Locke v. U.S., CIV. 00-1014.

Citation215 F.Supp.2d 1033
Decision Date29 July 2002
Docket NumberNo. CIV. 00-1014.,CIV. 00-1014.
PartiesAudrey LOCKE, Plaintiff, v. UNITED STATES of America, Defendant.
CourtUnited States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota

Brent Evan Newton, Asst. Fed. Pub. Defender, Houston, TX, Roland E. Dahlin, II, Fed. Public Defender, Brownsville, TX, for Darrell Eugene Alexander.

Darrell Eugene Alexander, Beaumont, TX, pro se.

S. Michael Bozarth, Office of Atty. Gen., Austin, TX, for Gary Johnson.

ORDER ON MOTION TO DISMISS

KORNMANN, District Judge.

BACKGROUND

[¶ 1.] Plaintiff brought this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq. Jurisdiction is alleged to exist pursuant to 28 U.S.C. § 1346. Plaintiff alleges in her amended complaint that Darrell DeCoteau ("DeCoteau"), then a Sisseton-Wahpeton Sioux tribal police officer, while acting within the scope of his employment, wrongfully assaulted plaintiff, then a tribal police dispatcher, by twice placing an air pistol to the back of her head and pulling the trigger. Plaintiff twice felt the puff of air on her neck. It is undisputed that the pistol was not capable of causing any physical injury. She would have known that after the first puff. Plaintiff also alleges claims of negligent and intentional infliction of emotional distress, negligent hiring and supervision, and negligently providing an unsafe workplace.

[¶ 2.] Defendant has admitted that the Sisseton-Wahpeton Sioux Tribe ("Tribe") operates the Sisseton-Wahpeton Sioux Tribe police department under an Indian Self-Determination Act contract with the Bureau of Indian Affairs ("B.I.A."), that DeCoteau was employed as a police officer, and that plaintiff was employed as a dispatcher at all times relevant. Defendant admitted the facts upon which plaintiff's assault claim is based1 but denies that DeCoteau was a federal officer or was acting within the scope of his law enforcement duties within the meaning of 28 U.S.C. § 2680 at the time of the alleged assaults.

[¶ 3.] Defendant filed a motion to dismiss for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1), and for failure to state certain claims upon which relief can be granted, pursuant to Fed. R.Civ.P. 12(b)(6). When considering a motion to dismiss, the district court must construe the complaint liberally and assume all factual allegations to be true. Whisman v. Rinehart, 119 F.3d 1303, 1308 (8th Cir.1997). Dismissal under Fed. R.Civ.P. 12(b)(6) is appropriate only when it appears beyond doubt that the plaintiff can prove no set of facts in support of her claims that would entitle her to relief. Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 445 (8th Cir.1995).

DECISION
I. JURISDICTION

[¶ 4.] "Federal courts are not courts of general jurisdiction and have only the power that is authorized by Article III of the Constitution and statutes enacted by Congress pursuant thereto." Marine Equipment Management Co. v. U.S., 4 F.3d 643, 646 (8th Cir.1993) (citing Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501, reh'g denied 476 U.S. 1132, 106 S.Ct. 2003, 90 L.Ed.2d 682 (1986), (citing in turn Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803))). "The threshold inquiry in every federal case is whether the court has jurisdiction" and the Eighth Circuit has "admonished district judges to be attentive to a satisfaction of jurisdictional requirements in all cases." Rock Island Millwork Co. v. Hedges-Gough Lumber Co., 337 F.2d 24, 26-27 (8th Cir.1964), and Sanders v. Clemco Industries 823 F.2d 214, 216 (8th Cir.1987).

[¶ 5.] A motion to dismiss for lack of subject matter jurisdiction challenges the court's power to hear the case. Mortensen v. First Fed. Savings and Loan Association, 549 F.2d 884, 891 (3rd Cir. 1977). Jurisdictional issues are for the court to decide and the court has broad power to decide its own right to hear a case. Osborn v. United States, 918 F.2d 724, 729 (8th Cir.1990) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). Because jurisdiction is a threshold question, judicial economy demands that the issue be decided at the onset. Osborn, 918 F.2d at 729.

[¶ 6.] "In order to properly dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of its averments." Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir.1993). Defendant presents at least one factual challenge to this court's jurisdiction. "The district court has the authority to consider matters outside the pleadings on a motion challenging subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)." Drevlow v. Lutheran Church, Mo. Synod, 991 F.2d 468, 470 (8th Cir.1993). See also Osborn v. United States, 918 F.2d at 729, n. 4 (citing Land v. Dollar, 330 U.S. 731, 735 & n. 4, 67 S.Ct. 1009, 1011 & n. 4, 91 L.Ed. 1209 (1947) and Satz v. ITT Fin. Corp., 619, F.2d 738, 742 (8th Cir.1980)).

[¶ 7.] The Eighth Circuit, in Osborn v. United States, delineated the standard of review for motions to dismiss under Fed. R.Civ.P. 12(b)(1):

[H]ere the trial court may proceed as it never could under 12(b)(6) or Fed. R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction — its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist.

Osborn v. United States, 918 F.2d at 730 (quoting Mortensen v. First Fed. Sav. & Loan Ass'n., 549 F.2d at 891). However, courts have also recognized that the jurisdictional issue and substantive issues can be so intertwined that a full trial on the merits may be necessary to resolve the issue. Id. (quoting Crawford v. United States, 796 F.2d 924, 928 (7th Cir.1986)). See also Whalen v. United States, 29 F.Supp.2d 1093, 1095-96 (D.S.D.1998). The parties have submitted affidavits and depositions in support of and in resistance to the motion to dismiss and the court will consider such evidence as it relates to the jurisdictional challenge.

A. Intentional Tort Exception to Federal Tort Claim Act Liability.

[¶ 8.] Defendant's first jurisdictional challenge is based upon the contention that DeCoteau was not a federal law enforcement officer at the time of the alleged assaults. The law enforcement functions of the Tribe are funded pursuant to a contract with the B.I.A. (known as a 638 contract because it is authorized by Pub.L. 93-638) under the Indian Self-Determination Education Assistance Act ("Self-Determination Act") as authorized by 25 U.S.C. § 450f. A November 5, 1990, amendment to that Act provides:

With respect to claims resulting from the performance of functions ... under a contract, grant agreement, or cooperative agreement authorized by the Indian Self-Determination and Education Assistance Act ... an Indian tribe, tribal organization or Indian contractor is deemed hereafter to be part of the Bureau of Indian Affairs in the Department of the Interior ... while carrying out any such contract or agreement and its employees are deemed employees of the Bureau ... while acting within the scope of their employment in carrying out the contract or agreement: Provided, That after September 30, 1990, any civil action or proceeding involving such claims brought hereafter against any tribe, tribal organization, Indian contractor or tribal employee covered by this provision shall be deemed to be an action against the United States and will be defended by the Attorney General and be afforded the full protection and coverage of the Federal Tort Claims Act ...

Pub.L. No. 101-512, Title III, § 314, 104 Stat.1915, 1959 (codified at 25 U.S.C. § 450f notes).

[¶ 9.] The admissions of the defendant in its answer have been set forth. Essentially, the defendant admits that DeCoteau was a "federal employee" and therefore his actions, under certain circumstances, may subject the United States to FTCA liability. Defendant asserts, however, that DeCoteau is not a "federal officer" and therefore FTCA liability does not attach for his intentional torts.

[¶ 10.] The FTCA excepts from tort claim liability

Any claim arising out of assault, battery ...

Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery ... For the purpose of this subsection, "investigative or law enforcement officer" means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.

28 U.S.C. § 2680(h). Defendant contends that DeCoteau was never issued a federal law enforcement Deputy Special Officer ("DSO") commission by the B.I.A. and, even if he had such a commission, he was not, at the time of the alleged assaults, authorized to execute a search, seize evidence, make an arrest for violations of federal law, or otherwise act under color of federal law.

[¶ 11.] "The proviso to 28 U.S.C. § 2680(h) waives the defense of sovereign immunity for suits brought against the United States for certain intentional torts committed by its law enforcement officers acting within the scope of their employment. Solomon v. United States, 559 F.2d 309 (5th Cir.1977). Waivers of sovereign immunity are to be strictly construed." Bates v. United States, 517 F.Supp. 1350, 1356 (W.D.Mo.1981), aff'd, 701 F.2d 737 (...

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