Blatchford v. Guerra, 82-6256-CIV-EPS.

• Citation: 548 F. Supp. 406
• Decision Date: 03 September 1982
• Docket Number: No. 82-6256-CIV-EPS.,82-6256-CIV-EPS.
• Parties: John W. BLATCHFORD and Susan M. Blatchford, his wife, Plaintiffs, v. Thomas GUERRA, Defendant.
• Court: U.S. District Court — Southern District of Florida

548 F. Supp. 406

John W. BLATCHFORD and Susan M. Blatchford, his wife, Plaintiffs, v. Thomas GUERRA, Defendant.

No. 82-6256-CIV-EPS.

United States District Court, S. D. Florida.

September 3, 1982.

Stover, Stoker, Medlin & Hmielewski, Ft. Lauderdale, Fla., for plaintiff.

Marc Fagelson, Asst. U. S. Atty., Miami, Fla., for defendant.

SPELLMAN, District Judge.

THIS CAUSE came before the Court on Defendant's Motion to Dismiss, based on a claim of sovereign immunity, an action for battery filed by a government employee against his supervisor.

ORDERED AND ADJUDGED that the Motion to Dismiss is GRANTED.

For the purposes of a motion to dismiss for failure to state a claim upon which relief can be granted, the allegations of the complaint must be viewed in the light most favorable to the plaintiff. Erco Industries, Ltd. v. Seaboard Coast Line R.R., 644 F.2d 424 (5th Cir. 1981).

The complaint alleges the following facts. Guerra was Blatchford's supervisor at the Plantation Branch, Florida, Post Office. Guerra assigned Blatchford to a mail route that Blatchford believed would require overtime work. Such overtime must be approved in advance by a supervisor. When Blatchford requested Guerra's approval of overtime, Guerra became "upset." Guerra abused Blatchford verbally and ultimately struck him in the face with his open hand.

There has been no waiver of sovereign immunity by the United States in regard to the torts of assault and battery. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1954).

The Court finds that the facts, as alleged, when considered in light of the body of case law that has arisen regarding this issue, require an order of dismissal for failure to state a cognizable claim. See Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1954); Evans v. Wright, 582 F.2d 20 (5th Cir. 1978); Bagwell v. Brannum, 533 F.Supp. 362 (N.D.Ga.1982); Chafin v. Pratt, 358 F.2d 349 (5th Cir. 1966); Norton v. McShane, 332 F.2d 855 (5th Cir. 1964).

This Court finds that Guerra's actions occurred within the scope of his employment, albeit on the extreme edge of the "outer perimeter" mentioned in Evans, supra, at 22, and Bagwell, supra, at 364.

It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of

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