Lee v. U.S.

• Decision Date: 07 September 2001
• Docket Number: No. 1:00CV1072.,1:00CV1072.
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Derrick Anthony LEE, Plaintiff, v. UNITED STATES of America, Defendant.

171 F.Supp.2d 566

Derrick Anthony LEE, Plaintiff, v. UNITED STATES of America, Defendant.

No. 1:00CV1072.

United States District Court, M.D. North Carolina.

September 7, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Derrick Anthony Lee, Greensboro, NC, pro se.

James A. Dickens, Greensboro, NC, for Plaintiff.

John W. Stone, Office of the U.S. Attorney, Greensboro, NC, for United States.

MEMORANDUM OPINION

BEATY, District Judge.

This matter comes before the Court on Defendant United States of America's Motion to Dismiss, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, and in the alternative, for Summary Judgment, pursuant to Rule 56 [Document # 3]. This matter is also before the Court on Plaintiff Derrick Anthony Lee's Motion to Remand this matter to the Superior Court of Guilford County, North Carolina [Document # 8]. For the reasons that follow, Plaintiff's Motion to Remand is DENIED. Furthermore, Defendant's Motion to Dismiss is GRANTED, thus rendering Defendant's alternative Motion for Summary Judgment moot.

I. FACTUAL AND PROCEDURAL BACKGROUND

This action arises out of an alleged assault on Derrick Anthony Lee ("Plaintiff"). According to Plaintiff, his supervisor, Paul Stokes ("Stokes"), committed various acts of assault and battery upon him on July 17, 1999, at the United States Post Office Bulk Mail Center in Greensboro, North Carolina. At the time of the alleged event, both Plaintiff and Stokes were employees of the United States Postal Service. Specifically, Plaintiff was a craftsperson under Betty Berry ("Berry"), Supervisor of Distribution Operations, and was also a union steward for the American Postal Worker's Union, AFL-CIO. Stokes was the Manager of Distribution Operations for the Bulk Mail Center. As to the relevant facts leading up to the alleged torts, Plaintiff asserts that on July 13, 1999, four days prior to the assaults and batteries in question, Kevin Carlton ("Carlton"), Bruce Pemberton ("Pemberton"), Betty Smith, another Supervisor of Distribution Operations at the Bulk Mail Center ("Smith"), and Plaintiff met with Stokes to discuss a grievance that had been earlier filed by Plaintiff. (Compl. ¶ 6.) During the meeting, Plaintiff informed Stokes that, while Stokes was away on vacation, Smith had violated union regulations by "upgrading" an employee and performing "craft work." (Id. at ¶ 8.) According to Plaintiff, because of a longstanding friendship that Stokes had with Smith, Stokes became angry at these comments and informed Plaintiff that he or Smith could upgrade whomever they wanted for as long as they wanted. (Id. at ¶ 9.) Plaintiff also alleges that Stokes advised him that he could file additional grievances with respect to the issue of upgrades, if he so desired. In response, Plaintiff reminded Stokes that Stokes' superior, Plant Manager H.E. Puckett, had recently instructed Stokes to reduce the number of grievances that were being filed by union stewards. According to Plaintiff, Stokes replied that he "didn't give a damn" about what Puckett had said. (Id. at ¶ 12.)

On July 16, 1999, Plaintiff and Jim Isenhart, another union steward, relayed Stokes' comments to Puckett. (Id. at ¶ 13; Lee Aff. ¶ 39.) Plaintiff contends that, upon receiving this information, Puckett stated that he would talk to Stokes. (Compl. ¶¶ 14-15; Lee Aff. ¶ 40.) However, Plaintiff has presented no evidence as to whether Puckett actually spoke to Stokes concerning this matter prior to the alleged assaults.

On July 17, 1999, Plaintiff discussed with Smith another set of grievances that he had, at a Step-One meeting. In this meeting, Plaintiff alleges that Smith implied several times that Plaintiff had lied on her on several occasions. Plaintiff further alleges that, at some point during this meeting, Smith directly called him a "liar." (Compl. ¶ 17.) According to Plaintiff, he responded to this attack by asking Smith if she had "forgotten to take her medication or had taken too much," thus causing her memory to go bad. (Lee Sworn Statement at 1; Smith Sworn Statement at 1.) At this point, Smith suggested that both she and Plaintiff meet with Stokes to discuss the escalating nature of the situation.¹ (Lee Sworn Statement at 1; Smith Sworn Statement at 1.) In accordance with Smith's suggestion, Plaintiff and Smith met with Stokes.

When Smith and Plaintiff entered Stokes' office, Plaintiff alleges that Stokes began pacing the floor and yelling at Plaintiff, "Are you a doctor? What are you doing asking about her medication?" (Compl. ¶ 22.) After additional exchanges took place between Stokes and Plaintiff, Plaintiff alleges that Stokes intentionally hit him by grabbing the office door with one hand and slamming it forcefully into Plaintiff's right shoulder and back area. (Lee Aff. ¶ 21; Lee Sworn Statement at 1.) Once the door was closed, Plaintiff alleges that Stokes continued to chastise him for the comments that he made to Smith. At the conclusion of the meeting, Plaintiff alleges that, as he was on his way out of the door, Stokes pulled the door back and hit Plaintiff again. (Lee Sworn Statement at 1.) Despite these assertions, Plaintiff does not allege that he said anything at this point to Stokes about the alleged physical contact with his person by the door. Although Smith participated in this meeting, she alleges that she never saw Defendant hit Plaintiff with the door during this time. (Smith Sworn Statement at 1.) According to Plaintiff, Smith witnessed the entire event.

After Plaintiff left the meeting with Stokes, he alleges that he met with Berry and requested that he be allowed to speak with a union steward to report the incident. (Lee Aff. ¶ 27; Lee Sworn Statement at 2.) According to Plaintiff, Berry refused the request. However, approximately five minutes later, Berry brought Plaintiff back into Stokes' office in an attempt to resolve the matter. (Lee Aff. ¶ 30.) After Berry left Stokes' office, Stokes again addressed both Plaintiff's comments about Smith's medication and proper protocol with respect to grievances. Stokes then instructed Plaintiff to return to his section. Despite Stokes' instruction, Plaintiff replied that he was still on steward duty time. At this point, Plaintiff alleges that Stokes again became angry, grabbed the door with both hands, swung it open, and hit Plaintiff again, this time, on the left shoulder. (Lee Aff. ¶ 32; Lee Sworn Statement at 3.) Plaintiff further alleges that he then said to Stokes that this was the second time that Stokes had hit him with the door. (Lee Aff. ¶ 33; Lee Sworn Statement at 3.) According to Stokes, this second encounter with the door, about which Plaintiff complains, never occurred.

After Plaintiff's second meeting with Stokes, Plaintiff returned to his duties. Later that day, Plaintiff alleges that he developed pain in his right shoulder, based upon the manner in which he was hit with the door. Upon informing Berry of his injury, Plaintiff alleges that Berry initially refused to allow him medical treatment. Plaintiff, nevertheless, was allowed to obtain treatment on July 19 and July 20, 1999. (Compl. ¶¶ 41-42.) Plaintiff has offered affidavits from his attending physicians, Sebastian J. Ciacchella and Larry W. Grosman, which generally state that Plaintiff sustained an injury to his right shoulder that appears to have been caused by a heavy metal object. (Ciacchella Aff. ¶¶ 13-14; Grosman Aff. ¶¶ 10-11.)

In light of the alleged foregoing events, Plaintiff filed a civil suit against Stokes in Guilford County Superior Court on July 17, 2000, alleging common law claims of assault and battery.² Stokes was served with the summons and complaint on September 29, 2000. On October 25, 2000, the Office of the United States Attorney for the Middle District of North Carolina filed a Notice of Removal of this case to the United States District Court for the Middle District of North Carolina. Additionally, the United States Attorney filed a Notice of Substitution of the United States of America ("Defendant") as Defendant. On October 26, 2000, the United States Attorney filed a Motion to Dismiss and in the Alternative for Summary Judgment, alleging that this Court lacks subject matter jurisdiction over Plaintiff's assault and battery claims. Specifically, Defendant alleges that this Court lacks subject matter jurisdiction in this case because claims for assault and battery are not cognizable against the United States under the Federal Tort Claims Act (FTCA) or under the Federal Employees Compensation Act (FECA).

On November 1, 2000, this Court entered an order of substitution, instructing that the United States replace Stokes as Defendant in this matter. This order was based upon certification by the United States Attorney that Stokes was acting within the scope of his employment as a United States postal employee at the time the alleged torts occurred. See 28 U.S.C. § 2679(d); 28 C.F.R. § 15.3. Plaintiff contests the substitution, alleging that substitution was improper, to the extent that Stokes was not acting within the scope of employment at the time of the alleged assaults and batteries. Given Plaintiff's assertion that the United States has been improperly substituted as the defendant in this action, Plaintiff has alleged that removal of the instant action was improper, and has moved to remand the same to state court. In light of Plaintiff's contentions, the issues of whether removal and substitution were proper will next be addressed in turn.

II. DISCUSSION

A. Removal

The first issue before this Court is whether removal of this case to federal district court was proper. Section 2679(d)(2) of Title 28 of the United States Code provides the mechanism by which the United States Attorney can certify that a federal employee was acting within the scope of his office or employment at the time of an alleged incident. Pursuant to § 2679(d)(2), upon certification by the Attorney General...