Swidan et al v. United States of America et al

Filing 25

ORDER denying 13 Motion to Dismiss. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALBERT SWIDAN ET AL.,
Case No. 13-11634
Plaintiffs,
SENIOR UNITED STATES DISTRICT JUDGE
ARTHUR J. TARNOW

v.
UNITED STATES OF AMERICA ET AL.

MAGISTRATE JUDGE R. STEVEN WHALEN
Defendants.
/
ORDER DENYING DEFENDANTS’ MOTION TO DISMISS [13]
This case involves a law enforcement raid of Plaintiffs’ rental residence for
crimes to which Plaintiffs have no connection. Before the Court is the USA, FBI, and
DOJ’s Motion to Dismiss the Complaint [13], Plaintiffs’ Response [16], and
Defendants’ Reply [18]. Named Defendants now move to be dismissed from the case
entirely. Plaintiffs also complain against eight John Doe law enforcement officers
who are not a part of this Motion to Dismiss [13]. On November 8, 2013, the Court
heard argument on the motion. For the reasons that follow, in addition to the reasons
stated on the record, Defendants’ Motion to Dismiss [13] is DENIED without
prejudice.
I. Federal Tort Claims Act (FTCA); Counts I, III–VII
Defendants move, pursuant to FRCP 12(b)(1), arguing that this Court lacks
jurisdiction under the doctrine of sovereign immunity to consider Plaintiffs’ FTCA
claims.

Defendant USA argues that it has not waived sovereign immunity and therefore
this Court does not have jurisdiction to hear this case. Defendants also argue that they
are immune under the discretionary function and/or intentional torts exceptions to the
FTCA.
Claims against the United States under the FTCA lie only where the United
States has consented to be sued. United States v. Mitchell, 463 U.S. 206, 212 (1983).
The FTCA provides a waiver of sovereign immunity for claims against the United
States based on negligent or wrongful acts and/or admissions of federal employees
acting within the scope of their employment for claims alleging “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).
Discretionary Function Exception
The discretionary function exception to the FTCA protects the government from
tort liability for claims arising from federal actors “exercise . . . [of] a discretionary
function or duty. . . .” 28 U.S.C. § 2680(a). The two-step Gaubert test determines
whether conduct counts as a discretionary function. Kohl v. United States, 699 F.3d
935, 940 (6th Cir. 2012) (citing United States v. Gaubert, 499 U.S. 315, 322–23
(1991)). The first step asks “whether the challenged act or omission violated a
mandatory regulation or policy that allowed no judgment or choice.” Id. (Internal
citations omitted). “If there was a violation of mandatory regulation or policy, then

2/6

the discretionary-function exception will not apply, because ‘there was no element of
judgment or choice.’” Id.
The limited facts in evidence indicate that the discharge of firearms in this case
may have been contrary to policy. The discharge of firearms underpins Plaintiffs’
claims of assault and battery, false arrest and imprisonment, negligent infliction of
emotional distress, intentional infliction of emotional distress, and trespass. Because,
inter alia, Defendants may not have had discretion to discharge their firearms, the
Court cannot grant the Motion to Dismiss [13] on that basis.
Defendants attempt to analogize the case at bar to Milligan v. United States, 670
F.3d 686 (6th Cir. 2012). Milligan addressed the FTCA in the context of a person
who was mistakenly arrested due to clerical error. In Milligan, unlike here, the Sixth
Circuit found that officers did not violate any policy during their investigation. There
was no deadly force used in Milligan. Milligan is not instructive for the discretionaryfunction analysis here.
Intentional Tort Exception
In their Motion to Dismiss [13], Defendants argue that Plaintiffs have recast
what are actually negligence claims as intentional torts to circumvent sovereign
immunity.
Plaintiffs argue that officers intended to threaten to do bodily injury in
circumstances that created a well-founded fear of imminent peril to Plaintiffs,

3/6

intended to touch Plaintiffs against their will, intended to detain Plaintiffs, and
intended to restrain Plaintiffs’ freedom of movement.
The intentional tort exception protects the government from intentional tort
liability except where law enforcement or investigative officers engage in “assault,
battery, false imprisonment, [or] false arrest . . . .” 28 U.S.C. § 2680(h). Given the
limited facts in evidence, it is unknown whether Defendants were under reasonable
fear so as to justify the use of deadly force. Therefore, it would be premature to
dismiss Plaintiffs’ claims for assault and battery in Count III. It is also unknown
whether investigators had probable cause to search Plaintiffs’ residence. Therefore,
it would be premature to dismiss Plaintiffs’ claims for false imprisonment in Count
IV.
Intentional infliction of emotional distress is cognizable under the FTCA where
a suit would lie against a private individual under the relevant state law. See Singleton
v. United States, 277 F.3d 864, 872 (6th Cir. 2002) (reasoning that claims for
intentional infliction of emotional distress are cognizable under the FTCA where Ohio
law allowed for such suits against private individuals). Therefore, it would be
premature to dismiss Plaintiffs’ claims for intentional infliction of emotional distress
in Count VI. Likewise, trespass is an intentional tort in Michigan. Traver Lakes
Comm. Maint. Ass’n v. Douglas Co., 224 Mich. App. 335, 344 (Mich. Ct. App. 1997).
Although dismissal of Plaintiffs’ trespass claim was discussed at the hearing, upon

4/6

further consideration, the Court has decided that it would be premature to dismiss
Plaintiffs’ trespass claim at this point. There is no authority that Plaintiff’s trespass
claim is categorically barred by the FTCA
II. Bivens under 42 U.S.C. § 1983; Count II
Defendants move, pursuant to FRCP 12(b)(6), to dismiss Plaintiffs’ Bivens
claims under § 1983. To survive a motion to dismiss under Rule 12(b)(6) for failure
to state a claim, the complaint must contain, “a short and plain statement of the claim
showing that the pleader is entitled to relief” in order to provide fair notice to the
defendant of what the claim is and the grounds upon which it rests.
Plaintiffs allege Bivens claims only against the unnamed Defendant agents and
officers.
Plaintiffs have stated facially valid claims under § 1983 for Fourth and Fifth
Amendment violations. The task force involved in this raid was a joint effort between
federal agencies and state law enforcement. At this point, Plaintiffs are still trying to
identify the state officers involved in their claims. The § 1983 Bivens claim is
irrelevant to the Defendants who bring this Motion [13].
Accordingly, the Court being fully advised in the premises,
IT IS ORDERED that the Motion to Dismiss [13] is DENIED without
prejudice.

5/6

IT IS FURTHER ORDERED that the Government is to produce the warrant
relevant to this case in camera, ex parte by November 25, 2013.
SO ORDERED.

Dated: November 18, 2013

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

6/6