United States District Court, E.D. North Carolina, Western Division
BYRON C. BRIGGS, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
W. EARL BRITT, Senior District Judge.
This matter is before the court on plaintiff's motion to set aside the certification of this litigation pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. ("The Westfall Act"). (DE # 18.) The motion has been fully briefed and is ripe for disposition.
Plaintiff filed an action for malicious prosecution against Raymond P. Lacey, the head of the United States Army Directorate of Family, Morale, Welfare and Recreation ("MWR") at Fort Bragg, on 14 November 2013 in the Superior Court of Cumberland County. (DE # 1-1.) The government removed the action to this court on 10 December 2013. (DE # 1.) On the same date, the government submitted certification that Lacey was acting within the scope of his employment at all times of the incidents alleged in the complaint and substituted itself as the proper defendant in this action. (DE # 2, at 1-2.)
At the time of the incidents alleged in the complaint, Lacey acted as supervisor to plaintiff's mother, Lisa Briggs. (Lacey Declr., DE # 22-2, at 1.) On 4 October 2014, Lacey had a meeting with Ms. Briggs, who was accompanied by her attorney, to discuss ongoing conflicts she was having with coworkers that had manifested through multiple hostile emails. (Id.; DE # 18-1, at 1.) During the meeting, Lacey presented Ms. Briggs with a memorandum instructing her not to send emails outside the organization and to vet her email through her supervisors. (Lacey Declr., DE # 22-2, at 1.) Lacey also offered Ms. Briggs voluntary counseling with the Employee Assistance Program ("EAP"). (Id.) Ms. Briggs refused to sign the memo or the EAP checklist. (Id.) Some three hours after the meeting ended, Ms. Briggs sent an email outside the organization in violation of the directive she had been given. (Id.)
On that same date, around 9:30 p.m., Lacey received a call from a "private number" on his government-issued Blackberry phone. (Id.) Lacey, who was at his home, answered the phone, "MWR, Mr. Lacey." (Id. at 1-2; DE # 18-1 at 2.) According to Lacey, a male voice began screaming, "Is this Ray Lacey? I am going to take you down." (Lacey Declr., DE # 22-2, at 2.) Lacey identified himself again and asked the caller to identify himself. (Id.) The caller yelled that he was "Byron Briggs." (Id.) The caller repeatedly yelled, "I am going to take you down, " and "You're going down." (Id.) When Lacey once again asked for the caller's name, the caller identified himself as "Lisa's husband." (Id.) The caller then resumed yelling, and Lacey hung up the phone. (Id. at 2.)
On 5 October 2013, Lacey emailed several officials at Fort Bragg, including Chief of Civil Law Michael McHugh, informing them of the threatening phone call and his history with Ms. Briggs. (DE # 8-1, at 1-3.) On 6 October 2013, Lacey also sent an email to George Olavarria, Deputy Director of Emergency Services ("DES") at Fort Bragg, asking for guidance regarding the threat. (Id. at 9.)
On 7 October 2013, McHugh instructed Lacey via email to report the threat to the military police. (Id. at 1.) On that same date, Mr. Olavarria advised Lacey to contact local law enforcement in his community to report the threatening phone call as the incident occurred at his private residence. (Id. at 7.) However, later that day, the DES office contacted Lacey and asked him to give a statement because the incident involved a Fort Bragg employee. (Id. at 6.) That afternoon, Lacey went to the DES office and gave a statement regarding the threatening phone call. (Lacey Declr., DE # 22-2, at 2.)
Later that evening, Lacey appeared before a magistrate in Harnett County, North Carolina and stated that an individual named "Byron Briggs" had telephoned him on 4 October 2013 and communicated threats in violation of N.C. Gen. Stat. § 14-277.1. (Compl., DE # 1-1, ¶ 5.) Lacey informed the magistrate that Ms. Briggs' emergency contact records listed her husband's name as Clarence Briggs. (Lacey Declr., DE # 22-2 at 2.) However, Lacey indicated that Mr. Briggs went by the name of Byron because the caller identified himself as "Byron" and "Lisa Briggs' husband." (DE # 18-1, at 17.) Lacey also provided the magistrate with an address from Ms. Briggs' employment records. (Id.) The magistrate subsequently issued a misdemeanor criminal summons against Byron Briggs, age 42, which required him to appear in Harnett County District Court on 14 November 2013. (Compl., DE # 1-1, ¶ 5 & Ex. A.) A person who identified himself as Bryron Briggs accepted service of the criminal summons at the Cumberland County Sheriff's Office on 5 November 2013. (See Peterson Declr., DE # 22-4, at 2-3.)
On 13 November 2013, Lacey requested three hours of "Other Paid Absence" leave to attend court in reference to the communicating threats charge, which was approved by his supervisor Doug Earle. (DE # 22-5.) That same day, before the court hearing on the charge, Lacey met with the state prosecutor and plaintiff's attorney. (Lacey Declr., DE # 22-2 at 2.) During this meeting, plaintiff's attorney indicated plaintiff was a 23-year-old man who had no knowledge or affiliation with Lacey. (Id.) According to Lacey, the state prosecutor explained to him that he would have a difficult time proving the identify of the caller and recommended that Lacey drop the case. (Id.) Lacey agreed, and the prosecutor dismissed the case. (Id.)
The next day, on 14 November 2013, plaintiff filed the complaint against Lacey alleging the tort of malicious prosecution and demanding relief in excess of $25, 000.00 and punitive damages. (Compl., DE # 1-1.)
On the same day the government removed this action, it also filed a motion to dismiss, arguing that plaintiff's malicious prosecution claim must be dismissed because plaintiff failed to present an administrative claim with the appropriate agency as required under the Federal Tort Claims Act, 28 U.S.C. § 2401. (DE ## 3, 4.) After briefing, the court entered an order denying the government's motion to dismiss without prejudice on 7 June 2014. (DE # 16.) The court concluded there was insufficient evidence to make a determination as to whether the substitution of the government as the defendant was appropriate in this case. (Id. at 6.) The court directed the parties to conduct limited discovery to address the scope of employment issue. (Id. at 7.)
After conducting such discovery, plaintiff filed the instant motion challenging the government's certification of Lacey's actions as ...