BUNCH v. FRANK et al

Filing 59

ENTRY ON UNITED STATES OF AMERICA'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT: This cause is before the Court on the United States of America's Motion to Dismiss or, in the alternative, Motion for Summary Judgment (Dkt. No. 13 in Cause No. 1:15-cv-160-RLY-TAB (S.D. Ind. Filed Feb. 5, 2015)). Accordingly, the motion to dismiss is DENIED, and the Court hereby gives notice to Bunch that it will be considering the United States' alternative mo tion for summary judgment. As requested, the Court will allow Bunch time to conduct limited discovery into this issue and to properly respond. Accordingly, the parties are ORDERED to confer with each other and file a notice with the Court within fourteen days outlining an agreed-upon timeframe to conduct the necessary discovery and a suggested briefing schedule. If the parties cannot agree, they should request a conference with Magistrate Judge LaRue. The consolidated case re mains STAYED pending a ruling on the United States' motion. As such, the Court expects the parties to work together in an expeditious manner ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 6/29/2015.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KRISTINE BUNCH,
Plaintiff,
vs.
BRYAN FRANK, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Cause No. 1:14-cv-438-WTL-DKL

ENTRY ON UNITED STATES OF AMERICA’S MOTION TO DISMISS OR, IN THE
ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT
This cause is before the Court on the United States of America’s Motion to Dismiss or, in
the alternative, Motion for Summary Judgment (Dkt. No. 13 in Cause No. 1:15-cv-160-RLYTAB (S.D. Ind. Filed Feb. 5, 2015)). 1 The motion is fully briefed and the Court rules as follows.
I.

FACTUAL BACKGROUND

The facts as alleged in Bunch’s Complaint (Dkt. No. 1 in Cause No. 1:15-cv-160-RLYTAB) are as follow.
Bunch’s Greensburg, Indiana mobile home caught fire in the early morning hours of June
30, 1995, killing her three-year-old son, Anthony. An investigation into the cause of the fire
soon ensued. Indiana Fire Marshal investigators Bryan Frank and James Skaggs gathered
evidence from Ms. Bunch’s home and quickly concluded that “the fire was deliberately set, that
accelerants had been used to cause the fire, that there were ‘pour patterns’ in the burned out
home where accelerants had been poured, and that the fire had started in two separate locations,
one of which was the bedroom in which Anthony was sleeping.” Compl. ¶ 8.

1

Cause No. 1:15-cv-160-RLY-TAB was consolidated with the present cause on June 23,
2015. See Dkt. No. 58.

In support of their theory, Frank and Skaggs sent the evidence to the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (“ATF”) to be tested. William Kinard, a forensic chemist
with the ATF, was assigned to the case. Kinard concluded that several samples, including those
from Anthony’s bedroom (Exhibit 8) and the living room (Exhibit 6), had no traces of Heavy
Petroleum Distillates (“HPDs”) or any other accelerants. He documented these findings in his
initial report and communicated them to Skaggs and Frank.
Because Kinard’s findings were inconsistent with Skaggs and Franks’ theory of the case,
they “caused Kinard’s report to be altered so that it falsely stated that accelerants were found in
exhibits 6 and 8,” Compl. ¶ 24, and “Kinard agreed to alter his report to state that accelerants
were found in exhibits 6 and 8, and concocted an ‘official’ report which falsely so stated.” Id. ¶
25. Kinard also agreed not to include his finding that the areas that tested positive for HPDs
were only “consistent with the presence of kerosene, for which there was an innocent
explanation”; rather his official report would state that “they were consistent with a much
broader array of HPDs[.]” Id. ¶ 26. Skaggs, Frank, and Kinard submitted only the “official”
report to the Decatur County State’s Attorney in July 1995.
In 1996, Bunch was convicted of murder and sentenced to sixty years in prison. In 2006,
Bunch filed a post conviction petition challenging her conviction. During the post conviction
proceedings,
it was first revealed that Kinard had prepared at least two reports that found no
HPDs in exhibits 6 and 8—the crucial evidence from the bedroom and the “pour
pattern” in the living room—and that Kinard had also determined that the HPDs
found in other parts of the home were consistent only with kerosene, not other
HPDs.
It also was revealed for the first time in the course of these proceedings that Kinard
had communicated his real findings to Skaggs and Frank, that these findings had
been suppressed, and that subsequently his official report had been altered and
fabricated to inculpate [Bunch].
2

Id. ¶¶ 38-39. The Indiana Court of Appeals reversed Bunch’s conviction on March 21, 2012,
finding that “the State’s failure to turn over a report from the ATF testing of floor samples
violates Brady[.]” Id. ¶ 41; see also Bunch v. State, 964 N.E.2d 274 (Ind. Ct. App. 2012).
Transfer to the Indiana Supreme Court was denied, and on December 17, 2012, all charges
against Bunch were dropped. In all, Bunch spent seventeen years in jail.
After filing her notice of claim, Bunch filed this suit against Kinard on February 5, 2015.
She brings two counts under the Federal Tort Claims Act (“FTCA”): 1) a claim for malicious
prosecution; and 2) a claim for intentional infliction of emotional distress (“IIED”). 2
II.

APPLICABLE STANDARD

The United States has moved to dismiss Bunch’s Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and 12(b)(6), for failure to state
a claim. While the United States takes the position that “the Court lacks subject matter
jurisdiction over a case in which Congress has not waived sovereign immunity,” it also
recognizes that the Seventh Circuit has rejected this position. See, e.g., United States v. Cnty. of
Cook, Ill., 167 F.3d 381, 389 (7th Cir. 1999) (“[W]hat sovereign immunity means is that relief
against the United States depends on a statute; the question is not the competence of the court to
render a binding judgment, but the propriety of interpreting a given statute to allow particular
relief.”). Thus, the Court will consider the motion as one to dismiss for failure to state a claim,
pursuant to Rule 12(b)(6).
In reviewing a Rule 12(b)(6) motion, the Court “must accept all well pled facts as true
and draw all permissible inferences in favor of the plaintiff.” Agnew v. National Collegiate

2

Bunch also filed a complaint against Skaggs and Frank alleging a due process violation,
malicious prosecution, and conspiracy to deprive her of her conditional rights. See Dkt. No. 1.
3

Athletic Ass’n, 683 F.3d 328, 334 (7th Cir. 2012). For a claim to survive a motion to dismiss for
failure to state a claim, it must provide the defendant with “fair notice of what the . . . claim is
and the grounds upon which it rests.” Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (quoting
Erickson v. Pardus, 551 U.S. 89, 93 (2007)) (omission in original). A complaint must “contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Agnew, 683 F.3d at 334 (citations omitted). A complaint’s factual allegations are plausible if
they “raise the right to relief above the speculative level.” Bell Atlantic Corp v. Twombly, 550
U.S. 544, 556 (2007).
III.

DISCUSSION

The United States moves to dismiss Bunch’s claims, arguing that “they are barred by the
intentional torts exception to the FTCA, 28 U.S.C. § 2680(h).” Def.’s Br. at 5.
The FTCA was designed primarily to remove the sovereign immunity of the United
States from suits in tort. The Act gives federal district courts exclusive jurisdiction
over claims against the United States for “injury or loss of property, or personal
injury or death caused by the negligent or wrongful act or omission” of a federal
employee “acting within the scope of his office or employment.” 28 U.S.C. §
1346(b)(1). This broad waiver of sovereign immunity is subject to a number of
exceptions set forth in § 2680. One such exception, relating to intentional torts,
preserves the Government’s immunity from suit for “[a]ny claim arising out of
assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or interference with contract
rights.” § 2680(h). We have referred to § 2680(h) as the “intentional tort
exception.”
Millbrook v. United States, 133 S. Ct. 1441, 1442 (2013) (internal citations and quotation marks
omitted).
Bunch recognizes that “her allegations set forth intentional wrongdoing” but disagrees
that the intentional tort exception applies, arguing that “the FTCA specifically waives sovereign
immunity for intentional ‘acts or omissions of investigative or law enforcement officers of the
United States Government.’” Pl.’s Resp. at 6.
4

In 1974, Congress carved out an exception to § 2680(h)’s preservation of the United
States’ sovereign immunity for intentional torts by adding a proviso covering
claims that arise out of the wrongful conduct of law enforcement officers. Known
as the “law enforcement proviso,” this provision extends the waiver of sovereign
immunity to claims for six intentional torts, including assault and battery, that are
based on the “acts or omissions of investigative or law enforcement officers.” §
2680(h). The proviso defines “investigative or law enforcement officer” to mean
“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.” Id.
Id. Thus, the United States’ motion boils down to whether Kinard, a forensic chemist with the
ATF, is an “investigative or law enforcement officer.” The United States argues he is not; Bunch
argues he is.
As explained above, an “investigative or law enforcement officer” is defined by statute as
“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). Bunch alleges
in her Complaint that “[a]s an ATF forensic chemist, Kinard was empowered by law to execute
searches and to seize evidence.” Compl. ¶ 14. Moreover, Bunch argues that Kinard “was tasked
with executing a forensic search of items recovered from [Bunch’s] mobile home, to determine
whether that search would reveal chemicals that would assist in the criminal prosecution of
[Bunch]. This clearly constituted a search.” Pl.’s Resp. at 8.
The United States argues that
Bunch does not address the fact that Kinard was not authorized by law to make
arrests or seize evidence on behalf of the ATF (see 18 U.S.C. § 3051 (granting these
powers to ATF “Special Agents”)), but argues that he was “executing a forensic
search,” which falls within the proviso. Plaintiff’s argument thus ignores Kinard’s
status (or lack thereof) within the ATF, which is contrary to the statute and Supreme
Court precedent.
Def.’s Reply at 8. Indeed, in Millbrook, the Supreme Court explained that the law enforcement
proviso
focuses on the status of persons whose conduct may be actionable, not the types of
activities that may give rise to a tort claim against the United States. The proviso
5

thus distinguishes between the acts for which immunity is waived (e.g., assault and
battery), and the class of persons whose acts may give rise to an actionable FTCA
claim. The plain text confirms that Congress intended immunity determinations to
depend on a federal officer’s legal authority, not on a particular exercise of that
authority.
Millbrook, 133 S. Ct. at 1445. In this vein, the United States notes the following:
Kinard was not empowered by statute or by the ATF to execute searches, to seize
evidence, or to make arrests. 28 U.S.C. § 2680(h). As a chemist, his job involved
analyzing forensic evidence in a laboratory in Maryland; he was not empowered to
carry a firearm, serve warrants or subpoenas, make arrests or otherwise enforce
federal law. See 18 U.S.C. § 3051 (granting these powers to ATF “Special
Agents”); Def.’s Ex. 2 (Boykin Decl.). . . . His authority was limited to “assisting”
Special Agents in their investigations. Def.’s Ex. 2.
Def.’s Reply at 9-10.
It appears to the Court, therefore, that the question is not whether Kinard was conducting
a “search” at the time of the alleged wrongdoing, 3 but rather, whether he had the legal authority
to do so. In claiming he did not, the United States relies on an affidavit from Lisa Boykin, Chief
of the Human Resources Operation Division of the ATF. Boykin’s affidavit asserts that at all
times relevant to issues in this case, Kinard was employed as a “Chemist” with the ATF. Dkt.
No. 13-2 ¶ 4. As such, his duties were as follow:
serving as an ATF technical authority in the analysis of forensic evidence from the
criminal investigation of gunshot residue, bombings and/or arsons; assisting
Special Agents in major crime scene investigations involving gunshot residue and
firearms incidents; serving as a subject area expert in one or more specialized areas
such as the identification of explosive residue, fire debris, or trace evidence (i.e.,
fibers, hairs, soil, glass, etc.); and providing court testimony on the basis of
laboratory examinations.
3

The Court does not find persuasive Bunch’s argument that—regardless of his legal
authority to do so—Kinard was conducting a “search” in analyzing the evidence collected from
her home. It appears to the Court that the trend has been to narrowly define what constitutes a
“search” for purposes of determining whether a person falls into the law enforcement proviso.
See, e.g., Pellegrino v. United v. U.S. Transp. Sec. Admin., Civil Action No. 09-5505, 2014 WL
1489939 (E.D. Pa. Apr. 16, 2014) (finding that while Transportation Security Officer “are
authorized to ‘execute searches’ in the colloquial sense of the term” they nevertheless were “not
encompassed in the law enforcement proviso of § 2680(h)”).
6

Id. ¶ 5. Boykin further asserts that
the job duties and responsibilities of a Chemist do not include the duty to enforce
any of the criminal, seizure, or forfeiture provisions of the laws of the United States,
or the authority to carry firearms, serve warrants and subpoenas issued under the
authority of the United States, make arrests, or make seizures of property subject to
forfeiture of the United States.
Id. ¶ 6.
It appears clear to the Court that this issue cannot be resolved on the pleadings alone;
rather, evidence is needed to determine the contours of Kinard’s job with the ATF in order to
determine whether the law enforcement proviso applies in this case. 4 Accordingly, the motion to
dismiss is DENIED, and the Court hereby gives notice to Bunch that it will be considering the
United States’ alternative motion for summary judgment. See Santana v. Cook Cnty. Bd. of
Review, 679 F.3d 614, 619 (7th Cir. 2012) (noting that “consideration of outside matter without
converting [a] motion [to dismiss] may result in reversible error”). As requested, the Court will
allow Bunch time to conduct limited discovery into this issue and to properly respond. 5
Accordingly, the parties are ORDERED to confer with each other and file a notice
with the Court within fourteen days outlining an agreed-upon timeframe to conduct the
necessary discovery and a suggested briefing schedule. If the parties cannot agree, they
should request a conference with Magistrate Judge LaRue. The consolidated case remains

4

The Court notes that the United States raises an additional argument regarding Bunch’s
IIED claim, that it is barred by the statute of limitations. Bunch disputes this; however, the Court
will reserve addressing this argument until the threshold issue is determined. See Pl.’s Resp. at 9
(conceding that “her IIED claim arises out of her claim for malicious prosecution against ATF
chemist William Kinard”).
5
The Court agrees with the United States that discovery to “identify communications,
interactions and contact with the Indiana State Fire Marshals,” and “to determine precisely how
Kinard’s original exculpatory report was altered into the false report ultimately disclosed to the
prosecutor” are not necessary to determine this preliminary issue. See Dkt. No. 19-1.
7

STAYED pending a ruling on the United States’ motion. As such, the Court expects the
parties to work together in an expeditious manner.
SO ORDERED: 6/29/15
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic notification

8