Johnson v. U.S.

Decision Date08 January 1999
Docket NumberNo. IP 97-1349-CB/S.,IP 97-1349-CB/S.
Citation47 F.Supp.2d 1075
PartiesSteven W. JOHNSON, Sandra G. Johnson, Plaintiffs, v. UNITED STATES OF AMERICA, United States Justice Department, United States Marshals Service and Unnamed Agents of the United States Marshal Service, Defendants.
CourtU.S. District Court — Southern District of Indiana

Marilyn A. Moores, Cohen & Malad, Indianapolis, IN, for plaintiffs.

Thomas E. Kieper, Assistant United States Attorney, Indianapolis, IN, for defendants.


BARKER, Chief Judge.

Plaintiffs brought this action against the United States under the Federal Tort Claims Act (the "FTCA"), seeking to recover for damages sustained to their home and property during the execution of an arrest warrant on a third party through the coordinated efforts of various law enforcement officials. This matter comes before the Court on: 1) Defendant United States' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) or in the alternative, for summary judgment under Federal Rules of Civil Procedure 12(b)(6) and 56; 2) Plaintiffs' motion to strike Defendant's motion for summary judgment; 3) Plaintiffs' motion to strike the sworn declaration of Gary Tingle; and 4) Plaintiffs' motion for leave to file an amended complaint. For the following reasons, Defendant's motion to dismiss Plaintiffs' claim under the FTCA is granted; Plaintiffs' motion to strike Defendant's motion for summary judgment is denied as moot; Plaintiffs' motion to strike the declaration of Gary Tingle is denied; and Plaintiffs' motion for leave to file an amended complaint is granted.


In early August 1995, Mr. Wayne Spears, his wife, and two children arrived at Plaintiffs' home. (Compl.¶ 1) Spears, who had been a high school friend of Plaintiff Steven Johnson ("Johnson"), told Johnson that he was moving his family back from Texas to Indiana and asked Johnson to allow him to park his motor home in Plaintiffs' driveway while Spears and his family sought new, more permanent quarters. (Compl.¶ 2) Johnson allowed the Spears family to park their motor home in Plaintiffs' driveway. (Id.)

On August 9, 1995, the United States District Court for the Western District of Texas issued an arrest warrant for Spears, charging him with the violation of a pre-release agreement related to firearms charges in Texas. (Def.Ex. 1, Tingle Decl. ¶ 3) The United States Marshals Service (the "Marshals") located Spears after his move to Indianapolis and began surveillance. (Tingle Decl. ¶ 4)

On August 15, 1995, the Marshals decided to raid Spears' trailer. (Compl. ¶ 4) Earlier that day, Spears' wife and children had departed the Johnson property in a van. (Tingle Decl. ¶ 5) At the time of the commencement of the raid, the Johnsons were not at home. (Compl. ¶ 5) In order to arrest Spears, the Marshals sought tactical support from the Marion County Sheriff's Department SWAT Team. (Tingle Decl. ¶ 8) The Marshals failed to apprehend Spears in his trailer; instead, Spears fled into the Johnson home, where he barricaded himself and refused to surrender. (Compl. ¶ 5) In an attempt to force Spears from the residence, the Marshals fired approximately forty cans of tear gas into the home. (Compl. ¶ 6) Despite these efforts, Spears still refused to surrender. (Id.)

During the standoff, the Johnsons arrived home; however, they were not permitted by law enforcement personnel to intervene in an attempt to diffuse the situation. (Compl. ¶ 7.) By contrast, Spears' ex-wife, a resident of Greenwood, Indiana, contacted law enforcement personnel on the scene and was permitted an opportunity to speak with her ex-husband. (Tingle Decl. ¶ 21) Her pleas apparently encouraged Spears to surrender after a siege that had lasted for approximately eight hours. (Tingle Decl. ¶¶ 23, 24; see also Compl. ¶ 6)

On April 5, 1996, Plaintiffs filed a Notice of Tort Claim with the U.S. Marshal in compliance with the FTCA. (Compl. ¶ 11; see 28 U.S.C. § 2675) Subsequently, Plaintiffs filed this lawsuit on August 15, 1997, against several Defendants, including the United States Department of Justice, the United States Marshals Service and unnamed agents of the Marshals Service. The complaint alleged negligence under the FTCA as well as civil rights violations under 42 U.S.C. § 1983. Through ongoing discovery, claims under § 1983 have been eliminated. (Pls.' Motion to Substitute Proposed Amended Complaint ¶ 2) In addition, all claims under the FTCA involving Defendants other than the United States have been dismissed. (Court's July 17, 1998 Entry) Presently before the Court are Defendant's motion to dismiss the FTCA claim, Plaintiffs' motion to strike Defendant's motion for dismissal and supporting affidavit, and Plaintiffs' motion to amend their complaint.


Where a movant has challenged a district court's subject matter jurisdiction, the party invoking jurisdiction has the burden of establishing that all jurisdictional requirements have been satisfied. See Kontos v. United States Dept. of Labor, 826 F.2d 573, 576 (7th Cir.1987); Marina Entertainment Complex, Inc. v. Hammond Port Authority, 842 F.Supp. 367, 369 (N.D.Ind.1994). See also Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir. 1979) ("the party invoking jurisdiction has the burden of supporting the allegations of jurisdictional facts by competent proof"). Disputes over material facts regarding the merits of the case will not prevent a court from determining jurisdictional issues. See Marina Entertainment Complex, 842 F.Supp. at 369.

When deciding a Rule 12(b)(1) motion, a court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff. See Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir.1995); Rueth v. United States Environmental Protection Agency, 13 F.3d 227, 229 (7th Cir.1993). Nevertheless, a court may look beyond the jurisdictional requirements of a complaint and consider whatever evidence has been submitted by the parties on the issue to determine whether subject matter jurisdiction exists. See Ezekiel, 66 F.3d at 897; Capitol Leasing Co. v. Federal Deposit Insurance Corp., 999 F.2d 188, 191 (7th Cir.1993); Alliance For Clean Coal v. Bayh, 888 F.Supp. 924, 929 (S.D.Ind.1995). Where the movant has challenged the factual allegations of the party invoking the district court's jurisdiction, the invoking party "must submit affidavits and other relevant evidence to resolve the factual dispute regarding the court's jurisdiction." Kontos, 826 F.2d at 576.

A. Defendant's Motion to Dismiss is Proper under Rule 12(b)(1)

The FTCA allows claims against the United States for money damages related to "injury or loss of property, or personal injury or death 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...." 28 U.S.C. § 1346(b); see Calderon v. United States, 123 F.3d 947, 948 (7th Cir.1997). The FTCA provides "a `broad waiver' of sovereign immunity;" yet, many types of tort claims have been exempted from the waiver. Calderon, 123 F.3d at 948 (citing Grammatico v. United States, 109 F.3d 1198, 1200 (7th Cir.1997)).

One of these exemptions is the discretionary function exception to the FTCA, which shields Government actors from liability arising from:

Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not the regulation be valid, or based upon the exercise or performance of 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). If this exception to the FTCA applies, the sovereign immunity of the United States remains intact, and dismissal of the action is proper on the basis of lack of subject matter jurisdiction. See Rothrock v. United States, 62 F.3d 196, 198 (7th Cir.1995); see also Calderon, 123 F.3d 947; see generally Grammatico, 109 F.3d 1198.

In the instant case, Defendant's motion focuses on the actions of certain U.S. Deputy Marshals involved with Spears' arrest and whether those actions fall within the discretionary function exception of the FTCA. Although Defendant invokes the correct standard of review for both dismissal under Rule 12(b) and summary judgment under Rule 56 (See Def.'s Motion to Dismiss at 6 n. 2), its substantive arguments rely solely on the contention that the discretionary function exception to the FTCA deprives the Court of subject matter jurisdiction, an assertion properly considered under Rule 12(b)(1), not under Rule 12(b)(6) or the standards for summary judgment under Rule 56. Thus, we construe Defendant's motions as a motion to dismiss.1

Two factors determine whether the discretionary function exception applies in an FTCA suit. See Rothrock, 62 F.3d at 198. First, the scrutinized action must involve "an element of judgment or choice" on the part of the federal employee. Id. (citing Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273, 113 L.Ed.2d 335 (1991)). Second, if the action does involve such judgment or choice, the issue becomes whether the judgment or choice in question were "of the kind that the discretionary function was designed to shield." Gaubert, 499 U.S. at 322-23, 111 S.Ct. 1267. Recent case law supports our conclusion that the conduct of the Deputy Marshals in this case falls within the discretionary function exception. "[The discretionary function exception] plainly was intended to encompass discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals." United States v. S.A. Empresa de...

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