Stone v. United States, CIVIL ACTION NO. 3:19-0538
| Decision Date | 09 April 2020 |
| Docket Number | CIVIL ACTION NO. 3:19-0538 |
| Parties | JOHN ERIK STONE and MILYNDA DESIRAE STONE, Plaintiffs, v. UNITED STATES OF AMERICA, through its agency, HUNTINGTON VETERANS AFFAIRS MEDICAL CENTER of the Department of the Veterans Affairs, Defendant. |
| Court | U.S. District Court — Southern District of West Virginia |
This suit arises out of the United States of America's pursuit of criminal charges against plaintiff John Erik Stone. Having not been convicted, Stone seeks damages for malicious prosecution and other claims pursuant to the Federal Tort Claims Act (FTCA). The United States moves to dismiss for lack of subject-matter jurisdiction. ECF No. 20. Because the FTCA exempts Stone's claims, the Court GRANTS the United States' motion.
Stone and his wife, co-plaintiff Milynda Desirae Stone, allege the following facts.1 ECF No. 1. The United States Department of Veterans Affairs employed Stone at a VA Medical Center near Huntington, West Virginia. Id. ¶¶ 1, 3. Stone's co-worker, Ronnie Blankenship,2 informedStone that he was going to take a discarded, inoperable meat slicer from a VA Medical Center dumpster. Id. ¶¶ 25, 30. Stone helped Blankenship load the meat slicer into Blankenship's truck. Id. ¶¶ 31-32. He claims the VA has no policy prohibiting the taking of abandoned items from dumpsters and that VA police officers do not have authority to arrest an employee for doing so. Id. ¶ 36.
After refurbishing the meat slicer, Blankenship asked Stone to sell it on Facebook. Id. ¶¶ 43, 45. Several months later, VA police officer Darrell Booth posed as a potential buyer and contacted Stone. Id. ¶¶ 47, 51. Stone told Booth to contact Blankenship to arrange the sale. Id. ¶ 48. At the sale, VA police officers Booth and Joseph Wayman arrested Blankenship. Id. ¶ 56. Upon questioning Blankenship, the officers learned of Stone's involvement with the meat slicer and decided sufficient grounds existed to press charges against him. Id. ¶¶ 57-58.
Booth and Wayman filed a criminal complaint against Stone with the Magistrate Court of Wayne County, West Virginia, for a violation of West Virginia Code § 61-11-06 (). Id. ¶¶ 59, 66. VA Medical Center Director Brian Nimmo allowed Stone's prosecution to continue. Id. ¶¶ 72-73. The Magistrate Court eventually dismissed Stone's felony charge upon motion by the state. Id. ¶ 81. About two months later, Wayman filed another criminal complaint against Stone for petit larceny. Id. ¶ 86. Stone later moved to dismiss the charge for failure to prosecute, and the Magistrate Court granted the motion and dismissed the charge. Id. ¶¶ 108-09.
Stone now alleges four counts against the United States for damages under state law pursuant to the FTCA: malicious prosecution, intentional infliction of emotional distress, defamation, and loss of consortium. Id. ¶¶ 112-152. The United States moves to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). ECF No. 20.
Under Rule 12(b)(1), a federal court must dismiss a claim if the court lacks subject-matter jurisdiction. A party can challenge subject-matter jurisdiction under Rule 12(b)(1) in two ways: "facial attacks" and "factual attacks." Thigpen v. U.S., 800 F.2d 393, 401 n.15 (4th Cir. 1986), rev'd on other grounds, Sheridan v. U.S., 487 U.S. 392 (1988). A "facial attack" argues the complaint's allegations are insufficient to sustain the court's jurisdiction. Id. If a party makes a "facial attack," the court must proceed as it would on a motion to dismiss for failure to state a claim under Rule 12(b)(6). Id. The court accepts the complaint's allegations as true and does not consider materials outside the pleadings. Id. ().
Alternatively, a "factual attack" challenges the truth of the complaint's allegations. Id. The court should "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. Co. v. U.S., 945 F.2d 765, 768 (4th Cir. 1991) (). The court should apply the summary judgment standard, under which "the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists." Id. (citation omitted). Dismissal is only appropriate if "the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id. (citation omitted).
The United States does not explain its intended 12(b)(1) standard, and its Motion contains elements of both a facial and factual attack. Considered as a whole, the Motion is best treated as a factual attack. The United States argues key allegations are false, including Stone's assertions thatno policy prohibits VA employees from taking abandoned property and that VA police officers have no authority to arrest employees for removing discarded property. ECF No. 21, at 11 (citing ECF No. 1 ¶¶ 28, 36). To correct these allegations and argue a lack of subject-matter jurisdiction, the United States relies on significant extrinsic evidence, to which Stone responds with his own evidence. The parties thus ask the Court to move beyond the corners of the Complaint and gauge the sufficiency of their evidence. Therefore, the summary judgment standard applies, and dismissal is only appropriate if "the material jurisdictional facts are not in dispute" and the United States "is entitled to prevail as a matter of law." Richmond, Fredericksburg & Potomac R. Co., 945 F.2d at 768 (citation omitted).
The Federal Tort Claims Act does not create a new cause of action. Medina v. U.S., 259 F.3d 220, 223 (4th Cir. 2001). Rather, the statute waives sovereign immunity and "permits the United States to be held liable in tort in the same respect as a private person would be liable under the law of the place where the act occurred." Id. (citing 28 U.S.C § 1346(b)). Section 2680, however, exempts certain categories of claims from the waiver. See 28 U.S.C. § 2680(a)-(n). The United States argues Stone's claims are exempted and therefore precluded by sovereign immunity. See ECF No. 21.
Count III of the Complaint is a defamation claim alleging the United States "communicated false, exaggerated, and defamatory statements about the Plaintiff to other Huntington VA employees and people in the community." ECF No. 1 ¶ 138. However, 28 U.S.C § 2680(h) bars any claim under the FTCA arising out of "libel, slander, [or] misrepresentation," which includesdefamation. See Talbert v. U.S., 932 F.2d 1064, 1066 (4th Cir. 1991). Sovereign immunity therefore applies, and the Court dismisses Count III.
The United States also moves to dismiss Counts I, II, and IV based on the FTCA's discretionary function exception. See ECF No. 21. This exception excludes from the FTCA's waiver of sovereign immunity:
[a]ny claim based upon an action or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the federal agency or an employee of the Government, whether or not the discretion involved be abused.
28 U.S.C. § 2680(a) (emphasis added). The plaintiff bears the burden of showing the discretionary function exception does not apply. Welch v. U.S., 409 F.3d 646, 650-51 (4th Cir. 2005).
The Supreme Court established a two-part test to determine whether the exception bars a suit under the FTCA. See U.S. v. Gaubert, 499 U.S. 315 (1991); Berkovitz v. U.S., 486 U.S. 531 (1988). First, the court must determine whether the conduct at issue was discretionary, involving "an element of judgment or choice." Berkovitz, 486 U.S. at 536. An act is not discretionary if a mandatory federal statute, regulation, or policy prescribes a specific course of action. Baum v. U.S., 986 F.2d 716, 720 (4th Cir. 1993). When a mandatory directive exists, the discretionary function exception does not apply if the plaintiff can show the actor failed to adhere to the directive. Id. (citing Berkovitz, 486 U.S. at 536).
If an act is discretionary, the court proceeds to the second prong and determines whether the challenged conduct is "based on public policy considerations." Berkovitz, 486 U.S. at 531. The court focuses on "the nature of the actions taken and on whether they are susceptible to policy analysis," rather than "the agent's subjective intent in exercising the discretion." Gaubert, 499 U.S.at 325. Importantly, "[w]hen established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion." Id. at 324.
The United States begins its discussion of the test's first prong by challenging several allegations in the Complaint. ECF No. 21, at 11. Specifically, the United States challenges Stone's claims that no policy prohibits VA employees from taking abandoned property and that VA police officers have no authority to arrest employees for removing discarded property. Id. (citing ECF No. 1 ¶¶ 28, 36). To the contrary, the United States cites 38 C.F.R. § 1.218(a)(3), which prohibits "the willful destruction, damage, or removal of Government property or any part thereof ...
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