Ford v. United States of America et al
OPINION AND ORDER granting Defendant United States of America's Motion to Dismiss 6 and dismissing with prejudice Plaintiff's claims against Defendant United States of America. It is further ordered that Plaintiff's claims against De fendants John S. Davis, Janis C. Gordon, Elizabeth M. Hathway, Candiss Leigh Howard, Gary Scott Hulsey, William H. Thomas, Jr., Ron Geer, and Other Unknown Agents, are dismissed without prejudice. Signed by Judge William S. Duffey, Jr on 10/4/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
UNITED STATES OF AMERICA,
JOHN S. DAVIS, JANIS C.
GORDON, ELIZABETH M.
HATHWAY, CANDISS LEIGH
HOWARD, GARY SCOTT
HULSEY, WILLIAM H. THOMAS,
JR., RON GEER, AND OTHER
OPINION AND ORDER
This matter is before the Court on Defendant United States of America’s
(“United States”) Motion to Dismiss .
On September 1, 1992, Plaintiff Warren Ford (“Plaintiff”) was convicted,
in the Northern District of Georgia, “of various drug and firearm charges.”
(Compl. ¶ 2). On September 23, 1992, the trial court granted Plaintiff’s motions
for judgment of acquittal and a new trial. (Compl. ¶ 2). On October 29, 1992,
following a second jury trial, Plaintiff was convicted of the same offenses for
which he was initially tried. (Compl. ¶ 3). Plaintiff was sentenced to 260 months
imprisonment, followed by a period of supervised release. (Compl. ¶¶ 6-7). In
January 2011, Plaintiff was released from prison. (Compl. ¶ 11).
On January 30, 2017, Plaintiff filed his pro se Complaint  against the
United States and at least seven individual defendants (“Individual Defendants”),
all of whom allegedly were “involved in or witness[es] to” Plaintiff’s injuries.
([1.1] ¶ 13). Plaintiff seeks damages “for personal injuries arising from
AUSA John S. Davis were [sic] grossly negligent and who investigated, caused
[Plaintiff] to be retried” after his post-trial motions were granted. (Compl. at 1-2).
Plaintiff asserts claims for false imprisonment, intentional infliction of emotional
distress, and violations of the Fourth, Fifth, Eighth and Fourteenth Amendments.
(Compl. at 2). Plaintiff purports to brings these claims under 42 U.S.C. § 1983 and
the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (“FTCA”).
(Compl. at 1-2).
On June 8, 2017, the United States filed its Motion to Dismiss, arguing that
Plaintiff’s claims are barred by sovereign immunity and that the Court thus lacks
subject matter jurisdiction over this action. Plaintiff did not file a response, and the
United States’ Motion to Dismiss is deemed unopposed. See LR 7.1(B), NDGa.
The Individual Defendants have not entered appearances in this action.
THE UNITED STATES’ MOTION TO DISMISS
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). They possess only that power
authorized by the Constitution and conferred by Congress. Bender v. Williamsport
Area School Dist., 475 U.S. 534, 541 (1986). “If the court determines at any time
that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R.
Civ. P. 12(h)(3).
A motion to dismiss for lack of subject matter jurisdiction may be either a
“facial” or “factual” attack. Morrison v. Amway Corp., 323 F.3d 920, 924 n.5
(11th Cir. 2003). “‘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.” Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990).
“‘Factual attacks,’ on the other hand, challenge the existence of subject matter
jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings,
such as testimony and affidavits, are considered.” Id. In a factual attack, the
presumption of truthfulness afforded a plaintiff under Federal Rule of Civil
Procedure 12(b)(6) does not apply. Scarfo v. Ginsberg, 175 F.3d 957, 960-61
(11th Cir. 1999). “[T]he trial court is free to weigh the evidence and satisfy itself
as to the existence of its power to hear the case . . . . [T]he existence of disputed
material facts will not preclude the trial court from evaluating for itself the merits
of jurisdictional claims.” Lawrence, 919 F.2d at 1529. The plaintiff has the
burden to prove that jurisdiction exists. Elend v. Basham, 471 F.3d 1199, 1206
(11th Cir. 2006).
Plaintiff’s FTCA Claims
“[T]he United States, as sovereign, is immune from suit save as it consents
to be sued . . . , and the terms of its consent to be sued in any court define that
court’s jurisdiction to entertain the suit.” United States v. Mitchell, 445 U.S. 535,
538 (1980); see Block v. N. Dakota, 461 U.S. 273, 287 (1983) (“The basic rule of
federal sovereign immunity is that the United States cannot be sued at all without
the consent of Congress.”). “A waiver of the Federal Government’s sovereign
immunity must be unequivocally expressed in statutory text, and will not be
implied. Moreover, a waiver of the Government’s sovereign immunity will be
strictly construed, in terms of its scope, in favor of the sovereign.” Lane v. Pena,
518 U.S. 187, 192 (1996) (citations omitted). “If there is no specific waiver of
sovereign immunity as to a particular claim, the district court lacks subject matter
jurisdiction over the suit.” Lichtenberg v. Sec’y of the Navy, 627 F. App’x 916,
917 (11th Cir. 2015).
The FTCA provides a “limited waiver” of sovereign immunity, “making the
United States liable 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.’”
JBP Acquisitions, L.P. v. United States ex rel. FDIC, 224 F.3d 1260, 1263
(11th Cir. 2000) (quoting 28 U.S.C. § 1346(b)(1)). “This broad waiver of
sovereign immunity is subject to a number of exceptions set forth in § 2680,”
including the “intentional tort exception,” which “preserves the Government’s
immunity from suit for ‘any claim arising out of assault, battery,
false imprisonment, false arrest, malicious prosecution, abuse of process, libel,
slander, misrepresentation, deceit, or interference with contract rights.’”
Millbrook v. United States, 569 U.S. 50, 52 (2013) (quoting 28 U.S.C. § 2680(h)).
The FTCA’s general waiver of sovereign immunity applies, however, to claims
based on the conduct of “investigative or law enforcement officers of the United
States Government” where the claims arise out of “assault, battery,
false imprisonment, false arrest, abuse of process, or malicious prosecution.”
28 U.S.C. § 2680(h).
Plaintiff asserts a claim for “false imprisonment as an unlawful restraint on a
person’s liberty and freedom of movement in violation of 28 U.S.C. § 2680(h).”
(Compl. at 2). “The United States has waived sovereign immunity for claims of
[false imprisonment] only when the acts are committed by ‘investigative or law
enforcement officers of the United States Government.’” Zargari v. United States,
658 F. App’x 501, 508 (11th Cir. 2016) (quoting 28 U.S.C. § 2680(h)).
An “investigative or law enforcement officer” is “any officer of the United States
who is empowered by law to execute searches, to seize evidence, or to make
arrests for violations of Federal law.” 28 U.S.C. § 2680(h).
Plaintiff’s false imprisonment claim, under the FTCA, is barred by sovereign
immunity because Plaintiff has not shown that the individuals who caused his
injuries are “investigative or law enforcement officers of the United States
Government.” 28 U.S.C. § 2680(h). Plaintiff does not describe any of the
Individual Defendants other than Defendant John S. Davis, who apparently is an
Assistant United States Attorney (“AUSA”). (Compl. at 2). Defendants
Candiss Leigh Howard, Elizabeth M. Hathaway, Gary Scott Hulsey,
Janis S. Gordon, and William H. Thomas, Jr., also appear to be AUSAs who
entered appearances in Plaintiff’s criminal action. ( at 3-4).1 “[P]rosecutors do
not qualify as ‘investigative or law enforcement officer[s]’ within the meaning of
28 U.S.C. § 2680(h) as they are not empowered to execute searches, seize
evidence, or make arrests.” Bonilla v. United States, 652 F. App’x 885, 890
(11th Cir. 2016) (quoting 28 U.S.C. § 2680(h)). “Nor does the complaint allege
that [the Individual Defendants or any other alleged wrongdoer] performed any of
these functions. Accordingly, based on the allegations in this case, [the individuals
who caused Plaintiff’s injuries, including the Individual Defendants,] do not
qualify as . . . ‘investigative or law enforcement officer[s]” under the plain
meaning of § 2680(h), and sovereign immunity precludes FTCA liability arising
from [their] allegedly tortious conduct.” Id. To the extent Plaintiff asserts
constitutional tort claims under the FCTA, those claims also fail. See
F.D.I.C. v. Meyer, 510 U.S. 471, 478 (1994) (“[T]he United States simply has not
rendered itself liable under [the FTCA] for constitutional tort claims.”);
Hope v. Bureau of Prisons, 476 F. App’x 702, 705 (11th Cir. 2012)
(“[C]onstitutional tort claims may not be brought under the FTCA.”).
Plaintiff’s FTCA claims against the United States are dismissed.
Most of these individuals are former AUSAs.
Plaintiff’s Section 1983 and Bivens Claims
Plaintiff purports to assert several constitutional claims against the
United States under 42 U.S.C. § 1983. “By its plain language,” Section 1983
“does not authorize redress against the United States.” Grace Bus., Inc. v. United
States, No. 1:15-CV-2781-WSD, 2016 WL 8710409, at *8 n.8 (N.D. Ga. May 27,
2016); see Bernard v. Calejo, 17 F. Supp. 2d 1311, 1314 (S.D. Fla. 1998)
(“[S]ection 1983 does not contain an express waiver of sovereign immunity and
thus does not provide a cause of action against the United States.”);
Brown v. United States, No. 508-cv-118, 2009 WL 2044684, at *4 (M.D. Fla.
July 10, 2009) (same), aff’d, 439 F. App’x 772 (11th Cir. 2011).
Plaintiff’s Section 1983 claims against the United States are thus dismissed.
To the extent Plaintiff intends to assert Bivens claims against the
United States, those claims also require dismissal because “Bivens authorizes suits
against individual federal officials, not against the United States.”2
McCollum v. Bolger, 794 F.2d 602, 608 (11th Cir. 1986); see Valencia v. Dep’t of
Interior, Washington, DC, No. 3:08-CV-69-WKW, 2008 WL 4495694, at *15
In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971), the Supreme Court “established that the victims of a
constitutional violation by a federal agent have a right to recover damages
against the official in federal court despite the absence of any statute conferring
such a right.” Hartman v. Moore, 547 U.S. 250, 255 n.2 (2006) (emphasis added).
(M.D. Ala. Oct. 7, 2008) (“[T]he United States is immune to suit for damages
based on the Constitution under a Bivens’ theory.”); O’Ferrell v. United States,
968 F. Supp. 1519, 1542 (M.D. Ala. 1997), aff’d, 253 F.3d 1257 (11th Cir. 2001)
(“While the FTCA allows certain state law tort claims to be asserted against the
United States, there is no right of action against the United States for constitutional
violations.”); see also Gonzales-Corrales v. I.C.E., 522 F. App’x 619, 623
(11th Cir. 2013) (per curiam) (“[A] plaintiff may not bring a Bivens action against
a federal agency or a federal officer acting in his official capacity.”).
Plaintiff’s claims against the United States are barred by sovereign
immunity. The United States’ Motion to Dismiss is granted, and Plaintiff’s claims
against the United States are dismissed.
III. PLAINTIFF’S CLAIMS AGAINST THE INDIVIDUAL
The Court sua sponte considers whether Plaintiff has adequately served
process on the Individual Defendants in this case. Federal Rule of Civil
Procedure 4(m) requires plaintiffs to serve their complaint on each defendant
within ninety (90) days after the complaint is filed:
If a defendant is not served within 90 days after the complaint is filed,
the court—on motion or on its own after notice to the plaintiff—must
dismiss the action without prejudice against that defendant or order
that service be made within a specified time. But if the plaintiff
shows good cause for the failure, the court must extend the time for
service for an appropriate period.
Fed. R. Civ. P. 4(m). “Good cause” for insufficient service exists “only when
some outside factor, such as reliance on faulty advice, rather than inadvertence or
negligence, prevented service.” Lepone-Dempsey v. Carroll Cnty. Comm’rs,
476 F.3d 1277, 1281 (11th Cir. 2007). “Even in the absence of good cause,
a district court has the discretion to extend the time for service of process.” Id.
“Relief may be justified, for example, if the applicable statute of limitations would
bar the re-filed action, or if the defendant is evading service or conceals a defect in
attempted service.” Id. at 1282.
To serve a United States agency or corporation, or a United States
officer or employee sued only in an official capacity, a party must
serve the United States and also send a copy of the summons and of
the complaint by registered or certified mail to the agency,
corporation, officer, or employee.
Fed. R. Civ. P. 4(i)(2).
To serve a United States officer or employee sued in an individual
capacity for an act or omission occurring in connection with duties
performed on the United States’ behalf (whether or not the officer or
employee is also sued in an official capacity), a party must serve the
United States and also serve the officer or employee under
Rule 4(e), (f), or (g).
Fed. R. Civ. P. 4(i)(3). Rule 4(e) provides than an individual in the United States
may be served by:
(1) following state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the district court is
located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the
(B) leaving a copy of each at the individual’s dwelling or usual
place of abode with someone of suitable age and discretion who
resides there; or
(C) delivering a copy of each to an agent authorized by appointment
or by law to receive service of process.
Fed. R. Civ. P. 4(e).3
“Georgia’s law regarding service of process mirrors that of the federal
rules.” Ross v. Preston, No. 1:08-CV-1811-WSD, 2008 WL 11334499, at *2
(N.D. Ga. Oct. 29, 2008). Under Georgia law:
Service shall be made by delivering a copy of the summons attached
to a copy of the complaint . . . to the defendant personally, or by
leaving copies thereof at the defendant’s dwelling house or usual
place of abode with some person of suitable age and discretion then
Rules 4(f) and 4(g) describe the methods of service required for individuals
in a foreign country and “minor or incompetent” individuals. Nothing in the
record suggests that the Individual Defendants are minor, incompetent, or outside
of the United States.
residing therein, or by delivering a copy of the summons and
complaint to an agent authorized by appointment or by law to receive
service of process.
O.C.G.A. § 9-11-4(e)(7). “For service of process to be proper [on an alleged
agent of the defendant], the agent so served must be an actual, and not
simply an apparent, agent of the defendant.” Ross, 2008 WL 11334499,
at *3. “An agent thus is some person authorized to act for another arising
when, expressly or impliedly, there has been a delegation with more or less
discretionary power to act, to manage an affair, and to render an account.”
“Service of process that is not in ‘substantial compliance’ with the
requirements of the Federal Rules is ineffective to confer personal
jurisdiction over the defendant, even when a defendant has actual notice of
the filing of the suit.” Abele v. City of Brooksville, Fla., 273 Fed. App’x.
809, 811 (11th Cir. 2008); see Pardazi v. Cullman Med. Ctr., 896 F.2d 1313,
1317 (11th Cir. 1990) (“Service of process is a jurisdictional requirement:
a court lacks jurisdiction over the person of a defendant when that defendant
has not been served.”). A litigant’s pro se status does “not excuse mistakes
he makes regarding procedural rules,” including rules regarding service of
process. Nelson v. Barden, 145 Fed. App’x. 303, 311 (11th Cir. 2005)
(explaining that the court “never suggested that procedural rules in ordinary
civil litigation shall be interpreted so as to excuse mistakes by those who
proceed without counsel,” because “experience teaches that strict adherence
to the procedural requirements specified by the legislature is the best
guarantee of evenhanded administration of the law”); see Valiente v. Bank
of Am., No. 1:16-CV-1553-WSD, 2017 WL 65245, at *1-2 (N.D. Ga.
Jan. 6, 2017).
Plaintiff filed his Complaint on January 30, 2017. On June 9, 2017, the
Court found “Plaintiff ha[d] not filed proof of service on any of the named
defendants within the ninety-day period required by Rule 4(m)” of the Federal
Rules of Civil Procedure. ( at 2). The Court ordered Plaintiff to “file, on or
before June 30, 2017, proof that service was waived or effectuated on each
defendant.” ( at 2). The Court warned Plaintiff that, “[f]or each defendant that
Plaintiff fails to meet the service requirement, the defendant shall be dismissed
under Rule 4 of the Federal Rules of Civil Procedure.” ( at 2). On
June 28, 2017, Plaintiff filed “proof of service” documents, certifying that he
“served the summons on Jeff Sessions, Attorney General of the United States,
by certified mail.” ( at 1). Plaintiff also stated that he “served the summons on
John A. Horn U.S. Attorney for the Northern District of GA, by certified mail.”
( at 6). Plaintiff has not filed documents indicating that service was waived or
effectuated on any other individual or entity.
Plaintiff has not shown that he adequately served process on the
Individual Defendants, in violation of the Court’s June 9, 2017, Order. To the
extent Plaintiff asserts claims against the Individual Defendants in their official
capacity, Plaintiff has not shown that he “sen[t] a copy of the summons and of the
complaint by registered or certified mail to the . . . officer[s] or employee[s].”
Fed. R. Civ. P. 4(i)(2). To the extent Plaintiff asserts claims against the Individual
Defendants in their individual capacity, Plaintiff has not shown that he
(1) “deliver[ed] a copy of the summons and of the complaint to the individual[s]
personally,” (2) “le[ft] a copy of each [document] at the individual[s’] dwelling or
usual place of abode with someone of suitable age and discretion who resides
there,” or (3) “deliver[ed] a copy of each [document] to an agent authorized by
appointment or by law to receive service of process.” Fed. R. Civ. P. 4(e); see
O.C.G.A. § 9-11-4(e)(7). Plaintiff merely sent the summons to the
Attorney General of the United States and the United States Attorney in the
Northern District of Georgia. This does not constitute service of process on the
Individual Defendants. This case has been pending for eight months and Plaintiff
has not offered any explanation for his failure to serve the Individual Defendants or
sought an extension of time in which to perfect service. The Court previously
warned Plaintiff that his failure to adequately serve each Defendant would result in
dismissal. Plaintiff’s claims against the Individual Defendants are dismissed
without prejudice for insufficient service of process and for failure to comply with
the Court’s June 9, 2017, Order. See LR 41.3(A)(2), NDGa (permitting dismissal
for failure to comply with a lawful order of the court); Ogidi-Gbegbaje v. J.B. Hunt
Transport, Inc., No. 1:17-CV-9-WSD, 2017 WL 4385329, at *3 (N.D. Ga.
Oct. 3, 2017) (dismissing an action for insufficient service of process because,
although Plaintiff was previously notified that service was incomplete, “Plaintiff
still has not adequately served process on Defendant, has not shown good cause for
his failure to do so, has not submitted any evidence in opposition to Defendant's
Motion to Dismiss, and has not sought an extension of time in which to serve
Even if Plaintiff had adequately served the Individual Defendants, his claims
against them are frivolous and require dismissal. To the extent Plaintiff seeks
relief against the Individual Defendants in their official capacity, Plaintiff’s claims
fail for the same reason that his claims against the United States require dismissal.
See, e.g., Gonzales-Corrales v. I.C.E., 522 F. App’x 619, 623 (11th Cir. 2013) (per
curiam) (“[A] plaintiff may not bring a Bivens action against a federal agency or a
federal officer acting in his official capacity.”); Stark v. Holder, No. 3:14-CV2920-B, 2014 WL 5013742, at *4 (N.D. Tex. Oct. 7, 2014) (“The FTCA shields
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendant United States of America’s
Motion to Dismiss  is GRANTED and that Plaintiff’s claims against Defendant
United States of America are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff’s claims against Defendants
John S. Davis, Janis C. Gordon, Elizabeth M. Hathway, Candiss Leigh Howard,
Gary Scott Hulsey, William H. Thomas, Jr., Ron Geer, and Other Unknown
Agents, are DISMISSED WITHOUT PREJUDICE.
federal officers from official capacity suits because these types of suits are actually
against the government.”). To the extent Plaintiff seeks relief against the
Individual Defendants in their individual capacity, these claims also fail because
(1) the “[t]he United States is the only proper defendant in an FTCA action,”
Simpson v. Holder, 184 F. App’x 904, 908 (11th Cir. 2006); (2) Plaintiff’s
Section 1983 claims are not cognizable against federal officials, Abella v. Rubino,
63 F.3d 1063, 1065 (11th Cir. 1995); (3) the Individual Defendants, as federal
prosecutors, are “entitled to absolute immunity for all actions [they] take while
performing [their] function as an advocate for the government,” including
“the[ir] initiation and pursuit of criminal prosecution” Rowe v. City of Fort
Lauderdale, 279 F.3d 1271, 1279 (11th Cir. 2002); and (4) Plaintiff’s Bivens
claims are time-barred because he was allegedly wrongfully prosecuted and
convicted in 1992, sentenced in 1993, and released from prison in 2011, more than
two years before he filed his Complaint, Kelly v. Serna, 87 F.3d 1235, 1238 (11th
Cir. 1996) (“[W]e hold that the district court’s application of the Georgia two-year
personal injury limitations period to the Bivens claims in this case was correct.”).
SO ORDERED this 4th day of October, 2017.
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