Wagner v. Jones
| Decision Date | 08 December 2014 |
| Docket Number | No. CV-13-771 CG/WPL,CV-13-771 CG/WPL |
| Court | U.S. District Court — District of New Mexico |
| Parties | ROBERT WAGNER, Plaintiff, v. LIEUTENANT JAMES JONES, WHITE SANDS MISSILE RANGE POLICE DEPARTMENT AKA WHITE SANDS MISSILE RANGE DIRECTORATE OF EMERGENCY SERVICES, Defendant. |
THIS MATTER is before the Court on Defendant James Jone[s'] Motion to Dismiss and Memorandum of Law in Support of James Jones' Motion to Dismiss Plaintiff's Complaint (together the "Motion to Dismiss"), filed on October 14, 2014, (Doc. 25; Doc. 26); Plaintiff's Response to Defendant James Jones's Motion to Dismiss Plaintiff's Complaint ("Response"), filed on November 6, 2014, (Doc. 27); and Defendant's Reply to Plaintiff's Response to James Jones' Motion to Dismiss Plaintiff's Complaint ("Reply"), filed on November 17, 2014. (Doc. 28).
Plaintiff Robert Wagner filed the Complaint for Violation of Civil Rights and Personal Injury ("Complaint") on August 19, 2013, complaining about an incident that occurred on August 17, 2010 at White Sands Missile Range. (Doc. 1). Plaintiff contends that Defendant James Jones and an unnamed police officer arrested him on suspicion of driving while under the influence of alcohol. Id. at 2. Plaintiff maintains that during the arrest, Defendant Jones "leg swept" him while escorting him to a patrol car, whichcaused Plaintiff to fall down to his knees and fracture his tibia. Id.
Plaintiff asserted two claims against Defendant Jones in the Complaint. In Count I he alleged that Defendant Jones used excessive force against him in violation of his constitutional rights, and in Count II he asserted a claim for common-law battery. (Doc. 1 at 3, 4).
On March 3, 2014, the Government entered this case by filing a Notice of Substitution of the United States of America as the Only Proper Party Defendant with Respect to Plaintiff's Tort Claims Against Defendant James Jones ("Notice of Substitution"), pursuant to the Federal Tort Claims Act ("FTCA"). (Doc. 6). See 28 U.S.C. § 2679(d)(1). The Government subsequently filed a motion to dismiss all of the claims asserted in the Complaint, alleging that the Court lacked subject-matter jurisdiction over this action. (Doc. 8).
In the Memorandum Opinion and Order ("Order"), entered August 5, 2014, (Doc. 20), this Court construed Count I as a constitutional claim of excessive force brought against Defendant Jones pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and granted the Government's motion to the extent it sought dismissal of the Bivens claim against Defendant Jones in his official capacity. (Doc. 20 at 12). The Court treated Count II as a claim brought against the Government pursuant to the FTCA and the Notice of Substitution. Id. at 12-13. The Court concluded that Plaintiff did not satisfy the claim presentment and notice requirements under § 2675 of the FTCA, and dismissed the claim without prejudice because the Court lacked subject-matter jurisdiction over the claim. (Doc. 20 at 15-16).
Thus, Plaintiff's Bivens claim against Defendant Jones in his individual capacity isthe only remaining claim in this action. Defendant argues that the claim should be dismissed because it is precluded by the earlier dismissal of the FTCA claim, and that it is barred by the applicable three-year statute of limitations. Plaintiff responds that the Court's dismissal of the FTCA claim for lack of subject-matter jurisdiction was not a final judgment that would invoke the FTCA's statutory judgment bar, and the Complaint was filed before the expiration of the statute of limitations.
Having considered the parties' submissions, relevant law, and the record in this case, the Court finds, for the reasons set forth below, that Defendant's Motion to Dismiss shall be DENIED.
Federal district courts "have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Accordingly, federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The determination of subject-matter jurisdiction is a threshold question of law, and the party invoking the Court's jurisdiction bears the burden of proof. Marcus v. Kan. Dept. of Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999). Plaintiff filed the Complaint in this Court and therefore bears the burden of establishing that the Court has subject-matter jurisdiction over his claims.
A party seeking dismissal of a lawsuit on the basis that the court lacks subject-matter jurisdiction files his motion pursuant to FED. R. CIV. P. 12(b)(1). Rule 12(b)(1) motions take the form of either a facial or factual attack on a court's subject-matter jurisdiction. Ingram v. Faruque, 728 F.3d 1239, 1242 (10th Cir. 2013). Ifthe party challenging subject-matter jurisdiction mounts a facial attack, then "the district court must accept the allegations in the complaint as true." Id. (citation omitted). However, when the jurisdictional challenge is factual, then the Court has wide discretion to go beyond the allegations contained in the complaint and consider affidavits and other evidence to resolve disputed jurisdictional facts. Id.
A party may raise the statute of limitations defense in a motion to dismiss pursuant to Rule 12(b)(6), "when the dates given in the complaint make clear that the right sued upon has been extinguished."1 Torrez v. Eley, No. 09-1464, 378 Fed.Appx. 770, 772 (10th Cir. May 17, 2010) (unpublished) (quotations omitted). When a party has asserted a statute of limitations issue in a rule 12(b)(6) motion, the Court accepts all well-pleaded factual allegations in the complaint as true and views them in the light most favorable to the plaintiff to determine whether the statute of limitations has run. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 997 (10th Cir. 2002); Lymon v. Aramark Corp., 728 F. Supp. 2d 1207, 1215 (D.N.M. 2010).
Defendant asks the Court to dismiss Plaintiff's remaining Bivens claim, because that claim is precluded by the dismissal of Plaintiff's FTCA claim pursuant to the FTCA's judgment bar. In the alternative, Defendant argues that dismissal is warranted because Plaintiff's Bivens claim was filed outside of the applicable three-year statute oflimitations. Plaintiff responds that the Court's dismissal of the FTCA claim for lack of subject-matter jurisdiction does not implicate the FTCA's judgment bar, and the Complaint was filed before the expiration of the statute of limitations.
Defendant contends that the Complaint should be dismissed because Plaintiff's Bivens claim is barred pursuant to the FTCA. Defendant argues that the Court's dismissal of Plaintiff's FTCA claim triggered the FTCA's judgment bar, which prevents Plaintiff's Bivens claim from proceeding because both claims arose out of the same subject matter. Plaintiff responds that the Court's dismissal of the FTCA claim for lack of subject-matter jurisdiction did not amount to an entry of a judgment in favor of either party. Plaintiff maintains that the Court ultimately decided that it could not enter judgment in favor of either party, and therefore the FTCA's judgment bar does not apply to his Bivens claim.
When a federal law enforcement officer commits an intentional tort, as Plaintiff alleges here, the victim is permitted to pursue a Bivens claim against the officer individually, and a common-law tort claim against the United States under the FTCA. See Carlson v. Green, 446 U.S. 14, 19-20 (1980) (); Engle v. Mecke, 24 F.3d 133, 135 (10th Cir. 1994). The FTCA provides the exclusive remedy for tort claims allegedly committed by federal employees that occur when acting in their official capacity. 28 U.S.C. § 2679(b)(1). The FTCA constitutes a limited waiver of sovereign immunity, Estate of Trantadue ex rel. Aguilar v. United States, 397 F.3d 840, 852 (10th Cir. 2005), that isstrictly construed in favor of the sovereign, Lane v. Pena, 518 U.S. 187, 192 (1996), and limited by a series of specific exceptions that are jurisdictional in nature. See Dahl v. United States, 319 F.3d 1226 (10th Cir. 2003). In contrast, a Bivens action is a judicially-created mechanism that permits an individual to pursue a claim against a federal employee in his personal capacity for damages arising out of the employee's violations of the Constitution while acting under color of federal law. Bivens, 403 U.S. at 397. Thus, FTCA and Bivens claims are described as "separate and distinct causes of action arising out of the same transaction." Engle, 24 F.3d at 135.
While a plaintiff may initially elect to bring both claims together in the same lawsuit, a plaintiff may not recover under both theories pursuant to § 2676 of the FTCA, also known as the "judgment bar." Engle, 24 F.3d at 135 (citing 28 U.S.C. § 2676). Section 2676 provides that "[t]he judgment in an action under section 1346(b)2 of this title shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim." 28 U.S.C. § 2676.
This Court found that Plaintiff did not satisfy all of the jurisdictional requirements of the FTCA because he failed to exhaust his administrative remedies prior to bringing suit. (Doc. 20 at 15-16). As a result, Plaintiff's FTCA claim was dismissed without prejudice for lack of subject-matter jurisdiction under Fed.R.Civ.P. 12(b)(1). Id. Defendantcontends that the Court's dismissal of that claim constitutes a "judgment" for purposes of § 2676, operating to now preclude Plaintiff's Bivens claim.
The Tenth Circuit discussed the relationship between Bivens claims, the FTCA, and the FTCA's § 2676 judgment bar in the seminal case Farmer v. Perrill, 275 F.3d 958 (10th...
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