Greene v. United States
| Decision Date | 18 January 2023 |
| Docket Number | Civil Action 6:22-120-WOB |
| Parties | MICHAEL GREENE, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. District Court — Eastern District of Kentucky |
On September 12, 2022, the United States filed a motion to dismiss the complaint filed by plaintiff Michael Greene. [R 12] The Court promptly directed Greene to file a response by October 6, 2022. [R. 13] Two days before that deadline Greene filed a motion requesting a 45-day extension of time to file his response, based upon the assertedly complex nature of the defenses presented in the dispositive motion. [R. 14] The Court granted Greene the full 45-day extension requested, and directed him to file his substantive response by November 21, 2022. In doing so, the Court expressly cautioned Greene:
... that this deadline will not be extended any further. And his failure to file a substantive response to the dispositive motion by this extended deadline will result in dismissal of this action for failure to prosecute and failure to comply with an Order of the Court. Cf. Humphrey v U.S. Attorney Gen. Office, 279 Fed.Appx. 328, 331 (6th Cir. 2008) ().
[R. 15 (emphasis added)] Green has now filed, on the eve of the extended deadline, a handwritten amended complaint. [R. 16] The tendered amended complaint does not differ materially from Greene's original complaint. See [R. 1] And Greene did not file a substantive response to the dispositive motion as directed, and the deadline to do so has passed.
Greene's tendered amended complaint [R. 16] will be stricken from the record. Greene did not seek permission to file it, which is required at this juncture of the case. See Fed.R.Civ.P. 15(a)(2). And Greene, while he proceeds pro se, has sufficient experience litigating in the federal courts to be well aware of the applicable rules. See Greene v. Buster, No. 6: 20-CV-128-DLB-HAI (E.D. Ky. 2020) []. Greene's litigation experience, which includes extensive pre-trial motion practice, would also have made plain to him that an amended complaint will not independently serve as a substantive response to a motion. See id.; see also Kensu v. Mich. Dept. of Corr., No. 21-1802, 2022 WL 17348384, at *4 (6th Cir. Dec. 1, 2022) () (cleaned up) and Greene v. USA, No. 6: 19-CV-24-GFVT (E.D. Ky. 2019), aff'd, No. 21-05398 (Sept. 13, 2022). Greene has failed to file a substantive response to the motion of the United States as he was expressly directed to do. The Court will therefore dismiss Greene's complaint for failure to prosecute and failure to comply with an Order of the Court.
The United States' motion to dismiss Greene's complaint for lack of subject matter jurisdiction also appears to be well taken for the reasons set forth in its motion. As the Court previously explained, when a plaintiff fails to respond to a defendant's dispositive motion, whether under Civil Rule 12 or 56, the Court may grant the motion if the moving party has discharged his initial burden showing an entitlement to relief based upon the existing record. Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir. 1991). Because Greene did not file a substantive response to the United States' motion, the Court accepts its factual assertions as true. Guarino v. Brookfield Tp. Trustees, 980 F.2d 399, 404-05 (6th Cir. 1992) ( ).
Greene's complaint began with conclusory allegations that unnamed staff members employed by the Bureau of Prisons physically and sexually assaulted unnamed inmates on a routine basis. He then asserted that BOP attorney Joshua Billings and Assistant United States Attorney Callie Owen permitted staff to have access to security footage, and that they also provided advice to BOP staff members about how to hide and/or destroy evidence (including and video footage) of their misconduct. Greene alleged that they “assisted in the destruction, concealment of pertinent evidence relevant to the vindication of plaintiff's rights,” but he made no allegations indicating what evidence was destroyed or explaining how and when the attorneys were involved. [R. 1 at 1-2]
Greene's complaint did include more specific allegations. He stated that in May 2019, the BOP “negligently” assigned officer Weiss to investigate Greene's allegation of misconduct against BOP officer Godsbury, despite the fact that the two officers were friends with one another. Id. at 3. Greene contended that as a result, in June 2019, BOP officers Buster, Gabbard, and Worley removed him from his cell and then physically and sexually assaulted him. Specifically, he stated that the officers threw him to the floor without justification, punched him in the face, and one of them put his finger in Greene's anus. He further complained that the officers intentionally fastened his restraints too tightly, causing injury, and that Lt. Salmon “negligently” permitted them to do so. Id. at 3-4. Salmon also refused to allow Greene to be taken to the medical department so that a rape kit could be used to test him, an act he characterized as negligence. [R. 1 at 4] Greene contended that all four officers engaged in an “abuse of process” by charging him with disciplinary offenses for his assertedly aggressive behavior. [R. 1 at 4-5] Greene asserted a wide variety of claims including assault, battery, negligence, failure to protect, negligent supervision, sexual assault, and abuse of process, all pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. [R. 1 at 1, 5] The BOP rejected Greene's request for administrative settlement of his claims on November 23, 2021. [R. 1-1 at 1-2] Greene signed and dated his complaint May 19, 2022. [R. 1 at 5]
The government presents a facial attack upon the sufficiency of the allegations in Greene's complaint to establish subject matter jurisdiction. See [R. 12-1 at 5] The government concedes that while Greene's complaint pleads several intentional tort claims, the exception for intentional torts found in 28 U.S.C. § 2680(h) does not apply because the officers alleged to have committed them are law enforcement officers. Id. at 7-9. But it nonetheless contends that the actions alleged to have been committed by Buster, Gabbard and Worley - including the physical assault, the sexual assault, the excessive tightening of hard restraints, abuse of process, and intentional infliction of emotional distress - were committed outside the scope of their employment as BOP officers because they amounted to intentional torts. [R. 12-1 at 9-13] If so, claims based upon this conduct fall outside the purview of the FTCA, which waives sovereign immunity only for claims based upon “the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1); Flechsig v. United States, 991 F.2d 300, 302 (6th Cir. 1993).
The Court may decide the question, although raised in a motion to dismiss without the benefit of discovery, because “whether an employee was acting within the scope of his employment is a question of law, not fact, made in accordance with the law of the state where the conduct occurred.” L.C. v. United States, No. 5:21-CV-00124-GFVT, 2022 WL 1179400, at *4 (E.D. Ky. Apr. 19, 2022) (quoting RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1143 (6th Cir. 1996)).
B.A. v. United States, No. 5: 21-CV-106-DCR, 2021 WL 4768248, at *2 (E.D. Ky. Oct. 12, 2021). Applying this test, this Court and others have consistently found that “a sexual assault is not within the scope of employment because there is no conceivable way that intentionally committing sexual assault can be motivated by a desire to serve the employer.” Id. at *3 (collecting cases). The sexual assault alleged by Greene therefore plainly falls outside the scope of the officers' employment, and any claim predicated upon it must be dismissed.[1]
The remaining intentional torts - including physical assault and battery, excessive restraint, and “abuse of process” - present a closer question. Nonetheless under the facts of this case the same result obtains. Unlike a sexual assault, the physical conduct involved when a prison security guard attempts to bring a...
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