Devine v. United States

Filing 50

ORDER granting the Government's 35 Motion to Dismiss. Plaintiff's case is dismissed and this case is closed. Signed by Chief Judge J. Randal Hall on 09/10/2020. (jlh)

Case 1:18-cv-00195-JRH-BKE Document 50 Filed 09/10/20 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

CLIFFORD DEVINE,

*
*

Plaintiff,

*
*

V.

*

CV 118-195

*

UNITED STATES,

*

Defendant

*

*

ORDER

Before the Court is Defendant United States' (''Government")

motion to dismiss.

(Doc. 35.)

For the following reasons, the

motion is GRANTED.

I. BACKGROUND

Plaintiff

Clifford

Devine

("Plaintiff")

worked

as

a

contractor for an office machine repair company located outside of

the Fort Gordon military base ("Fort Gordon").
Doc. 34, SI 8; see id. SISI 5-6.)

(Amended Compl.,

When an office within Fort Gordon

needed a machine repaired. Plaintiff s employer would send an agent
who would have to check in with the guards at the gate and, "with

the approval and at the direction of the guards at the gate,"
proceed to the office in need of machine repair.

(Id. SI 11.)

On

June 17, 2015, Plaintiff was sent to Fort Gordon to repair office

machinery.

(Id. SI 13; see id. SISI 11, 14.)

gate, presented

his paper!]work to a

He "arrived at the

guard about going to a

Case 1:18-cv-00195-JRH-BKE Document 50 Filed 09/10/20 Page 2 of 14

building for a repair," then, with no warning, the gate guard ^^sent
[Plaintiff] on into the base to do the computer repairs."

(Id.

SISI 31, 32.)
At the time Plaintiff entered Fort Gordon, ^^the United States

Army and/or Federal security police" were executing ''a ^terrorist
on base drill'" (^'Drill").

(I^ SISI 14, 31.)

pre-planned."

The rules were that "[o]ne or more

(Id. SI 17.)

''The [Djrill was

agents of the [G]overnment would play the role of the [Djrill
terrorists and

would be outside of the locked down buildings";

"[ojther agents of the [Gjovernment would play the role [of] law
enforcement officers roaming around the property of [Fort Gordon],

outside of the buildings to catch the terrorist suspect"; and

"Army, and other military and civilian personnel working inside
buildings, would be told to stay locked indoors, and not allow
others to enter."

(Id. SI 16.)

"Under the rules of the [D]rill[,]

therefore[,] anyone who was outside and was not a law enforcement
officer was . . . suspected of being one of the terrorists under
the [D]rill.
" (I^ SI 22.)

According to Plaintiff, "[t]he agents of the United States

planning the [Djrill^ knew they had a duty to inform the public
about the [Djrill and prevent a member of the public who is not

part of the base from becoming an unwitting target of the [Djrill
and subject to arrest or detention."

(Id. SI 19.)

Further, "the

^ The Court refers to those who planned the drill as the "leadership planning
the Drill."

Case 1:18-cv-00195-JRH-BKE Document 50 Filed 09/10/20 Page 3 of 14

guards running th[e] gates should have been made aware of the date
and

time

of the

[D]rill[] and

been

instructed to prevent any

civilian from going to an appointment [during] the [DJrill so the
civilian would not become an unwitting mistaken participant in the
[DJrill."

SI 21.)

Unbeknownst to Plaintiff, the
entered Fort Gordon.

Drill was

(Id. SISI 30-33.)

underway when

he

Plaintiff arrived at the

building needing machinery repair and a man came to the door. (Id.
SI 41.)

Attempting to gain entry. Plaintiff ''showed him his

paperwork and credentials" "but because of the [Drill], the man
did not let [Plaintiff] enter."

(Id. SI 42.)

Plaintiff then

approached an adjacent building and spoke to a man therein who
told Plaintiff there was someone next door.

(Id. SISI 44, 48.)

"When [Plaintiff] was either leaving or attempting to enter

a building, he was seen by one or more of the agents of the

[GJovernment playing the role of officers as part of the [DJrill."^
(Id. SI 49.) "By the rules of the [DJrill, because [Plaintiff] was
outside,

he

terrorist."

was

suspect

and

suspected

of

(Id. SI 50; see also id. SI 52.)

being

the

[DJrill

Plaintiff tried to

inform the agents of the reason for his visit "and to otherwise

verify that he had authority to be there." (Id. SI 51.)

Plaintiff

"had nothing in his hands that could reasonably be interpreted to
be a weapon."

(Id. SI 56.)

But Plaintiff "was treated as if the

2 The Court refers to these agents as the "arresting personnel.
3

Case 1:18-cv-00195-JRH-BKE Document 50 Filed 09/10/20 Page 4 of 14

officers did not know how to handle this situation and thought he

might be part of the [D]rill." (I^ SI 57.) The ^Mo]fficers cuffed
[Plaintiff] and held him in cuffs for a period [of time]."^
SI 59.)

(Id.

''After watching an officer make phone calls, a decision

was made to take the cuffs off and have [Plaintiff] drive off the

base." (Id. SI 60.)

Plaintiff never fulfilled his contract.

(Id.

SI 62.)

On November 7, 2018, Plaintiff brought the present action.

(See generally Compl., Doc. 1.)

The Court allowed Plaintiff an

opportunity to amend his complaint on January 7, 2020, and
Plaintiff filed his Amended Complaint.

Compl.)

Thereafter, the Government filed the present motion to

dismiss the Amended Complaint.

35.)

(Order, Doc. 30; Amended

(Gov't's Mot. to Dismiss, Doc.

Plaintiff responded (Pl.'s Resp. Opp'n Mot. to Dismiss, Doc.

44), the Government replied (Gov't's Reply Supp. Mot. to Dismiss,
Doc. 46), and Plaintiff sur-replied (Pl.'s Sur-Reply Opp'n Mot. to

Dismiss,

Doc. 47).

The Government's motion is now

ripe for

consideration.

II.

LEGAL STANDARD

If the Government is entitled to sovereign immunity as to a

claim, the Court lacks subject matter jurisdiction over that claim
and dismissal is appropriate under Federal Rule of Civil Procedure

3 Plaintiff provides that the period of time "will be shown by a video
(Amended Compl., 5 59.)
4

Case 1:18-cv-00195-JRH-BKE Document 50 Filed 09/10/20 Page 5 of 14

12(b)(1). See Bennett v. United States, 102 F.3d 486, 488 n.l (1996).
A motion to dismiss for lack of subject matter jurisdiction under

Rule 12(b)(1) may be either a '"facial" or "factual" attack.

Morrison

V. Amway Corp., 323 F.3d 920, 924-25, 924 n.5 (11th Cir. 2003).

The

Government's motion, as related to immunity, is a facial attack on

the Amended Complaint because the Court's resolution of the immunity
question does not depend on adjudicating the merits of the case.
Douglas v. United States, 814 F.3d 1268, 1275 (11th Cir. 2016).

See
In

a facial attack on subject matter jurisdiction, the complaint's

allegations are deemed presumptively truthful, and "[t]he court is
required 'merely to look and see if the plaintiff has sufficiently
alleged a basis of subject matter jurisdiction.'"

Stalley ex rel.

United States v. Orlando Reg'1 Healthcare Sys., Inc., 524 F.3d 1229,

1233 (11th Cir. 2008) (quoting Lawrence v. Dunbar, 919 F.2d 1525,
1529 (11th Cir. 1990))J

III. DISCUSSION

Plaintiff brings this suit under the Federal Tort Claims Act
("FTCA") alleging three counts against the Government: (1) False

imprisonment under O.C.G.A. § 51-7-20; (2) Breach of landowner's
duty to warn of dangerous conditions; and (3) Battery.^

(Amended

^ Because the Court finds it lacks subject matter jurisdiction over this action,
it declines to analyze the Government's motion to dismiss pursuant to Rule
12(b)(6).

5 To the extent Plaintiff mentions his Fourth Amendment rights, he does so only

as a challenge to the Government's assertion that its conduct was discretionary
and, thus, immune under the FTCA's discretionary duty exception to waiver at 28
U.S.C. § 2680(a). (Pl.'s Resp. Opp'n Mot. to Dismiss, at 6-7); see Rosas v.
Brock, 826 F.2d 1004, 1008 (11th Cir. 1987); Mancha v. Immigr. & Customs Enf't,
No. 1:06-CV-2650-TWT, 2009 WL 900800, at *4 (N.D. Ga. Mar. 31, 2009) (When "the
5

Case 1:18-cv-00195-JRH-BKE Document 50 Filed 09/10/20 Page 6 of 14

Compl., SISI 1, 64-81.)

The Government argues the Court lacks

subject matter jurisdiction over all Counts.
Dismiss, at 8-13, 14-15.)

(Gov't's Mot. to

For the following reasons, the Court

agrees.

A. Sovereign Immunity and the FTCA

The United States maintains sovereign immunity against suits

unless

it

immunity.

has

^'unequivocally

expressed" its

intent

to

waive

United States v. Nordic Vill., Inc., 503 U.S. 30, 33

(1992) (citation omitted). "The FTCA operates as a limited waiver
of the United States' sovereign immunity."
488 n.l (11th Cir. 1996).

Bennett, 102 F.3d at

Thus, when a tort claim is brought

against the United States, the court evaluates whether "the United
States may be held liable pursuant to the terms of the statute."
Id.

If the court is unable to find a waiver, the court lacks

subject matter jurisdiction to maintain the suit.

Id.

Starting with the text of the FTCA, it provides district
courts with:

[EJxclusive 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.

[G]overnment's conduct allegedly violate[s] [a] [p]laintiff's constitutional

rights[, that] means that the conduct was not discretionary.").
not bring a Fourth Amendment claim.
6

Plaintiff does

Case 1:18-cv-00195-JRH-BKE Document 50 Filed 09/10/20 Page 7 of 14

28

U.S.C. § 1346(b)(1).

waiver.

FTCA's

The

FTCA includes

See generally 28 U.S.C. § 2680.

waiver

language

exceptions to the

Acknowledging that the

is "sweeping," the

Supreme

"narrowly construed exceptions to [the] waiver[]."
503 U.S. at 34 (collecting cases).

Court

has

Nordic Vill.,

Nevertheless, the United

States' consent to be sued in the first place "must be construed

strictly in favor of the sovereign."

Id. (citations and internal

quotation marks omitted).

The Government does not dispute that the FTCA's general waiver

of immunity language applies.

(See Gov't's Mot. to Dismiss, at

4-5, 8-13, 14-15.) Instead, the Government believes two exceptions

apply thereby reestablishing its sovereign immunity protection:
(1) 28 U.S.C. § 2680(a), the "discretionary duty exception"; and
(2) 28 U.S.C. § 2680(h), which protects the Government from claims

arising out of, among others, battery and false imprisonment

against non-investigative or law enforcement officers.
8-13, 14-15.)

(Id. at 5,

For the following reasons. Section 2680(h) shields

the Government from Plaintiff's claims; thus, the Court declines

to decide the applicability of the discretionary duty exception.
B. Section 2680(h)

28 U.S.C. § 2680(h) provides a waiver exception for "[a]ny

claim arising out of . . . battery . . . [or] false imprisonment"
unless the claim is against an "investigative or law enforcement
officer of the United States Government."

In determining whether

Case 1:18-cv-00195-JRH-BKE Document 50 Filed 09/10/20 Page 8 of 14

this exception protects the Government, the Court breaks down
Plaintiff's claims into, first, the two enumerated torts: battery

and false imprisonment, and, second, the failure to warn claim
potentially ''arising out of" the enumerated torts.
1.

Enumerated Torts

The only group of actors that could potentially be considered

comprised of investigative or law enforcement officers is the
arresting personnel; therefore, the Court lacks jurisdiction over
claims that the gate guards or leadership planning the Drill are

liable for false imprisonment or battery.
arresting

personnel

are

not

Consequently, if the

investigative

or

law

enforcement

officers under the exception, the Court lacks jurisdiction over

Plaintiff s

false

imprisonment

and

battery

claims

in

their

entirety.

"'[I]nvestigative

or

law

enforcement

officer'

means

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."

omitted).

28

U.S.C.

Plaintiff

§ 2680(h)

alleges

the

(internal

arresting

quotation

personnel

"play[ing] the role [of] law enforcement officers."

Compl., SI 16; see also id. SISI 23, 25, 26, 49.)

marks

were

(Amended

The question, then,

is whether those individuals allegedly playing the role of law
enforcement officers takes them to the level of a law enforcement

officer within the meaning of Section 2680(h).

Case 1:18-cv-00195-JRH-BKE Document 50 Filed 09/10/20 Page 9 of 14

The

Fifth

Circuit case,

address this question head on.

Cross

v.

United

States, seems to

159 F. App'x 572 (5th Cir. 2005).

In Cross, military police were ''involved in a training exercise in
which they were securing the [base] from notional terrorists."
Id. at 576.

During the training, they stopped the plaintiff

"mistakenly th[inking] that she was a participant in [the] military

training exercise" and ordered the plaintiff out of the car, which
she refused to do.

Id. at 573-74.

"After a

short period of

questioning, the soldiers determined [the plaintiff] was not part
of the training exercise and released her."

Id. at 574.

The

district court held that "it had no jurisdiction over the false

imprisonment or assault claims," id.; the Fifth Circuit affirmed
because when the individuals stopped the plaintiff, "they were

acting in a security capacity," and "security is a combat and not
investigative function," id. at 576.

Here, the Amended Complaint provides that "[b]y the rules of
the [D]rill" Plaintiff "was suspect and suspected of being the
[D]rill terrorist" "because [he] was outside." Plaintiff is clear

in his allegations that he "was stopped because of the [D]rill"
and "treated as if the officers did not know how to handle this

situation and thought he might be part of the [D]rill."®

(Amended

6 Although Plaintiff points to the Government's briefed arguments attempting to
show the arresting personnel believed he
was committing a crime,
Plaintiff - having already been afforded an opportunity to amend his
complaint — makes no such allegation.
(Pl.'s Resp. Opp'n Mot. to Dismiss, at
3-4, 11; see also Gov't's Reply Supp, Mot. to Dismiss, at 11.)

In fact,
Plaintiff alleges, "[t]here [was] no evidence known to the officers before the
stop or that was provided to the officers by others before the stop that

Case 1:18-cv-00195-JRH-BKE Document 50 Filed 09/10/20 Page 10 of 14

Compl., ^ 53.)

After realizing Plaintiff was not part of the

Drill, they decided to release Plaintiff and have him drive off
the base; at that point, "[o]ne of the officers told him he had
been involve[ed] in a training ^exercise.'"

(Id. SI 61.)

Plaintiff attempts to distinguish Cross because the arresting

personnel here ''investigated" whether Plaintiff was part of the
Drill.

(Pl.'s Resp. Opp'n Mot. to Dismiss, at 3-4.)

In Cross,

however, the officers detained Plaintiff while they determined

whether she was part of the training exercise.

And, as Plaintiff

quotes, "'investigate' must be given its normal meaning (akin to
that when it is employed in such terms as 'private investigator'),

not just the generic sense that [the plaintiff] suggests — that of

simply looking into and thinking about something in the process of
reaching a decision."

(Id. at 5 (quoting Emps. Ins. of Wausau v.

United States, 815 F. Supp. 255, 259 (N.D. 111. 1993)).)

Further,

Plaintiff contrasts Cross because the plaintiff there was stopped
at the border of the training zone apparently to claim that any

security or "military function ended at the border of the Fort and
gate when [Plaintiff] was given permission to enter." (Id. at 3.)
But the Court sees no reason why area security can only occur at

[Plaintiff] had committed or was committing a crime, nor was their articulable

suspicion that [Plaintiff] had or was in the process of committing a crime."
{Amended Compl., SI 54.) In its sur-reply. Plaintiff continues, "Inferring and
implying [Plaintiff] violated the law runs contrary to the undisputed fact they
let him go after they relalized] a mistake had been made in the operation of
the [D]rill." (Pl.'s Sur-Reply Opp'n Mot. to Dismiss, at 2.) Further, Plaintiff
provides, "By the facts affirmatively pleaded, . . . the cause of the stop,
arrest[,] and investigation was the [D]rill."
10

(Id. at 4.)

Case 1:18-cv-00195-JRH-BKE Document 50 Filed 09/10/20 Page 11 of 14

a training site's border.

Thus, the Court finds no claim that

takes the arresting personnel's actions from security during a

training exercise to an investigation by law enforcement.

The

Government has not waived its sovereign immunity as to Plaintiff s

false

imprisonment

and

battery

claims,

and

the

Court

lacks

Plaintiff's

false

jurisdiction thereover.
2. Claim Arising out of Enumerated Torts

Having

found

Section

2680(h)

prevents

imprisonment and battery claims against the Government, the Court
now determines whether the Government is immune from Plaintiff s

failure to warn claim.^

A claim may fall within the purview of

Section 2680(h) even when it is not among the enumerated claims.
Metz V. United States, 788 F.2d 1528, 1532-34 (11th Cir. 1986);
see also Burns v. United States, 809 F. App'x 696, 701 (11th Cir.

2020).

This is so ''because [Section] 2680(h) bars any claim

'arising out of [the enumerated torts]."

Reed v. U.S. Postal

Serv., 288 F. App'x 638, 639-40 (11th Cir. 2008) (citing Metz, 788
F.2d at 1533).

Thus, Section 2680(h) "encompass[es] situations

where 'the underlying governmental conduct which constitutes an

excepted cause of action is "essential" to [the] plaintiff s
claim,'" Cadman v. United States, 541 F. App'x 911, 913 (11th Cir.

2013) (quoting Metz, 788 F.2d at 1534 (quoting Block v. Neal, 460

'Although not argued by either party, because this is a matter of the Court's
jurisdiction, the Court undertakes an analysis of whether Plaintiff's failure
to warn claim triggers Section 2680{h)'s exception.
11

Case 1:18-cv-00195-JRH-BKE Document 50 Filed 09/10/20 Page 12 of 14

U.S.

289,

297

(1983))), such

as

when

a

claim in ''negligence

underlies the [enumerated intentional tort]," United States v.

Shearer, 473 U.S. 52, 56 (1985).

For example, in Metz, because

the plaintiff's only injury was false arrest and false arrest is
barred

under

emotional

Section

distress

likewise barred.

2680(h),

and

his

intrusion

intentional

upon

788 F.2d at 1534-35.

infliction

seclusion

claims

of

were

"It is the substance of

the claim and not the language used in stating it which controls."

Reed, 288 F. App'x at 640 (quoting JBP Acquisitions, LP v. United
States ex rel. Fed. Deposit Ins. Corp., 224 F.3d 1260, 1264 (11th
Cir. 2000)).

Providing further

examples, courts have

found that the

following non-enumerated causes of action arose out of the excepted
torts: (1) "[Njegligent hiring, retention, and supervision claims

[that] ar[ose] out of [the plaintiff]'s alleged sexual abuse,"
Lindsey v. Jackson, No. 1:14—CV—789—ODE—LTW, 2014 WL 12743785, at
*4 (N.D. Ga. Dec. 22, 2014); (2) Claims for negligent supervision
and failure to warn based on a battery committed by a Government

employee, Shearer, 473 U.S. at 54-55, 56-57; (3) A negligent hiring
claim based on an assault and a battery. Reed, 288 F. App'x at

640; and (4) False light and invasion of privacy claims based on

defamatory statements,® 0'Ferrell v. United States, 253 F.3d 1257,
1265-66 (11th Cir. 2001).

® Libel and slander are enumerated in Section 2680(h).
12

28 U.S.C. § 2680(h)

Case 1:18-cv-00195-JRH-BKE Document 50 Filed 09/10/20 Page 13 of 14

Here, Plaintiff claims that because the Government failed to

warn him of the Drill dangers, which

were "that he might be

arrested pursuant to the rules of the [D]rill" (Amended Compl.,
1 72),

he

Plaintiff's

was

subject

failure

to

to

false

imprisonment

warn

claim

plausibly

and

battery.

alleges

improper

planning and communication actions apart from the allegations
supporting his false imprisonment and battery claims.
73.)

(Id. SISl 71-

The injuries Plaintiff alleges, however, were the offensive

handcuffing and wrongful detention.

(Id. "3ISI 74-76.)

As such, any

injury Plaintiff suffered as a result of the Government's failure
to warn stems from the alleged false imprisonment and battery.
Plaintiff s

failure

to

warn

claim

imprisonment and battery claims.
found

Plaintiff

enforcement

does

officer.

not

accuse

Section

arises

out

of

his

false

Because the Court previously
any

2680(h)

investigative

returns

the

or

law

Government's

immunity.

IV.

CONCLUSION

For the foregoing reasons, the Court GRANTS the Government's
motion

to

dismiss.

(Doc.

35.)

Plaintiff's case is DISMISSED.

IT

IS

HEREBY

ORDERED

that

The Clerk is DIRECTED to terminate

all pending motions and deadlines, if any, and CLOSE this case.

13

Case 1:18-cv-00195-JRH-BKE Document 50 Filed 09/10/20 Page 14 of 14

ORDER ENTERED at Augusta, Georgia, this /6^^ day of
September, 2020.

J.

hall/CHIEF JUDGE

UNITEP^TATES DISTRICT COURT
^HERN DISTRICT OF GEORGIA

14