Davis v. U.S., 3:05 CV 1537(PCD).

• Citation: 430 F.Supp.2d 67
• Decision Date: 28 April 2006
• Docket Number: No. 3:05 CV 1537(PCD).,3:05 CV 1537(PCD).
• Parties: Dianah DAVIS, Plaintiff, v. UNITED STATES of America and Martin Vega, Jr., Defendants.
• Court: U.S. District Court — District of Connecticut

430 F.Supp.2d 67

Dianah DAVIS, Plaintiff, v. UNITED STATES of America and Martin Vega, Jr., Defendants.

No. 3:05 CV 1537(PCD).

United States District Court, D. Connecticut.

April 28, 2006.

COPYRIGHT MATERIAL OMITTED

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Marc L. Glenn, Law Offices of W. Martyn Philpot, Jr., LLC, New Haven, CT, for Plaintiff.

Victoria S. Shin, U.S. Attorney's Office, New Haven, CT, for Defendants.

RULING ON MOTION TO DISMISS

DORSEY, District Judge.

Defendants move, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss this action for lack of subject matter jurisdiction and for failure to state a claim. Plaintiff, Dianah Davis, filed her complaint on October 4, 2005 against Defendants United States of America and Martin Vega, Jr., the United States Postal Inspector for the United States Postal Inspection Service, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2401, et. seq., alleging negligence, false arrest, abuse of process, and malicious prosecution. Plaintiff also claims, pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), that she was falsely arrested in violation of her Fourth Amendment rights. Defendants' Motion to Dismiss [Doc. No. 20] is granted in part and denied in part.

I. BACKGROUND

Plaintiff is employed as a mailhandler by the United States Postal Service ("USPS"). Compl. ¶ 6. On October 23, 2002, while Plaintiff was working in the rewrap area of the Hartford Processing and Distribution Center, a white powdery substance spilled out of a piece of mail and onto Plaintiffs lap. Id. ¶ 7. Plaintiff reported the incident to management, but the postal police and police inspectors were unable to conclusively determine the nature of the substance. Id. ¶ 8. Plaintiff asked to be sent to the hospital and reported her health and safety concerns to National Postal Mail Handlers Union ("NPMHU") Branch 34 President, Rene Morissette. Id. After a period of time had passed without any word from management advising Plaintiff about her health, Plaintiff called the police and requested that an ambulance be sent. Id. ¶ 9. The next day Plaintiff learned that the substance was not toxic in nature. Id. ¶ 10.

On October 26, 2002 Plaintiff attempted to return to work, but was not allowed to enter the building. Id. ¶ 11. A Manager of Distribution Operations informed Plaintiff that she had been placed on emergency off-duty placement as a result of her alleged inappropriate behavior on October 23. Id. The matter was referred to the Hartford Police Department and an investigation was conducted, however, no further action was taken against Plaintiff. Id. ¶ 12.

On November 19, 2002 a similar powder incident involving the Plaintiff occurred, after which one of Plaintiff's supervisors suggested that Plaintiff was behind the two incidents. Id. Plaintiff's complaint alleges that she was arrested and required to appear in Hartford Superior Court on numerous occasions as a result of the supervisor's remarks. Id. ¶ 14. The matter was disposed of via Plaintiff's enrollment in and successful completion of the Accelerated Rehabilitation Program. Id.

Thereafter, Plaintiff, pursuant to the Collective Bargaining Agreement between Defendant and the NPMHU, instituted a grievance procedure for the events relating to the October 23 and November 19 incidents. Id. ¶ 15. An arbitration panel found that Plaintiff should be compensated for any pay and/or benefits lost as a result of being placed on emergency off-duty placement. Id. Defendant also conducted its own investigation in connection with a federal grand jury indictment of Plaintiff for the November 19, 2002 incident. Id. ¶ 17. As part of the investigation, Plaintiff was required to submit to a handwriting exemplar, whereby she had to write her name over three-hundred times. Id. ¶ 16. The investigation resulted in a finding that Plaintiff did nothing wrong in either incident. Id.

Plaintiff alleges in her complaint that Defendants "knew or should have known of the improper intimidation tactics ..., including but not limited to forcing [Plaintiff] to face criminal charges." Id. ¶ 18. As a result, on April 25, 2005 Plaintiff filed an administrative claim with the USPS by submitting, pursuant to 28 U.S.C. § 2671, et. seq., a Standard Form 95 for exhaustion purposes. Id. ¶ 19. In a letter dated June 8, 2005, the USPS denied Plaintiff's claim on the ground that she failed to file her claim within the mandatory two-year statute of limitations. Id.

Plaintiff subsequently filed a two-count complaint with this Court. Count One of Plaintiff's Complaint includes claims of negligence, false arrest, abuse of process and malicious prosecution under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2401, et. seq. Id. ¶ 20. In Count Two Plaintiff alleges, pursuant to Bivens, that Defendants violated Plaintiff's Fourth Amendment rights by subjecting her to a false arrest. Id. ¶ 21.

Defendants move to dismiss Count One as to both Defendants and Count Two as to the United States and Defendant Vega in his official capacity under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. Defs' Mot. Dismiss at 3. Defendants move to dismiss Count Two as to Defendant Vega in his individual capacity under Fed.R.Civ.P. 12(b)(6) for failure to state a claim for false arrest. Id.

II. DISCUSSION

A. Subject Matter Jurisdiction

A motion to dismiss pursuant to Rule 12(b)(1) seeks to dismiss a complaint for lack of subject matter jurisdiction. Fed. R.Civ.P. 12(b)(1). Plaintiff, as the party asserting subject matter jurisdiction, has the burden of proving its existence. Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.1996). A court must accept as true all material factual allegations in the complaint, but cannot draw inferences therefrom in favor of the party asserting jurisdiction. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.1998). In ruling on such a motion, a court is permitted to consider affidavits and other materials beyond the pleadings and must do so if resolution of a disputed factual issue may result in dismissal of the complaint for lack of jurisdiction. Robinson v. Gov't of Malaysia, 269 F.3d 133, 141 n. 6 (2d Cir.2001).

1. FTCA Claim against Defendant Vega

Defendants argue that Defendant Vega is not a proper party to an FTCA claim and that the claim should therefore be dismissed for lack of subject matter jurisdiction. See Defs' Mem. Supp. Mot. Dismiss at 4. The FTCA permits the United States to be sued for torts committed by United States employees acting within the scope of their employment. 28 U.S.C. § 2674. The Federal Employees Liability Reform & Tort Compensation Act of 1988 ("LRA"), however, specifically limits the relief available to persons injured by government employees. United States v. Smith, 499 U.S. 160, 161, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991). Section 5 of the LRA states that the remedy for such injured persons against the government under the FTCA "is exclusive of any other civil action or proceeding for money damages" and that "[a]ny other civil action or proceeding for money damages ... against the employee . . . is precluded." 28 U.S.C. § 2679(b)(1). In United States v. Smith, the Supreme Court interpreted other provisions of the LRA to confirm that § 5 makes the FTCA the exclusive mode of recovery for the tort of a government employee. 499 U.S. at 166-67, 111 S.Ct. 1180. Section 5 does, however, recognize two situations where an FTCA claim against the government is not the exclusive remedy: (1) when an injured plaintiff brings a Bivens claim against the government employee, seeking damages for a constitutional violation, or (2) when an injured plaintiff brings an action under a federal statute that authorizes recovery against a government employee. Id. at 166-67, 111 S.Ct. 1180 (citing 28 U.S.C. § 2679(b)(2)).

At the time of the two "powder incidents," Defendant Vega was employed by the United States government and was acting within the scope of his employment. Compl. ¶ 5. Therefore, Defendant Vega is not a proper party to the FTCA claim. Accordingly, Count One against him is dismissed for lack of subject matter jurisdiction.

2. FTCA Claim against United States

Defendants argue that Plaintiff's failure to timely file her administrative claim with the USPS prohibits her from pursuing her FTCA claim against the United States because the United States has not otherwise waived its sovereign immunity. Defs' Mem. Supp. Mot. Dismiss at 5-7. Under longstanding principles of sovereign immunity, relief may not be awarded against the United States unless it has waived its immunity. Dep't. of Army v. Blue Fox, Inc., 525 U.S. 255, 260, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999). The extent of the waiver is delineated by the statute consenting to the suit and "the terms of [the] consent . . . define [the] court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769-70, 85 L.Ed. 1058 (1941). When the United States has waived its immunity, the scope of the waiver must be strictly construed in favor of the United States. See Blue Fox, 525 U.S. at 261, 119 S.Ct. 687. The Supreme Court has long held that "limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957).

The FTCA contains a limited waiver of sovereign immunity for "claims against the United States for money damages . . . for injury or loss of property, or personal injury ... caused by negligent or wrongful act or omission of any employee of the government while acting within the scope of ... employment." 28 U.S.C. § 1346(b). The Government's consent to suit under the FTCA is foreclosed unless the injured party has first presented an administrative claim...