Taylor v. United States

• Decision Date: 31 March 1981
• Docket Number: Civ. A. No. 80-378-9.
• Citation: 513 F. Supp. 647
• Court: U.S. District Court — District of South Carolina
• Parties: Joe Earl TAYLOR, as Administrator of the Estate of Thomas S. Taylor, Plaintiff, v. UNITED STATES of America, Defendant.

513 F. Supp. 647

Joe Earl TAYLOR, as Administrator of the Estate of Thomas S. Taylor, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 80-378-9.

United States District Court, D. South Carolina, Columbia Division.

March 31, 1981.

William F. Able, Michael A. Pulliam, Columbia, S. C., for plaintiff.

Joseph A. Wilson, II, Asst. U. S. Atty., Columbia, S. C., for defendant.

ORDER

CHAPMAN, District Judge.

This matter is before the Court upon the defendant's motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. The defendant seeks an Order dismissing this action on the grounds that the court lacks jurisdiction over the subject matter of the action and that the complaint fails to state a claim upon which relief can be granted. The defendant alleges that certain exceptions to the Federal Tort Claims Act (hereinafter "FTCA") bar the plaintiff's action. The defendant also claims that even if the action is not barred by the FTCA, that no act by the defendant can be said to be the proximate cause of any injuries sustained by plaintiff or his decedent.

This action arises out of the brutal murders of two Columbia teenagers in the fall of 1977. The three men charged with the murders have either pleaded guilty or have been convicted of the October 29, 1977, murders of Thomas Taylor, age 17, and Carlotta Hartness, age 14.

The perpetrators, J. C. Shaw, James T. Roach, and Eugene Mahaffey had been spending that Saturday morning using drugs and drinking beer. Sometime early in the afternoon, according to Mahaffey, the three decided to ride around and "see if we could find a girl to rape."

They stopped at Polo Park, a baseball park located northeast of Columbia in a rural area off Alpine Road. They came upon a parked car occupied by Thomas Taylor and Carlotta Hartness.

Shaw, who was the driver of the car, pulled up beside the Taylor car in such a way that Roach, who was riding in the front passenger side, was directly across from Taylor. On instructions from Shaw, Roach pointed a .22 caliber rifle through the car window at Taylor and demanded money. Taylor complied and Shaw and Mahaffey then got out of their car, took the keys out of Taylor's car, and forced Miss Hartness out of Taylor's car and into Shaw's car. Shaw returned to his car, and Roach, at the direction of Shaw, shot and killed Taylor who was still sitting in his car.

Miss Hartness was subsequently taken to a wooded area by Roach, Shaw, and Mahaffey, where she was raped, assaulted, and brutally murdered.

Roach, Shaw, and Mahaffey were arrested on November 3, 1977. Shaw pleaded guilty on all charges, and was sentenced to death. His conviction is on appeal.

At the time of the murders, Private First Class Joseph Carl Shaw was a member of the Armed Forces of the United States, and was assigned to the 130th Military Police Company, stationed at Fort Jackson, South Carolina. It is on the basis that Shaw was a government employee that the plaintiff, father of the victim Taylor, has filed suit. The action, which seeks 1.5 million dollars in damages, was commenced pursuant to 28 U.S.C. § 1346(b) and 28 U.S.C. § 2671 et seq. (1976).¹ The plaintiff alleges that Shaw sought treatment for his drug and psychological problems, but that certain government employees at Fort Jackson failed to provide treatment, and that they failed to exercise the degree of skill necessary to treat him effectively. The plaintiff further alleges that the government employees responsible for Shaw's treatment wrongfully and negligently failed to exercise due care in their failure to institutionalize Shaw, or otherwise provide for his proper care and treatment. Plaintiff alleges that as a direct and proximate result of the government's negligence, his son was subjected to mental anguish, was mutilated, and was killed.

The defendant, the United States, submits that the action should be dismissed for four reasons:

1. The basis of the suit, the murder of Tommy Taylor, is an assault and battery; section 2680(h) of the FTCA prohibits a tort suit against the United States for "any claim arising out of assault and/or battery."

2. Shaw was off-duty and outside the scope of his government employment at the time of the incident; therefore, no liability can be imputed to his employer, the United States.

3. Plaintiff's claim is barred by the discretionary function exception to the tort claims act.

4. No action by this defendant was the proximate cause of the injuries sustained by the decedent.

Because the Court finds that the first issue is dispositive, there is no need to discuss the other three arguments urged by the defendant. An analysis of the FTCA, and the many cases based on this well-litigated exception, convince this Court that the defendant's motion to dismiss must be granted.

Traditionally, the sovereign has always been immune from suit. To alleviate the harshness of this rule, Congress enacted the Federal Tort Claims Act which permits civil actions against the United States for personal injury and property damage caused by the "negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b) (1976). Section 2680 of Title 28, however, lists several claims expressly excepted from the purview of the Act, among which are any claims arising out of an assault or battery.² Because the United States has not consented to be sued for these torts, federal courts are without jurisdiction to entertain a suit based upon them. Gardner v. United States, 446 F.2d 1195, 1197 (2nd Cir. 1971), cert. denied, 405 U.S. 1018, 92 S.Ct. 1300, 31 L.Ed.2d 481 (1977).

The complaint, therefore, fails for lack of jurisdiction. U. S. v. Edens, 372 F.Supp. 1317 (D.S.C.1974). Jurisdiction to grant relief against the United States "depends wholly upon the extent to which the sovereign has waived its immunity to suit" and the waiver must be express. U. S. v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). In U. S. v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969), the Court held also that "such a waiver cannot be implied but must be unequivocally expressed." Id. at 4, 89 S.Ct. at 1503.

The plaintiff argues that his claim is not founded upon assault and battery, but rather upon the negligence of the government. Ever since the passage of the FTCA, litigants have tried to circumvent its exceptions by alleging that harm was caused not by an act for which sovereign immunity remained a bar, but rather by antecedent negligence. These attempts generally failed because the courts looked to the essence of the claim, and ignored the attempts of the plaintiff to characterize it in another way. See, e. g., Lambertson v. U. S., 528 F.2d 441, 444-45 (2nd Cir. 1976) cert. denied, 426 U.S. 921, 96 S.Ct. 2627, 49 L.Ed.2d 374 (1976). This Court has been influenced by the reasoning of the district court in Collins v. U. S., 259 F.Supp. 363 (D.Pa.1966). In Collins, a mailman alleged to be "acting in the scope of his employment, pushed, hit and struck the plaintiff." The complaint charged that the United States was negligent in hiring and retaining the mailman when it knew or should have known of his "violent, vicious and malicious propensities." Id. at 364. The district court granted the government's motion to dismiss on the basis of the exception laid down in § 2680(h). In response to the plaintiff's argument that their claim arose not from assault and battery but from negligence, the Court stated:

It is true that the claim here is predicated on negligence. However, that negligence would have been without legal significance absent the alleged acts of (the mailman). Without that, there would have been no actionable negligence. It was the attack which served to attach legal consequences to defendant's alleged negligence. Congress could easily have excepted claims for assault. It did not; it used the broader language excepting claims arising out of assault. It is plain that the claim arose only because of the assault and battery, and equally plain that it is a claim arising out of the assault and battery. This being so, the United States has not waived its immunity as respects this claim. Id. at 364.

No doubt the plaintiff has suffered a tremendous loss at the hands of J. C. Shaw and his cohorts. Any sympathy the Court may feel for this plaintiff, however, must be put aside, and the law must be interpreted in accordance with the intent of Congress. It would be much more pleasant to reach a decision based upon what this Court wishes Congress had said, rather than what it did say. However, to allow the plaintiff to recover by "dressing up the substance" of battery in the "garments" of negligence would be to "judicially admit at the back door that which has been legislatively turned away at the front door." Laird v. Nelms, 406 U.S. 797, 802, 92 S.Ct. 1899, 1902, 32 L.Ed.2d 499 (1972); Lambertson v. U. S., 528 F.2d 441 (2nd Cir. 1976).

One must merely examine the pleadings to see that the substance of plaintiff's complaint is precisely the kind of tort exempted from FTCA coverage by § 2680(h). No legal alchemy can transform it into a negligence action and confer jurisdiction where none exists. Gaudet v. U. S., 517 F.2d 1034, 1035 (5th Cir. 1975).

A number of other courts have examined in great detail this seemingly simple exception to the FTCA. Any discussion of this issue would be incomplete without some analysis of the landmark decision in Panella v. U. S., 216 F.2d 622 (2nd Cir. 1954). In that case Judge, later Justice, Harlan held that § 2680(h) did not bar an action arising out of an assault and battery. In Panella the plaintiff had been convicted and sentenced in State Court as an habitual drug addict. He was sentenced to a year in jail, but was placed on probation after electing to undergo treatment for his drug addiction at the Public Health Service hospital maintained by the Army....