statutory
authority, or (2) when she engages in unconstitutional conduct by enforcing an

See also 14 Fed. Prac. & Proc. Juris. § 3655 (4th ed. 2018) (“The Supreme Court has recognized that a
federal court with subject matter jurisdiction may review Government wrongdoing in a lawsuit seeking
injunctive or declaratory relief against a federal officer, even when a statute does not authorize such
review. Suits under this theory are said to be seeking “nonstatutory review” . . . .) (citing, inter alia,
Califano v. Sanders, 430 U.S. 99, 107 & n.7 (1977) (legislative history to Administrative Procedure Act
notes availability of nonstatutory review of agency action); United States v. Fausto, 484 U.S. 439, 444
(1988) (Civil Service Reform Act replaced for federal, civil service employees “the various forms of
action traditionally used for so-called nonstatutory review of agency action”)).
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5

unconstitutional statute or policy); c.f. Iqbal, 556 U.S. at 677 (“Absent vicarious liability,
each Government official, his or her title notwithstanding, is only liable for his or her
own misconduct.”).
As portended, Adderley does not satisfy these requirements here. He has not
plausibly pleaded any ultra vires acts perpetrated by any federal official remaining in this
action, and likewise he has not identified any unconstitutional policy or statute enforced
or promulgated by such officials. Rather, Adderley avers that a TSA agent performed
an unconstitutional search, and subsequent to filing suit he sought and obtained
dismissal of that agent. In these circumstances, Adderley cannot obtain injunctive
relief against other federal officials regarding whom he has not averred any ongoing
violations with well-pleaded facts.
The same result manifests for Adderley’s request for declaratory relief. The
Declaratory Judgment Act provides that in the “case of [an] actual controversy within
its jurisdiction . . . any court of the United States, upon the filing of an appropriate
pleading, may declare the rights and other legal relations of any interested party seeking
such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201.
An “actual controversy” exists where there is “a substantial continuing controversy
between parties having adverse legal interests.” Emory v. Peeler, 756 F.2d 1547, 1552
(11th Cir. 1985). Moreover, “the continuing controversy may not be conjectural,
hypothetical, or contingent; it must be real and immediate, and create a definite, rather
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than speculative threat of future injury.” Malowney v. Fed. Collection Deposit Grp., 193
F.3d 1342, 1347 (11th Cir. 1999) (quotation omitted). “The remote possibility that a
future injury may happen is not sufficient to satisfy the ‘actual controversy’ requirement
for declaratory judgments.”

Id. (quotation omitted).

A district court maintains

discretion “whether and when to entertain an action under the Declaratory Judgment
Act.” Wilton v. Seven Falls Co., 515 U.S. 277, 282 (1995).
Pursuant to the foregoing standards, Adderley may not obtain declaratory relief
from the remaining Defendants. There exists no actual controversy between Adderley
and the Defendants because there exists no substantial continuing controversy between
them demonstrating a speculative threat of future injury. Adderley has not plausibly
averred, with well-pleaded facts, any continuing, unconstitutional violation by the
Defendants, and thus, his entreaty fails in this regard as well.
CONCLUSION
Based on the foregoing analysis, the court GRANTS the motion to dismiss and
DISMISSES this action WITH PREJUDICE. The court will enter a separate order
in conformity with this Memorandum Opinion.
DONE this 10th day of August, 2018.

____________________________________
HERMAN N. JOHNSON, JR.
UNITED STATES MAGISTRATE JUDGE
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