United States District Court, M.D. North Carolina
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE.
JOI ELIZABETH PEAKE, Magistrate Judge.
This Federal Tort Claims Act action comes before the Court on Motions to Dismiss filed by Defendant United States of America ("the Government"). The Government's first Motion [Doc. #15] is to dismiss for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Its second Motion [Doc. #17] is to dismiss for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6). For the reasons set out below, the Court recommends that the Government's Motion to Dismiss for lack of jurisdiction be granted, and that this action be dismissed. I. FACTS, CLAIMS, AND PROCEDURAL HISTORY
Plaintiff William Michael Burgess brings this action pursuant to the Federal Tort Claims Act (28 U.S.C. § 1346(b)) against ATF Special Agent J. Michael Watson and the United States Government. Plaintiff alleges that Special Agent Watson instigated the issuance of a federal arrest warrant against him in this Court for conspiracy to distribute marijuana. United States v. Burgess, No. 1:10CR196 (M.D. N.C. ). The grand jury indicted Plaintiff, his father (William Ray Burgess), his grandfather (William Randy Burgess), and a fourth person, Michael Dwight Hicks, on May 24, 2010. Count One of the indictment charged all defendants with conspiracy to distribute less than 50 kilograms of marijuana. Count Two charged William Randy Burgess and Michael Dwight Hicks with distributing 6.2 kilograms of marijuana. Count Three charged William Randy Burgess, a felon, with possession of two firearms in violation of federal law. On September 9, 2010, the Government filed motions to dismiss the indictment against Plaintiff and his father, William Ray Burgess. The Court granted those motions. Michael Dwight Hicks went to trial and was found not guilty on Counts 1 and 2. Plaintiff's grandfather, William Randy Burgess, pled guilty to Counts 2 and 3 of the Indictment. He was sentenced to six months imprisonment and three years of supervised release.
Plaintiff alleges that the investigation that led to the above charges began as an investigation by the Randolph County Sheriff's Department. That department arranged a "sting" operation which resulted in state charges against Plaintiff's grandfather, Randy, for trafficking in marijuana and conspiring to traffic in marijuana on October 30, 2009. On that same day, deputies searched the residence of Plaintiff's parents, Ray and Paula Burgess, purportedly on information that Randy and Ray Burgess were growing and selling marijuana.
During the search, officers found marijuana in a safe owned by Ray Burgess, and three bags of marijuana in another room of the house. Ray Burgess was arrested on state charges for possession with intent to sell and deliver marijuana, felony possession of marijuana, and maintaining a dwelling place for controlled substance sales. Paula Burgess was charged in state court with possession with intent to sell and distribute marijuana, felony possession of marijuana, maintaining a dwelling place for controlled substances sales, and selling/delivering a handgun to a minor. On November 4, 2009, Lt. Joyce of the Randolph County Sheriff's Department procured the issuance of a state arrest warrant against Plaintiff for the misdemeanors of simple possession of marijuana and possession with intent to use drug paraphernalia (digital scales). The evidence upon which Lt. Joyce relied to obtain these warrants against Plaintiff was that a set of digital scales and purported marijuana residue were found in the closet of a bedroom of Plaintiff's parents' residence which Plaintiff, as well as others, had used at various times. According to Plaintiff, there was no evidence that he conspired to distribute marijuana. Plaintiff was not present at his parents' home when the officers searched it.
Plaintiff further alleges that when he was arrested on November 4 on the state charges, he was released on an unsecured promise to appear. Following this arrest, Agent Watson spoke to Lt. Joyce concerning the sheriff's department investigation and Agent Watson's stated intent to bring federal charges against Randy Burgess, Ray Burgess, and Plaintiff. Plaintiff alleges that Lt. Joyce "specifically told Agent Watson that Lt. Joyce did not feel the evidence was sufficient to support any charges for conspiracy to distribute marijuana and asked Agent Watson not to proceed with any charges against Plaintiff for conspiracy to distribute marijuana." (Compl. [Doc. #1] ¶ 21.)
Plaintiff was indicted on the federal charges on May 25, 2010, and a federal arrest warrant was issued pursuant to the indictment. Plaintiff alleges that Agent Watson arrested him on May 28, 2010. He was incarcerated in the Randolph County Jail from Friday, May 28 until June 1, 2010, when he had his initial appearance in federal court. He was then transferred to the Forsyth County Jail, where he was held until the afternoon of Friday, June 4, 2010, at which time he was released after signing a $10, 000 unsecured compliance bond. About three months later, the Government moved to have all charges against him dismissed because, according to its motion, "[t]here is currently insufficient evidence to proceed with the case." (No. 1:10CR196-3 [Doc. #63].) Pursuant to the Government's Motion, the Court dismissed all charges against Plaintiff on September 9, 2010.
Plaintiff raises four claims for relief in his Complaint: (1) negligence; (2) malicious prosecution; (3) false arrest; and (4) abuse of process. Plaintiff alleges that he timely submitted his administrative claim to the ATF, and that the agency failed to make a final disposition of his claim within six months after it was filed. Plaintiff now seeks to recover $575, 000.
The Government argues in its Rule 12(b)(1) motion to dismiss that this Court lacks jurisdiction over Plaintiff's claims because the discretionary function exception to the Federal Tort Claims Act bars them. Plaintiff argues that the exception does not apply to his claims, and that even if his claim for negligence is barred, his other claims are specifically allowed under what is known as the "law enforcement exception" to the Act. II. DISCUSSION
1. Federal Tort Claims Act Discretionary Function Exception
In raising its contentions related to the FTCA, Defendant challenges the Court's subject matter jurisdiction over Plaintiff's claims. "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit. Sovereign immunity is jurisdictional in nature. Indeed, the terms of the United States' consent to be sued in any court define that court's jurisdiction to entertain the suit.... In 1946, Congress passed the FTCA, which waived the sovereign immunity of the United States for certain torts committed by federal employees." FDIC v. Meyer , 510 U.S. 471, 475 (1994) (internal citations and quotations omitted); 28 U.S.C. § 1346(b). The Federal Tort Claims Act ("FTCA") specifically allows lawsuits against the United States for injuries 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). However, "[t]he scope of this waiver is limited by a series of specific exceptions outlined in the Act, each of which is considered jurisdictional." Welch v. United States , 409 F.3d 646, 651 (4th Cir. 2005). The discretionary function exception to the Act provides that no liability shall lie for "[a]ny claim... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty 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). Where this exception applies, sovereign immunity has not been waived and the courts lack federal subject matter jurisdiction. Holbrook v. United States , 673 F.3d 341, 345 (4th Cir. 2012).
In determining whether an employee's actions fall within the discretionary function exception, courts should determine whether the challenged actions involved the exercise of discretion in furtherance of public policy goals. See United States v. Gaubert , 499 U.S. 315, 334 (1991). A discretionary act is one that involves "an element of judgment or choice." Berkovitz v. United States , 486 U.S. 531, 536 (1988). Thus, the exception does not apply when a federal statute, regulation, or policy "specifically prescribes a course of action for an employee to follow." Id . With regard to the element of furthering public policy goals, "if a government employee has discretion under the first Gaubert prong, it must be presumed' that his acts are grounded in policy when exercising that discretion[.]'" Bernaldes v. United States , 81 F.3d 428, 429 (4th Cir. 1996) (quoting Gaubert , 499 U.S. at 324).
In Medina v. United States , 259 F.3d 220 (4th Cir. 2001), the court found that the plaintiff's FTCA claims of assault and battery, false arrest, malicious prosecution, and infliction of emotional distress against INS agents who arrested him and attempted to have him deported were barred by the discretionary function exception. In finding that the "decision to arrest Medina was clearly clothed in public policy considerations, " the court cited Sloan v. United States Dep't of Housing and Urban Dev. , 236 F.3d 756, 760 (D.C. Cir. 2001), for the proposition that "[t]he decision to initiate a prosecution has long been regarded as a classic discretionary function." Medina , 259 F.3d at 229. Courts have overwhelmingly found that claims of negligent investigation or negligent arrest by law enforcement officers are barred by the discretionary function exception. See, e.g., Suter v. United States , 441 F.3d 306 (4th Cir. 2006) (claim of victims of fraudulent investment scheme that undercover federal agent improperly participated in the scheme as an investigatory method was barred by discretionary function exception); McCloskey v. Mueller , 385 F.Supp.2d 74 (D. Mass. 2005) (claim of estate of murder victim that FBI failed to follow up on call by self-proclaimed bank robber offering to surrender, and caller killed victim the next day, barred by discretionary function exception); Littell v. United States , 191 F.Supp.2d 1338 (M.D. Fla. 2002) (claim of malicious prosecution by instituting, maintaining, and continuing prosecution of defendant who was later acquitted was barred by discretionary function exception; court notes that the "overwhelming consensus of federal case law establishes that criminal law enforcement decisions-investigative and prosecutorial alike-are discretionary in nature and, therefore, by Congressional mandate, immune from judicial review.'" (quoting Mesa v. United States , 837 F.Supp. 1210, 1213 (S.D. Fla. 1993))); Flax v. United States , 847 F.Supp. 1183 (D.N.J. 1994) (claim of negligent surveillance of kidnap victim by FBI agents barred by discretionary function exception); Timmerman v. United States, Civ. No. 11-1816, 2012 WL 2052149 at *3 (D.P.R. June 5, 2012) (claim of negligent investigation by ICE agents which caused criminal charges to be filed against plaintiff barred by discretionary function exception; noting that "the First Circuit has clearly established that decisions to investigate or prosecute an individual fall squarely within the discretionary function exception.").
It is only in cases involving egregious misconduct by federal agents that the bar has not been applied. By way of example, in Litif v. United States , 682 F.Supp.2d 60 (D. Mass. 2010), the court held that families of murder victims could recover under the FTCA for actions of FBI agents protecting organized crime informants who committed killings. The FBI agents' actions included obstruction of justice by leaking a wiretap, racketeering by leaking information about informants providing information, and violation of agency guidelines. Id . at 81. The court found that the agents had no discretion to commit such acts, and, thus, the discretionary function exception did not apply. Similarly, in Limone v. United States , 271 F.Supp.2d 345 (D. Mass. 2003), the court found that the FBI agents' ...