Lusk v. Norton, Civil Action 8:21-cv-1976-DCC-KFM

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
PartiesDawn Lusk, Plaintiff, v. Bradley Norton, April Peppers, Chris Merchant, The Town of Salem, and The United States of America, Defendants.
Docket NumberCivil Action 8:21-cv-1976-DCC-KFM
Decision Date31 August 2022

Dawn Lusk, Plaintiff,

Bradley Norton, April Peppers, Chris Merchant, The Town of Salem, and The United States of America, Defendants.

Civil Action No. 8:21-cv-1976-DCC-KFM

United States District Court, D. South Carolina

August 31, 2022



This matter is before the court on the motion to dismiss of April Peppers, Chris Merchant, and the United States of America (“the federal defendants”), pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6) (doc. 68). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases involving pro se litigants and submit findings and recommendations to the district court.[1]


In her amended complaint, the plaintiff alleges that on March 6, 2020, she visited the Salem Post Office to collect her mail (doc. 37, amend. comp. ¶ 15). She discovered that several pieces of mail she expected to receive were not in her mailbox and had been either lost or misplaced (id.). The plaintiff informed post office employees that several items of her mail were missing and were likely placed in the wrong mailbox. She asked employees for assistance in locating the items. The employees, who had music playing at a loud volume, continued to chat and to listen to music instead of assisting the plaintiff. The plaintiff suggested that the employees turn down the volume of the music so


that they could better focus on their work (id. ¶ 16). The plaintiff alleges the employees laughed at her and turned the volume up in an attempt to disrespect and demean her (id.).

The plaintiff alleges that defendant Chris Merchant, Postmaster for the Salem Post Office, then opened the double-locked doors in order for defendant April Peppers, a post office employee supposedly known by her exotic dancing name “Hot Pepper,” to enter the customer's area of the post office and confront the plaintiff. The plaintiff claims Merchant violated policy by unlocking the double-locked doors and allowing Peppers to confront the plaintiff (doc. 37, amend. comp. ¶ 17). Peppers allegedly shouted profanity at the plaintiff before physically attacking her. Peppers purportedly struck the plaintiff in the head, knocked the plaintiff to the ground, and kicked the plaintiff while she was lying on the ground (id. ¶ 18). The plaintiff alleges Peppers violated her Fourth Amendment and other constitutional rights (id.). The plaintiff alleges Merchant knew or should have known that Peppers was going to verbally and physically attack her before allowing Peppers to confront her (id. ¶ 19). She alleges that Merchant facilitated a situation where Peppers was virtually certain to attack her and that Merchant allowed employees to routinely violate policies and allowed dangerous employees to act aggressively toward customers (id. ¶¶ 19-20). The plaintiff claims she asked Merchant for help, but he refused to call for help and also refused to allow her to use a telephone to call for help herself. Merchant then instructed the plaintiff to leave the post office and grabbed the plaintiff by her ankles and held her as if he were going to drag her out of the post office while she was still on the ground (id. ¶ 21).

Following the incident, the plaintiff alleges that she attempted to obtain related documents pursuant to a Freedom of Information Act (“FOIA”) request. She alleges the United States Postal Service (“USPS”) violated the FOIA by improperly withholding documents “in that the agency responded to the plaintiff's request by estimating a minimum cost of $468,048.00 for responsive documents” (doc. 37, amend. comp. ¶ 81).


The plaintiff asserts six causes of actions in her amended complaint. The first, second, fourth, and sixth causes of action are alleged against one or more of the federal defendants (doc. 37, amend. comp. ¶¶ 32-82). The federal defendants have moved to dismiss all four of these causes of action.


Motion to Dismiss for Lack of Subject Matter Jurisdiction

Rule 12(b)(1) allows a defendant to move to dismiss an action for lack of subject matter jurisdiction. When presented with a 12(b)(1) motion, the court “is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); see also Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (determination of subject matter jurisdiction “may be based on the court's review of the evidence”). “The court may dismiss a case for lack of subject matter jurisdiction on any of the following bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Friends of Dereef Park v. Nat'l Park Serv., C. A. No. 2:13-cv-03453-DCN, 2015 WL 12807782, at *4 (D.S.C. Apr. 13, 2015) (internal citations omitted). The plaintiff has the burden of proving that subject matter jurisdiction exists. Evans v. B.F. Perkins Co., a Div. of Standex Intern. Corp., 166 F.3d 642, 647 (4th Cir. 1999) (citation omitted).

Motion to Dismiss for Failure to State a Claim

“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Rule 8(a) sets forth a liberal pleading standard, which requires only a" ‘short and plain statement of the


claim showing the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what . . . the claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,47 (1957)). “In assessing the sufficiency of a complaint, [the court] assume[s] as true all its well-pleaded facts and draw[s] all reasonable inferences in favor of the plaintiff.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (citing Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 253 (4th Cir. 2009)). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'" Robinson v. American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

“In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). The court may consider such a document, even if it is not attached to the complaint, if the document “was integral to and explicitly relied on in the complaint,” and there is no authenticity challenge. Id. (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). See also Int'l Assn of Machinists & Aerospace Workers v. Haley, 832 F.Supp.2d 612, 622 (D.S.C. 2011) (“In evaluating a motion to dismiss under Rule 12(b)(6), the Court . . . may also ‘consider documents attached to . . . the motion to dismiss, so long as they are integral to the complaint and authentic.'”) (quoting Sec'y of State for Def. v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)). Rule 12(d) states: “If on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule


56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d).


First Cause of Action

In the first cause of action in her amended complaint, the plaintiff alleges liability for negligence, gross negligence, and recklessness pursuant to the Federal Tort Claims Act (“FTCA”) (doc. 37, amend comp. ¶¶ 32-45). The federal defendants argue that this cause of action against the United States is barred by 28 U.S.C. § 2680(h), which precludes claims that arise out of assault and battery. The undesigned agrees.

“It is elementary that the United States, as sovereign, is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.” United States v. Mitchell, 445 U.S. 535, 538, (1980) (citation omitted). Through the FTCA, Congress has provided a limited waiver of sovereign immunity, allowing the United States to be sued for injuries resulting from certain tortuous acts committed by employees of the Government acting within the scope of their employment, when a private person would be liable for such conduct under state law. 28 U.S.C. § 1346(b)(1). The FTCA excepts certain conduct from the waiver of sovereign immunity, which exceptions are set forth in the statute. Id. § 2680, “Exceptions.” The foregoing statute precludes the imposition of liability for “any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” Id. § 2680(h). The plaintiff has the burden “in an FTCA case to prove an unequivocal waiver of sovereign immunity and the existence of subject matter jurisdiction.” LeRose v. United States, 285 Fed.Appx. 93, 96 (4th...

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