United States District Court, M.D. North Carolina
Decided: February 25, 2014.
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For BILLY LEE BOLES, JR, Plaintiff: ERIC A. RICHARDSON, LEAD ATTORNEY, OXNER, THOMAS & PERMAR, PLLC, GREENSBORO, NC.
For UNITED STATES, Defendant: JOAN BRODISH BINKLEY, LEAD ATTORNEY, OFFICE OF U.S. ATTORNEY, GREENSBORO, NC.
MEMORANDUM OPINION AND ORDER
Thomas D. Schroeder, United States District Judge.
This is a personal injury action brought under the Federal Tort Claims Act, 28 U.S.C. § § 1346, 2671, et seq. (" FTCA" ). Before the court are three motions: the United States' motion to dismiss or in the alternative for summary judgment pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 56 (Doc. 6); Plaintiff Billy Lee Boles, Jr.'s motion to file an amended complaint pursuant to Rule 15 (Doc. 11); and the United States' motion to strike Boles' demand for a jury trial. For the reasons set forth below, the Government's motion to dismiss will be granted in part and denied in part, its motion to strike Boles' jury demand will be granted, and Boles' motion to amend will be granted in part and denied in part.
The facts, viewed in the light most favorable to Boles, are as follows:
In approximately September 2009, Terry Porter, a civilian employee of the United States Coast Guard (" Coast Guard" ) in Portsmouth, Virginia, was hospitalized for mental illness. (Doc. 11-1 ¶ 4.) As a result, his Coast Guard security access was suspended. (Id.) Coast Guard employees, including Amy Kritz, were aware of Porter's hospitalization. (Id. ¶ 5.) On or about September 18, 2009, Kritz, concerned about the safety of Porter and others, encouraged him to store his privately-owned firearms in the Coast Guard's Armory in Portsmouth. (Id. ¶ 7.) Kritz assisted Porter in transferring his nine firearms - which included a Norinco 7.62 x 39 mm rifle, a shotgun, and several handguns - to the Armory. (Id. ¶ ¶ 8-9.)
On January 14, 2010, the Suffolk Juvenile and Domestic Relations District Court of the Commonwealth of Virginia entered a two-year protective order against Porter because, among other things, he had used a weapon in connection with his domestic abuse of his family. (Id. ¶ ¶ 12-13.) The protective order, which was entered into the Virginia Criminal Information Network, prohibited Porter from possessing any firearm or ammunition. (Id. ¶ 14.) Kritz, who had monitored the progress of Porter's domestic abuse case, attended the hearing and was aware of the protective order. (Id. ¶ ¶ 16, 36.) Sometime thereafter, Porter's wife (" Mrs. Porter" ) and her children moved to Lexington, North Carolina, where they resided in a home next to Boles. (Id. ¶ 15.)
On or about March 22, 2010, Porter removed his firearms from the Armory,
with the assistance of several Coast Guard employees. (Id. ¶ ¶ 19-22.) Ten months later, on January 9, 2011, after discovering the location of his family, Porter traveled to Lexington and threatened his wife at gunpoint, using the firearms obtained from the Armory. (Id. ¶ ¶ 26, 28.) During the incident, Boles heard his dog barking, opened his door, and heard Mrs. Porter's cry for help. (Id. ¶ 29.) Boles called out to Mrs. Porter from his front porch in an attempt to help her. (Id. ¶ 30.) In response, Porter shot Boles several times, seriously and permanently injuring him and damaging his property. (Id. ¶ ¶ 30-32.)
Boles contends that the shooting was a result of the Coast Guard's negligence in allowing Porter to reclaim the firearms he used from the Armory, despite the fact the Coast Guard employees were aware that he had voluntarily committed himself to a mental hospital and had a domestic violence protective order, which was a public record, entered against him. Boles' original complaint sought relief under two counts of negligence: Count I alleged that Kritz was negligent for releasing the firearms to Porter, in violation of 18 U.S.C. § 922(g)(4); Count II alleged that other unnamed Coast Guard employees were negligent in failing to supervise Kritz, allowing return of the firearms, and failing to warn Boles. (Doc. 1.)
Partly as a result of the briefing on the pending motions, Boles moved to amend his complaint to reformulate his original claims and to add several others. Specifically, Count I of the proposed amended complaint alleges that Kritz, by encouraging and assisting Porter in storing his personal firearms at the Armory, assumed a duty to act with reasonable care and breached it by, among other things, failing to communicate Porter's mental health status and protective order restriction to Coast Guard employees and failing to prevent the return of the firearms to Porter. (Doc. 11-1 ¶ ¶ 34-44.) Boles alleges in Count I that Kritz knew that Porter was prohibited from possessing the firearms pursuant to the Gun Control Act of 1968, 18 U.S.C. § 921 et seq. (the " Act" ), specifically § 922(g)(4) (making it unlawful for anyone who has been adjudicated as a mental defective or who has been committed to a mental institution to possess a firearm) and § 922(g)(8) (making it unlawful for anyone to possess a firearm who is subject to certain domestic violence protective orders). (Doc. 11-1 ¶ ¶ 35, 37.) Count II alleges that Coast Guard employees at the Armory assumed a duty to act reasonably when they accepted Porter's personal firearms for storage and breached it by, among other things, releasing the firearms under the circumstances and failing to warn Mrs. Porter and others. (Id. ¶ ¶ 45-49.) Count III alleges negligence per se as to unnamed Coast Guard employees for returning Porter's firearms to him in violation of § 922(d)(8) of the Act (making it unlawful to dispose of a firearm to a person knowing or having reasonable cause to believe he is subject to certain domestic violence protective orders). (Id. ¶ ¶ 50-54.) Count IV alleges negligence per se as to unnamed Coast Guard employees for returning Porter's firearms to him in violation of § 922(d)(4) of the Act (making it unlawful to dispose of a firearm to a person knowing or having reasonable cause to believe he has been adjudicated as a mental defective or has been committed to any mental institution). (Id. ¶ ¶ 55-60.) Count V alleges negligence per se as to unnamed Coast Guard employees for returning Porter's firearms to him in violation of Va. Code Ann. § 18.2-56.1(A) (making it unlawful for anyone to recklessly handle a firearm). (Id. ¶ ¶ 61-65.) Finally, Count VI alleges that once the Coast Guard returned Porter's firearms, it had a duty to
protect Porter from harming others and to warn Mrs. Porter based on a special relationship between the United States and Porter under Virginia law by virtue of the employer-employee relationship. (Id. ¶ ¶ 66-76.)
The Government moves to dismiss on the ground that this court lacks subject-matter jurisdiction over the action because the Government has not waived sovereign immunity. The Government relies on 28 U.S.C. § 2680(h), which provides that the FTCA's limited waiver of sovereign immunity shall not apply to " [a]ny claim arising out of assault [or] battery," which it contends Boles' action does. The Government also moves to dismiss and opposes Boles' motion to amend on the grounds of Boles' alleged failure to exhaust administrative remedies and futility based on a failure to state a claim for negligence under the FTCA and Virginia law. (Doc. 14.) Boles responds that the Government misreads applicable law and that he has stated proper FTCA claims premised on Virginia law.
The arguments will be addressed in turn.
A. United States' Rule 12(b)(1) Motion
As a threshold matter, the Government challenges the court's jurisdiction over the subject matter of this action. " As [a] sovereign, the United States enjoys immunity from suits for damages at common law." Perkins v. United States, 55 F.3d 910, 913 (4th Cir. 1995). Boles predicates jurisdiction solely on the FTCA, which " creates a limited waiver of the United States' sovereign immunity by authorizing damages actions for injuries caused by the tortious conduct of federal employees acting within the scope of their employment, when a private person would be liable for such conduct under state law." Suter v. United States, 441 F.3d 306, 310 (4th Cir. 2006); see 28 U.S.C. § 1346(b)(1). Absent application of the FTCA, this court lacks subject-matter jurisdiction over suits for money damages against the United States. Kerns v. United States, 585 F.3d 187, 194 (4th Cir. 2009). The burden of establishing the court's subject-matter jurisdiction lies with the plaintiff. Id.
The FTCA provides in relevant part that the district courts shall have exclusive jurisdiction over civil actions on 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 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.
28 U.S.C. § 1346(b)(1). An intentional tort exception provides that the FTCA's limited waiver of sovereign immunity shall not apply to " [a]ny claim arising out of assault, battery" or certain other listed torts. 28 U.S.C. § 2680(h). The Government argues that this exception should be read broadly, that Boles' various negligence claims arise out the assault and battery committed by Porter, and that Boles' claims are therefore jurisdictionally barred.
Boles contends that Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988), controls the jurisdictional outcome in this case. The court agrees. In Sheridan, the Supreme Court considered whether section 2680(h) barred a claim that three naval corpsmen were negligent when they encountered a clearly intoxicated off-duty serviceman lying on the floor in a naval hospital, attempted to
take him to the emergency room, but fled when they saw the barrel of a rifle among his things. Id. at 395. The corpsmen never reported that an intoxicated serviceman was in possession of a dangerous weapon. Id. The intoxicated serviceman later fired shots into the plaintiffs' automobile, causing personal injury and property damage. Id. The Court rejected the Government's argument that the intentional tort exception barred the plaintiffs' claims against it. The Court reasoned that the employment relationship (the fact the intentional tortfeasor was a federal employee) was irrelevant to the underlying negligence claims, which alleged (among other things) the Government's failure to abide by its own voluntary regulations requiring the reporting of the presence of firearms and its failure to " perform [its] 'good Samaritan' task in a careful manner." Id. at 402 (citation omitted); see also Durden v. United States, 736 F.3d 296, 309 (4th Cir. 2013). In reaching this result, the Court noted that the intoxicated employee was off duty at the time of his actions and, citing Panella v. United States, 216 F.2d 622 (2d Cir. 1954), stated that the exception should not apply to claims of assault and battery by persons who were not acting within the scope of their office or employment. 487 U.S. at 400-01 (stating that " [t]he exception should therefore be construed to apply only to claims that would otherwise be authorized by the basic waiver of sovereign immunity" ). Thus, the Court found that the FTCA waived sovereign immunity for suit against the corpsmen who acted in the scope of their employment to the extent the claims were " entirely independent of" the intentional tortfeasor's employment status. Id. at 401.
The Government relies on the Fourth Circuit's decision in Perkins, but that reliance is misplaced. In Perkins, the wife of an employee hired by an agent of the Internal Revenue Service (" IRS" ) to remove equipment owned by a delinquent taxpayer from a coal mine sued the Government for wrongful death, claiming the death was caused by the IRS agents' negligence in violating state statutes and Internal Revenue Manual provisions governing the seizure of assets. 55 F.3d at 912. The court held that 28 U.S.C. § 2680(c), which exempts from the FTCA " [a]ny claim arising in respect of the assessment or collection of any tax," barred the plaintiff's suit because the IRS agent involved was acting in the scope of his tax-collecting duties when he contracted with the decedent. Id. at 913, 915. Pertinent here, the court also affirmed the district court's refusal to allow the plaintiff to amend her complaint to add a claim for negligent supervision. The Government points to the court's statement that " [a]n allegation of 'negligent supervision' will not render an otherwise unactionable claim actionable so long as the negligent supervision claim depends on activity of the supervised agent which is itself immune." Id. at 916.
In reaching its conclusion, the Perkins court cited Thigpen v. United States, 800 F.2d 393 (4th Cir. 1986), and Hughes v. United States, 662 F.2d 219 (4th Cir. 1981). The Government contends that these decisions also support its position. In Thigpen, the Fourth Circuit held that section 2680(h) barred a suit against the United States for negligent supervision by Navy physicians and hospital staff where the minor plaintiffs had been molested by a naval hospital corpsman who monitored their post-surgical condition. The court stated that " [s]ection 2680(h) . . . bars FTCA claims that allege the negligence of supervisors but depend upon the existence of an assault or battery by a government employee." Thigpen, 800 F.2d at 395. Similarly, in Hughes, the plaintiff brought
suit on behalf of two minor children who were sexually assaulted by a United States Postal Service employee who had lured them into his postal truck. The Fourth Circuit held that the suit arose out of the intentional act of the employee who was in the course of his mail route, not the negligence of any other federal employee, and affirmed the district court's dismissal of the plaintiff's FTCA claim. Hughes, 662 F.2d at 220.
These cases provide limited help to the Government. Perkins stands for the proposition that a plaintiff may not circumvent section 2680(h) by pleading negligent retention or negligent supervision where the only basis for the Government's liability arises out of the employment relationship and is premised on the intentional tort of a federal employee. See Perkins, 55 F.3d at 917; see also Sheridan, 487 U.S. at 406 (Kennedy, J., concurring in the judgment) (" To determine whether a claim arises from an intentional assault or battery and is therefore barred by the exception, a court must ascertain whether the alleged negligence was the breach of a duty to select or supervise the employee-tortfeasor or the breach of some separate duty independent from the employment relation." ). As Boles notes, he has not pleaded negligent retention or supervision of Porter.
Moreover, both Thigpen and Hughes are questionable authorities in light of the subsequently-decided Sheridan. The portion of Thigpen upon which the Government seeks to rely was its articulation of section 2680(h), see 800 F.2d at 395 (finding that section 2680(h) " erects a bar to all claims which rely on the existence of an assault or battery by a government employee" irrespective of section 1346(b)(1)'s " scope of employment" requirement), which has been rejected by Sheridan. Similarly, Hughes found no liability for negligent supervision of a mailman who, while on his route, molested two young girls. In a short per curiam opinion, the Fourth Circuit noted that the district court dismissed the complaint on the ground that the claims, " although framed in terms of negligence, actually arose out of the assaults and batteries committed by [the mailman]" and affirmed " for reasons adequately stated by the district court." 662 F.2d at 220. The district court had concluded dismissal was required because " there would have been no assault except for the separate and independent acts of [the mailman]." Hughes v. Sullivan, 514 F.Supp. 667, 670 (E.D. Va. 1980). To the extent this reading is based on the fact that the dismissed claim was brought under a negligent retention theory, it is consistent with Sheridan and does not help the Government; however, to the extent the Government intends it to be read more broadly, it is inconsistent with Sheridan.
Finally, the Government relies on United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985), which predates Sheridan. There, four justices, led by Chief Justice Burger, noted that
[r]espondent cannot avoid the reach of § 2680(h) by framing her complaint in terms of negligent failure to prevent the assault and battery. Section 2680(h) does not merely bar claims for assault or battery; in sweeping language it excludes any claim arising out of assault or ...