Schmitt v. United States of America

Filing 53

ORDER denying as moot 42 Motion to Strike; adopting 49 Report and Recommendation; overruling 50 Objection to Report and Recommendation; granting 20 Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge Jeffrey L. Viken on 3/24/16. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
DORAN A. SCHMITT, as Special
Administrator of the Estate of Daniel
Eric Schmitt,

CIV. 13-5066-JLV
ORDER

Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.
INTRODUCTION
Before the court is the government’s motion to dismiss plaintiff Doran
Schmitt’s complaint for lack of subject matter jurisdiction and failure to state a
claim on which relief can be granted under Fed. R. Civ. P. 12(b)(1) and 12(b)(6),
respectively. (Docket 20). Alternatively, the government seeks summary
judgment. Id. Also before the court is the government’s motion to strike the
affidavit of plaintiff’s proffered expert, Phillip Hayden. (Docket 42). The court
referred both motions to Magistrate Judge Daneta Wollmann for a report and
recommendation. (Docket 48). Magistrate Judge Wollmann issued a report
recommending the court grant the government’s Rule 12(b)(1) motion to dismiss.
(Docket 49). Plaintiff timely filed objections and the government filed a response
to plaintiff’s objections.1 (Dockets 50, 51 & 52).
1Fed.

objections.

R. Civ. P. 72(b)(2) allows a party to respond to an opposing party’s

The court reviews de novo those portions of the report and
recommendation which are the subject of objections. Thompson v. Nix, 897
F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(1). The court may then
“accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. § 636(b)(1). For the reasons stated
below, defendant’s objections are overruled. The court adopts the report and
recommendation of the magistrate judge in full. The government’s motion to
strike is denied as moot.
ANALYSIS
I.

Magistrate Judge’s Findings of Fact
Neither party objected to the magistrate judge’s findings of fact. See

Dockets 51 & 52. The magistrate judge’s findings of fact are adopted by the
court in accordance with 28 U.S.C. § 636(b)(1)(C). Although it does not affect
the court’s analysis, the court notes that Bureau of Land Management (“BLM”)
Ranger Charles Huston testified that upon arriving at the Orman Dam they went
to Middle Point, not Gaden’s Point. (Docket 40-4 at p. 15).2 Specific facts will
be discussed to the extent they relate to plaintiff’s objections.
II.

Magistrate Judge’s Legal Conclusions
Ms. Schmitt asserts the magistrate judge erred in (1) determining the

court’s jurisdiction was not inextricably linked to the merits of the substantive
claim; and (2) finding the discretionary function exception applies. (Docket 51
The court’s pincites to transcripts reference the page number as identified
by CM/ECF.
2

2

at pp. 3-16). Ms. Schmitt again challenged the arguments promulgated by the
government in support of its motion to dismiss and motion for summary
judgment.3
1.

The Court’s Subject Matter Jurisdiction Is Not Inextricably
Bound to the Merits of Plaintiff’s Wrongful Death Claim

Ms. Schmitt asserts “the BLM policy materials were necessary both in
determining jurisdiction and also in determining [Ranger Huston’s] duty, and the
Magistrate should not have determined jurisdiction and negligence to be
severable.” (Docket 51 at p. 4). The court agrees with, and the plaintiff does
not object to, the magistrate judge’s conclusion that the government’s Rule
12(b)(1) motion to dismiss is a factual attack challenging the existence of the
court’s subject matter jurisdiction. (Docket 49 at p. 8). In a factual attack, the
court can look to evidence outside the pleadings when determining subject
matter jurisdiction. Whalen v. United States, 29 F. Supp. 2d 1093, 1095 & n.2
(D.S.D. 1998) (citing Osborn v. United States, 918 F.2d 724 (8th Cir. 1990)).
The plaintiff bears the burden of demonstrating that subject matter jurisdiction
exists in a factual attack. Id. (citing Osborn, 918 F.2d at 730 n.6). However,
“[w]hen a jurisdictional issue is so bound up with the merits that a full trial on
the merits may be necessary to resolve the issue, a court should not consider

3Because

the magistrate judge resolved the government’s motion to
dismiss based on the discretionary function exception to the Federal Tort Claims
Act (“FTCA”), resolution of the government’s remaining arguments was not
necessary.
3

information outside the pleadings on a motion to dismiss pursuant to Rule
12(b)(1).” Id. (citing Osborn, 918 F.2d at 730).
In Whalen, Jeffrey Whalen, Jr. was a passenger in a vehicle traveling on a
dirt road leading up to Sheep Mountain Table in the Badlands National Park.
Id. at 1095. At the top of the table, Mr. Whalen exited the vehicle, walked a
short distance and fell 300 to 400 feet to his death. Id. The estate of Mr.
Whalen sued the National Park Service (“NPS”) under the FTCA. Id. at 1094.
The court concluded the jurisdictional issue was not so entwined with the merits
that the issue could not be resolved absent a trial. Id. at 1095-96. The court
reasoned “the central issue in determining the 12(b)(1) motion is whether the
NPS had the discretion to determine what safety precautions to implement at
Sheep Mountain Table. If it was a discretionary decision, then the FTCA waiver
of immunity is not applicable and the Court is without jurisdiction.” Id. at
1096. The court further reasoned “[t]he lynchpin of such a determination is the
presence of federal statutes, guidelines, or policies which mandate certain
conduct. . . . This inquiry differs from the merits of plaintiff’s negligence claim
against the defendant and is not so enmeshed that a trial on the merits is
required.” Id.
Ms. Schmitt’s case is no different. The court’s evaluation of whether
Ranger Huston’s actions qualify for the discretionary function exception to the
FTCA, see 28 U.S.C. § 2680(a), is separate from an inquiry into the merits of Ms.
Schmitt’s wrongful death claim. The two analyses are severable. The
4

gravamen of the court’s inquiry into the discretionary function exception is the
presence of federal statutes, guidelines or policies bearing on the discretion
afforded to Ranger Huston’s actions. The fact that an administrative policy may
also inform the duty of care owed by a BLM employee does not render the
jurisdictional question so enmeshed with the merits of plaintiff’s wrongful death
claim that a trial on the merits is required.4 Plaintiff’s objection is overruled.
2.

The Discretionary Function Exception is Applicable.

“It is well settled that the United States may not be sued without its
consent.” Hinsley v. Standing Rock Child Protective Servs., 516 F.3d 668, 671
(8th Cir. 2008). “Congress waived the sovereign immunity of the United States
by enacting the FTCA, under which the federal government is liable for certain
torts its agents commit in the course of their employment.” Riley v. United
States, 486 F.3d 1030, 1032 (8th Cir. 2007) (internal quotation marks and
citations omitted). However, the United States does not waive sovereign
immunity when the “discretionary function” exception applies. Id. The
discretionary function exception provides no liability shall lie for “the exercise or
performance or the failure to exercise or perform a discretionary function or duty

4Notwithstanding

plaintiff’s assertions to the contrary, the duty owed by
Ranger Huston to Mr. Schmitt is a contested issue. In its original motion to
dismiss, the government asserted there is no private-person-liability analog for
Ranger Huston. See Docket 21 at p. 6. The government also asserts SDCL
§ 3-21-9 immunizes it from any liability stemming from Mr. Schmitt’s death. Id.
at pp. 6-10. The court did not need to reach these issues because the
discretionary function exception resolved the case.
5

on the part of a federal agency or an employee of the Government, whether or not
the discretion involved be abused.” 28 U.S.C. § 2680(a).
“The purpose of the discretionary function exception is to ‘prevent judicial
second-guessing of legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action in tort.’ ”
Hinsley, 516 F.3d at 672 (quoting United States v. Gaubert, 499 U.S. 315, 323
(1990)). “This discretionary function exception to the FTCA ‘marks the
boundary between Congress’ willingness to impose tort liability upon the United
States and its desire to protect certain governmental activities from exposure to
suit by private individuals.’ ” Dykstra v. U.S. Bureau of Prisons, 140 F.3d 791,
795 (8th Cir. 1998) (quoting United States v. S.A. Empresa de Viacao Aerea Rio
Grandense (Varig Airlines), 467 U.S. 797, 808 (1984)). “To the extent an alleged
act falls within the discretionary function exception, a court lacks subject matter
jurisdiction.” Id. (citations omitted).
A two-part test determines when the discretionary function exception
applies. “First, the conduct at issue must be discretionary, involving an
element of judgment or choice . . . and not controlled by mandatory statutes or
regulations[.]” Hinsley, 516 F.3d at 672 (internal quotation marks and citations
omitted). “If the employee violated a mandatory statute, regulation, or policy,
the conduct does not involve an element of judgment or choice, and therefore, the
conduct is not sheltered from liability under the discretionary function

6

exception.” Id. If no mandate exists, “the action is considered a product of
judgment or choice and the first step is satisfied.” Id. at 673 (citations omitted).
Under the second part of the test, the court must “determine whether the
judgment or choice was based on considerations of public policy.” Id. (citations
omitted). “If the challenged action was based on a judgment grounded in social,
economic, or political policy, the discretionary function exception applies.” Id.
(citations omitted). “It is the nature of the conduct and whether the conduct is
susceptible to policy analysis rather than the status of the actor that governs
whether the exception applies.” Metter v. United States, 785 F.3d 1227, 1231
(8th Cir. 2015) (internal quotation marks and citations omitted). “The exception
protects only governmental actions and decisions based on considerations of
public policy, and there is a rebuttable presumption that the government agent’s
acts are grounded in policy when established governmental policy . . . allows the
agent to exercise discretion.” Id. (internal quotation marks, brackets and
citations omitted).
A.

Ranger Huston’s Conduct Was Discretionary

Ms. Schmitt objects to the magistrate judge’s application of the first prong
of the discretionary function exception. Ms. Schmitt asserts Ranger Huston
had no option but to ensure Mr. Schmitt’s door remained locked, to inspect the
vehicle, to remain in constant visual observation of Mr. Schmitt, and to
personally operate the vehicle. (Docket 51 at pp. 5, 7). Ms. Schmitt also
asserts Ranger Huston was subject to an informal policy to utilize and inspect
7

the child safety locks. Id. at 7. Ms. Schmitt references BLM Law Enforcement
General Order 03 for the proposition that “[a] LEO [Law Enforcement Officer] who
has in custody or who is charged with the custody of any person(s) under arrest
or detention is responsible for the proper safeguarding and protection of such
person(s) and their property.” (Docket 40-11 at p. 3). Ms. Schmitt citing
McMichael v. United States, 856 F.2d 1026 (8th Cir. 1988), asserts “[t]he manner
in which a broad mandate is performed directly relates to the challenged conduct
and establishes a nondiscretionary function.” (Docket 51 at p. 6).
In McMichael, the United States Department of Defense (“DOD”)
contracted with Celesco Industries, Inc. to produce explosive photo-flash
cartridges. 856 F.2d at 1028. An explosion occurred at the Celesco plant
killing seven employees, seriously injuring five and causing minor injuries to
many others. Id. The contract between Celesco and the government required
Celesco to promulgate safety provisions and comply with safety standards set by
the DOD. Id. at 1029. This included the presence of three on site quality
assurance representatives. Id. The inspectors’ regular procedures included a
51-step review checklist for safety compliance. Id. The United States Court of
Appeals for the Eighth Circuit determined that although “the initial discretion
granted by the regulations to the [DOD] was broad; the inspectors, however,
violated the [DOD’s] own policy directives by failing to comply with the specific
procedures mandated by the [DOD],” specifically the inspectors failed to comply

8

with Item 16 on their 51-step checklist regarding evacuation when an electrical
storm hits. Id. at 1033.
General Order 03 provides that a BLM law enforcement officer (“LEO”) is
responsible for the safeguarding and protection of a person in his custody. BLM
Law Enforcement Operation Manual H-9260-2 provides specific guidelines and
procedures governing the handcuffing, searching and transportation of persons
taken into BLM custody. (Docket 40-9). The BLM’s policy regarding vehicle
maintenance states only that “LEOs must keep their assigned vehicles
reasonably clean. Vehicles must be refueled and given a daily inspection at the
start and end of each shift to ensure vehicle and equipment readiness for
response to emergency situations.” (Docket 40-13 at p. 2). The BLM indicates
at the time of Mr. Schmitt’s accident “there was no policy on disabling interior
door handles but agree[s] Ranger [name redacted] did everything correctly in
manually locking the door before transport.” (Docket 40-14 at p. 9). Ms.
Schmitt has not identified any policy or guidelines beyond an informal policy
based on Ranger Huston’s habits that imposes a duty to use or inspect child
safety locks. Unlike McMichael, there is no specific procedure with which
Ranger Huston failed to comply. Ranger Huston’s own habits do not impose an
agency mandate. (Docket 49 at p. 13). The court finds the first part of the
discretionary function exception is satisfied as to the child safety locks. See
Hinsley, 516 F.3d at 673.

9

Ms. Schmitt briefly asserts Ranger Huston had a “duty to maintain
constant visual observation” of Mr. Schmitt during transport. (Docket 51 at
p. 8). Ms. Schmitt relies on the affidavit of plaintiff’s proffered expert Philip
Hayden as the basis of this duty. Id. Mr. Hayden’s opinion does not impose a
duty on Ranger Huston to maintain constant visual observation of Mr. Schmitt
and no such specific duty has been identified in BLM policies. The court finds
the first part of the discretionary function exception is satisfied on this point.
Ms. Schmitt asks the court to interpret BLM General Order 17 governing
vehicles as requiring BLM law enforcement vehicles only be operated by BLM
LEOs. (Docket 51 at p. 9). However, the court agrees with the magistrate
judge’s interpretation of the BLM’s policy governing the use of motor vehicles.
(Docket 49 at p. 13-15); see also Docket 40-13 at p. 1. Ms. Schmitt asserts the
magistrate judge erred in affording deference to the BLM’s interpretation because
the court must “ ‘disregard all evidence favorable to the moving party that the
jury is not required to believe.’ ” (Docket 51 at p. 9) (quoting Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 151 (2000)).
In Reeves, the Supreme Court determined the standard for granting a
motion for judgment as a matter of law under Fed. R. Civ. P. 50 mirrored the
standard for granting a motion for summary judgment under Fed. R. Civ. P. 56.
See Reeves, 530 U.S. at 150. Therefore, when considering a motion for
judgment as a matter of law, courts “must disregard all evidence favorable to the
moving party that the jury is not required to believe.” Id. at 151. The
10

magistrate judge decided the government’s motion on the basis of the
government’s Rule 12(b)(1) motion to dismiss. (Docket 49). The magistrate
judge did not reach the government’s alternative motion for summary judgment.
Ms. Schmitt’s summary judgment argument is inapposite
In determining whether BLM’s policies imposed a mandatory duty on
Ranger Huston, the magistrate judge correctly considered and gave deference to
the BLM’s interpretation of its own policy. See Appley Bros. v. United States,
164 F.3d 1164, 1172 (8th Cir. 1999). The BLM concluded Ranger Huston’s
decision to allow South Dakota Conservation Officer Eastman to drive the BLM
vehicle was in compliance with its vehicle usage policy. See Docket 40-14 at pp.
6-7. The court further notes that the BLM’s interpretation is reasonable in light
of the policy’s reference to “law enforcement personnel” rather than the more
narrow category of “BLM law enforcement officers” in light of how closely the BLM
works and cooperates with other state and local regulatory and law enforcement
officials in the protection of public lands, especially in rural areas where
intra-agency assistance may be hours away. See, e.g., Docket 40-11 at p. 7
(BLM General Order 3 describes cooperation between the BLM and state and
local entities.); (Docket 40-14 at p. 10) (describing how the State Chief Ranger
was stationed in Billings, Montana, and drove six hours overnight to South
Dakota to satisfy his BLM “critical incident” obligations); (Docket 40-4 at p. 7)
(describing how Ranger Huston would join South Dakota Game Fish and Parks

11

officers on boat patrols). The court finds the first part of the discretionary
function exception is satisfied.
Ms. Schmitt claims Ranger Huston violated the BLM seating protocol by
sitting directly in front of Mr. Schmitt. (Docket 51 at pp. 8-9). Ms. Schmitt
asserts because Ranger Huston was the only BLM LEO in the car BLM Handbook
H-9260-2, Chapter VI (Docket 40-9 at p. 2) dictates that Mr. Schmitt should not
have been allowed to sit directly behind him. As demonstrated above, the BLM
policies afford Ranger Huston discretion in allowing other law enforcement
personnel to drive the BLM while he is also in the car, which necessarily alters
the typical single BLM LEO and transportee seating arrangement.
Furthermore, the BLM interpreted this provision and determined Ranger Huston
was in compliance. (Docket 40-14 at pp. 7-8) (applying the provision for cases
where two BLM LEOs are in the vehicle). The court affords this interpretation
great deference and finds the first part of the discretionary function exception is
satisfied.
B.

Ranger Huston’s Judgment Was Based on Considerations
of Public Policy

Ms. Schmitt objects to the magistrate judge’s reliance on Hart v. United
States, 630 F.3d 1085 (8th Cir. 2011), in finding that Ranger Huston’s actions
regarding the inspection of his vehicle, whether to employ child safety locks and
allowing Officer Eastman to drive his vehicle, were grounded in public safety,
economic or other public policy concerns. (Docket 51 at pp. 10-11). Ms.
Schmitt asserts Ranger Huston’s failure to check the child safety locks was due
12

to inattention and his decision to allow Officer Easton to drive the car was not an
on the spot decision as was the case in Hart but rather a sensible decision based
on a concern for efficiently completing reports. Id. at 11-12.
“In deciding whether the nature of the [challenged] actions [are]
‘susceptible to policy analysis,’ ‘[t]he focus of the inquiry is not on the agent’s
subjective intent.’ . . . Rather, we look to whether the decision being challenged is
“grounded in social, economic, or political policy.’ ” Metter, 785 F.3d at 1231-32
(8th Cir. 2015) (quoting Gaubert, 499 U.S. at 323, 325). The court is aware that
“there is a rebuttable presumption that the government ‘agent’s acts are
grounded in policy’ ‘[w]hen established governmental policy . . . allows [the] agent
to exercise discretion.” Id. at 1231 (quoting Gaubert, 499 U.S. at 323-24).
The BLM had no policy requiring the use or inspection of child safety locks
at the time of Mr. Schmitt’s accident. The BLM Board “discussed child locks
and agreed child locks are good for stopping children from opening doors, but not
sufficient to prevent adults from manipulating the lock.” (Docket 40-14 at p. 8).
The BLM Board noted “how permanently disabling the interior door handle is
different than temporar[ily] disabling the door via the child lock. Ranger [name
redacted] explained by totally disabling the door will ensure safety during
transport of individuals in custody of BLM law enforcement officers.” Id. at 9.
The BLM made a policy determination not to require its LEOs to use child
safety locks. The BLM’s vehicle maintenance provision, which makes no
reference to the inspection of child safety locks, is a corollary of this policy
13

determination. See Docket 40-13 at p. 3. Ms. Schmitt’s assertion that Ranger
Huston carelessly failed to inspect the vehicle’s child safety locks, despite Ranger
Huston being under no obligation to do so, is actually a challenge to BLM’s policy
decision that LEOs need not use nor inspect child safety locks on their law
enforcement vehicles. Ms. Schmitt failed to rebut the presumption that Ranger
Huston’s conduct was grounded in policy.
Ranger Huston’s decision to allow Officer Eastman to drive his vehicle
while he completed the requisite reports in the passenger seat of his law
enforcement vehicle is also grounded in policy. Ms. Schmitt asserts Ranger
Huston’s decision to allow Officer Eastman to drive was not an on the spot
decision under Hart and was not grounded in policy but rather a concern to
efficiently complete reports. The Eighth Circuit said in Hart:
In general, because it is the mandatory duty of law enforcement
agents to enforce the law, decisions as to how to best fulfill that duty
are protected by the discretionary function exception. . . . [The agent
is] required to consider his training, the need to restrain [the
arrestee], the concern for [the arrestee’s] safety, the public’s safety,
his available resources, and the information at hand in determining
the proper course of action. All of these factors indicate that the
decision regarding how to best effectuate an arrest warrant is
“fundamentally rooted in policy considerations, and that judicial
second-guessing of this decision thus is not appropriate.”
Hart, 630 F.3d at 1091 (quoting Williams v. United States, 314 Fed. Appx. 253,
257–58 (11th Cir. 2009)).5

5The

court will not further elaborate on the facts in Hart as the report and
recommendation provides an extensive analysis of the case. See Docket 49 at
pp. 17-18.
14

It is clear Ranger Huston and Officer Eastman were working together to
restore order to an emergency situation caused by an intoxicated person, later
determined to be Mr. Schmitt, trying to fight other campers at the Orman Dam.
(Docket 49 at p. 2). Ranger Huston was called at home and asked to respond to
the 911 call. Id. Ranger Huston in turn called Officer Eastman and asked him
for assistance in responding to the call. Id. After Mr. Schmitt was arrested,
Ranger Huston asked Officer Eastman to drive the vehicle so he could sit in the
passenger seat and promptly complete the necessary reports associated with Mr.
Schmitt’s arrest.6 Id. at p. 4. The BLM found under these circumstances that
Ranger Huston’s decision was in compliance with BLM General Order 17,
Vehicles, IV, because “[i]t would have been unsafe to have [name redacted]
attempt to complete the paperwork while driving or if [name redacted] would
have done the paperwork at the scene. [Mr.] Schmitt needed to be removed from
the scene and transported in a prompt fashion.” (Docket 40-14 at p. 7).
BLM officers and South Dakota Game Fish and Parks officers like Ranger
Huston and Officer Eastman often operate in remote areas where intra-agency
support may not be available and travel time is often measured in terms of
hours. In order to enforce the law, protect public land, protect the public and
6The

context of Ranger Huston’s request for inter-agency assistance and
decision to have Officer Eastman drive the vehicle must not be overlooked. Mr.
Schmitt’s accident occurred during the nighttime hours of September 5, 2010.
(Docket 1 at p. 3). Although Ranger Huston referenced this as Memorial Day
weekend (Docket 40-4 at p. 80), it is general knowledge that this was in fact
Labor Day weekend. This was a busy time for law enforcement at the Orman
Dam as Ranger Huston testified he had worked three consecutive days of twelve
hour shifts. Id.
15

protect each other, law enforcement agencies must work together, and law
enforcement personnel must have the ability to exercise discretion in
determining the most effective way to satisfy the obligations of their office. The
court will not engage in judicial second guessing of law enforcement’s on the spot
handling of an emergency situation, including asking for and receiving help from
members of other law enforcement agencies. To do so would disrupt the ability
of federal, state and local law enforcement officers to fulfill their duties.
At the time of Mr. Schmitt’s arrest, Ranger Huston determined Mr. Schmitt
must be detained immediately. Ranger Huston intended to complete the
necessary paperwork promptly on the way to jail while Officer Eastman drove the
vehicle. Ranger Huston made a discretionary decision at the scene of the arrest
about the best way to fulfill his law enforcement obligations in the arrest and
transport of Mr. Schmitt. See Hart, 630 F.3d at 1090 (“[A] federal law
enforcement officer’s on-the-spot decisions concerning how to effectuate an
arrest—including how best to restrain, supervise, control or trust an
arrestee—fall within the discretionary function exception to the FTCA absent a
specific mandatory directive to the contrary.”). Ms. Schmitt failed to rebut the
presumption that Ranger Huston’s decision to allow Officer Eastman to drive
was grounded in policy. See Hart, 630 F.3d at 1091 (quoting Williams, 314 Fed.
App’x. at 257-58). Plaintiff’s objections are overruled.
Because the discretionary function exception applies, sovereign immunity
is not waived and the court is without jurisdiction to adjudicate Ms. Schmitt’s
16

complaint. The government’s Rule 12(b)(1) motion to dismiss is granted. The
court dismisses Ms. Schmitt’s complaint without prejudice. See Hart, 630 F.3d
at 1091. The court need not address the government’s remaining arguments in
support of its motion to dismiss or, in the alternative, for summary judgment.
The government’s motion to strike the affidavit of Phillip Hayden is denied as
moot. (Docket 42).
ORDER
Based on the above analysis, it is
ORDERED that the plaintiff’s objections (Docket 50) to the report and
recommendation are overruled.
IT IS FURTHER ORDERED that the report and recommendation (Docket
49) is adopted in full.
IT IS FURTHER ORDERED that the government’s motion to dismiss
(Docket 20) is granted.
IT IS FURTHER ORDERED that plaintiff’s complaint (Docket 1) is
dismissed without prejudice.
IT IS FURTHER ORDERED that the government’s motion to strike (Docket
42) is denied as moot.
Dated March 24, 2016.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
17