Smith v. Brown

• Decision Date: 27 October 2017
• Docket Number: 17 Civ. 2743 (GWG)
• Citation: 296 F.Supp.3d 648
• Parties: Robin SMITH, Plaintiff, v. Dedric BROWN, Defendant.
• Court: U.S. District Court — Southern District of New York

296 F.Supp.3d 648

Robin SMITH, Plaintiff,

v.Dedric BROWN, Defendant.

17 Civ. 2743 (GWG)

United States District Court, S.D. New York.

Signed October 27, 2017

Robin Smith, Brooklyn, NY, pro se.

Lauren Almquist Lively, United States Attorney's Office, New York, NY, for Defendant.

OPINION AND ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge

Defendant Dedric Brown moves to substitute the United States of America (the "United States" or "Government") as defendant in this case and to dismiss the Amended Complaint filed by pro se plaintiff Robin Smith for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).¹ For the reasons stated below, Brown's motion is granted and the case is dismissed.

I. FACTS

A. Background

Both Smith and Brown were Immigration Service Officers ("ISOs") for the United States Citizenship and Immigration Services ("USCIS") Naturalization Unit in December 2014. See Compl ¶¶ 1, 3, 5; Declaration of Phillip A. Savage, dated June 21, 2017 (attached as Ex. 1 to Def. Mem.) ("Savage Decl."), ¶ 4. On Thursday, December 11, 2014, from 2:00 p.m. to 4:00 p.m., the USCIS Naturalization Unit held its holiday party in the Unit's waiting room. See Compl. ¶ 3. The party, held annually, serves to promote collegiality among USCIS employees and to boost employee morale. See Savage Decl. ¶¶ 6, 8. USCIS management selects the date of the party and solicits volunteers for a planning committee that then coordinates party logistics, including the provision of food and games. See id. ¶ 9. While the committee consists of both supervisory and non-supervisory employees, USCIS management is aware of and exercises authority over committee decision making. See id. ¶¶ 9, 10. Brown served on the planning committee, and Edna Baquie, a first-line supervisor and co-chair of the planning committee, asked Brown if he would volunteer to organize and run the games at the party, a regular feature of the Unit's holiday parties. See Compl. ¶ 5; Declaration of Edna Baquie, dated June 22, 2017 (attached as Ex. 2 to Def. Mem.) ("Baquie Decl."), ¶ 3; Savage Decl. ¶¶ 10–11. Brown agreed and suggested to the committee a game involving beaded necklaces, in which participants would be told not to use a particular word and would forfeit their necklaces if they did so. See Compl. ¶ 7; Baquie Decl. ¶ 4.

B. Allegations in the Complaint

The following is a summary of the allegations in the complaint:

At the party, only members of the Naturalization Unit were present. Compl. ¶ 4. Brown was part of a group of ISOs who "are known for bringing alcohol to these parties." Id. ¶ 6. "This party was similar to other parties. [Brown's] eyes were glassy, but his breath didn't smell like alcohol." Id. At approximately 2:30 p.m., Brown suggested that the people at the party play a game in which "[p]articipants were required to wear Mardi Gras beads, and if someone said a certain word in conversation, one had to give his or her Mardi Gras beads to the other person in the conversation." Id. ¶ 7. Smith played the game with one of her coworkers, ISO Dawn Panetta. Id. ¶ 8. During Smith's conversation with Panetta, Brown approached Smith and aggressively demanded that she give her beads to Panetta as part of the game. Id. ¶ 9. Because Brown was acting aggressively, Smith ignored him and walked away. Id.

Five minutes later, Brown approached Smith and again demanded that she give her beads to Panetta. Id. ¶ 11. After Smith "ran out of the Room to get away from" Brown, Brown said "[y]ou can run but you can't hide!" Id. ¶¶ 11–12.

Seven minutes later, Smith returned to the room and gave all but one of her beads to ISO Panetta. Id. ¶ 13. When Brown saw that Smith was still wearing a beaded necklace, he began to yell at her, demanding that she give Panetta all of her beads. Id. ¶ 14. Smith ignored Brown's demands and placed her hands around her single beaded necklace as she spoke to Panetta. Id. ¶ 15.

Brown put his hands over Smith's hands and demanded that she "let the beads go." Id. ¶ 16. Surprised by Brown's actions, Smith told Brown repeatedly to stop grabbing her hands. Id. ¶ 17. When Brown refused to remove his hands, Smith asked him: "What are you doing?" Id. Brown responded by demanding that she let go of the beads. Id. Smith told Brown to stop by saying "[y]ou are taking this too far" and "I am a woman." Id. ¶ 18. But Brown refused to remove his hands from Smith's neck. Id. After 7 minutes, Smith called for help. Id. ¶ 20. When another worker approached, Brown "pulled down on" Smith's hands, causing the beaded necklace around her neck to break and her arm to be scratched. Id. ¶ 22.

Immediately after the incident, Smith felt pain around her neck. Id. ¶ 23. She visited a nurse, complaining of severe neck pain and that she was having trouble holding her head upright. Id. ¶ 26. Smith later went to a hospital to have her neck and arm examined. Id. ¶ 27. She was given a soft cervical collar to wear for 3–4 weeks and was prescribed Robaxin

, a pain killer. Id. ¶ 28.

C. Post–Incident Events

Smith was out of work for 45 hours, during which she received benefits under the Federal Employees Compensation Act, 5 U.S.C. §§ 8101 et seq., ("FECA"). See Compl. ¶ 30; Declaration of Julia A. Tritz, dated July 28, 2017 (Docket # 22) ("Tritz Decl."), ¶¶ 2, 7; Smith Official Timesheets (attached as Ex. B to Tritz Decl.). The Office of Workers' Compensation Programs ("OWCP") also reimbursed her for her medical expenses, totaling $485.94, from January 5, 2015 to April 30, 2015. See Tritz Decl. ¶ 6. These were short-term benefits, which did not require a formal adjudication of eligibility. See Tritz Decl. ¶ 5. After this suit was filed, OWCP issued a formal determination accepting Smith for FECA coverage. See id. ¶ 10; Office of Workers' Compensation Programs Acceptance Letter, dated July 12, 2017 (attached as Ex. D to Tritz Decl.) ("Acceptance Letter").

On March 8, 2017, two years and three months after the incident, Smith filed a summons and complaint in New York County Civil Court, naming Brown as the defendant. See Notice of Removal, filed Apr. 17, 2017 (Docket # 1) ("Removal Notice"); Summons with Endorsed Complaint, filed Apr. 17, 2017 (attached as Ex. A to the Removal Notice). The Government removed the action to this court on April 17, 2017, pursuant to 28 U.S.C. § 2679(d)(2), certifying that Brown was acting in the scope of his employment during the time of the incident. See Removal Notice; Certification of Joon H. Kim, Acting United States Attorney for the Southern District of New York, dated Apr. 13, 2017 (attached as Ex. B. to Removal Notice) ("Kim Cert.").

On May 22, 2017, Smith filed an amended complaint. See Compl. She moved by letter the same day to have this Court review the Government's certification that Brown was acting within the scope of his employment.

II. DISCUSSION

The Government argues that the United States should be substituted for defendant Brown, because it has certified that Brown's actions fell within the scope of his employment. See Def. Mem. at 4–5. The Government further argues that once this certification is accepted, the complaint must be dismissed for lack of subject matter jurisdiction. Def. Mem. at 12. Smith challenges the Government's certification, see Pl. Letter, and also opposes its motion to dismiss, see Pl. Response at 16.

We next review whether the United States should be substituted as a party. We then consider whether the Court has subject matter jurisdiction over this action.

A. Certification Under 28 U.S.C. § 2679

1. Legal Standard for Certification Under the Federal Tort Claims Act ("FTCA")

28 U.S.C. § 2679(b)(1), part of the enactment commonly known as the "Westfall Act," provides:

The remedy against the United States provided by [the FTCA] for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee's estate is precluded without regard to when the act or omission occurred.

28 U.S.C. § 2679(b)(d)(1) further provides:

Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.

As the Supreme Court has explained, "[w]hen a federal employee is sued for wrongful or negligent conduct, the [Westfall] Act empowers the Attorney General to certify that the employee ‘was acting within the scope of his office or employment at the time of the incident out of which the claim arose.’ " Osborn v. Haley, 549 U.S. 225, 229–30, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007) (citing § 2679(d)(1)–(2) ). Here, at the time it removed this case to federal court, the Government certified that Brown was acting within the scope of his employment with USCIS. See Kim Cert.²

If the certification remains in place, the United States is substituted as defendant and the federal employee obtains immunity from any personal liability. See 28 U.S.C. §§ 2679(b)(1), (d)(2) (2016) ; Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub. L. No. 100–694, § 2(b), 102 Stat. 4563, 4564 (1988) ("It is the purpose of this Act to protect Federal employees from personal liability for common law torts committed within the scope of their employment."); see also Hui v....