Wright ex rel. Wife v. United States

• Decision Date: 21 January 2016
• Docket Number: No. 15-60285,15-60285
• Parties: ANTHONY WRIGHT, For and on Behalf of His Wife, Stacey Denise Scott Wright, Deceased, and on Behalf of all Wrongful Death Beneficiaries, Plaintiff - Appellant v. UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; RAND BEERS, Defendants - Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

ANTHONY WRIGHT, For and on Behalf of His Wife,Stacey Denise Scott Wright, Deceased, andon Behalf of all Wrongful Death Beneficiaries, Plaintiff - Appellant v. UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OFHOMELAND SECURITY;RAND BEERS, Defendants - Appellees

No. 15-60285

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

January 21, 2016

Summary Calendar

Appeal from the United States District Court for the Southern District of Mississippi

USDC No. 3:13-CV-637

Before KING, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:^*

Plaintiff-Appellant Anthony Wright filed suit against the United States under the Federal Tort Claims Act, alleging that the United States is liable for claims arising out of the murder of Stacey Wright by another government employee, Ruben Benitez. The district court granted the United States' motionto dismiss, and Wright appeals. We AFFIRM the judgment of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

On Saturday, September 17, 2011, Ruben Benitez murdered Stacey Denise Scott Wright in her apartment in D'Iberville, Mississippi, after Benitez and Wright returned from dinner. At the time, Stacey Wright worked at the Gulfport-Biloxi International Airport as an employee of the Transportation Security Administration (TSA)—an agency within the United States Department of Homeland Security (DHS)—and Benitez was her supervisor.¹ Stacey Wright and Benitez were also involved in an affair, which began when both parties previously worked at the Jackson-Evers International Airport. Benitez was convicted of Stacey Wright's murder and sentenced to life in prison. Benitez v. State, 139 So. 3d 134, 143 (Miss. Ct. App. 2014) (affirming the conviction and sentence on appeal).²

Anthony Wright, Mrs. Wright's husband, filed the present lawsuit asserting claims for assault and battery, negligence, alienation of affection, and wrongful death against the United States. The United States moved to dismiss all of the claims or, in the alternative, for summary judgment. In response, Wright moved for the court to permit limited discovery on whether "Benitez was acting within the course and scope of his employment."

On November 18, 2014, the district court granted the United States' motion. The district court found that the Federal Tort Claims Act (FTCA) did not waive the United States' immunity from assault and battery claims and, in the alternative, that Benitez was not acting within the course and scope ofhis employment when he attacked Mrs. Wright. The district court also found that Wright's negligence claim failed as a matter of law because Wright failed to identify any duty that the United States owed to Mrs. Wright independent of the employment relationship. Finally, the district court found that Wright failed to state a claim against the United States for alienation of affection because "knowledge [of the affair] would not suffice to support liability for alienation of affection." In the same order and opinion, the district court denied Wright's request for limited discovery because any benefit from discovery was "entirely speculative."

Wright moved for entry of final judgment as to United States so that he could appeal to this court. The district court entered final judgment and dismissed the complaint with prejudice. Wright timely appealed.

II. STANDARD OF REVIEW

On appeal, Wright argues that the district court erred in dismissing the assault and battery, negligence, and alienation of affection claims against the United States and in denying limited discovery on whether Benitez was acting within the course and scope of his employment at the time of the murder. We review de novo a district court's granting of a motion to dismiss for failure to state a claim under Rule 12(b)(6). In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007). We accept all well-pleaded facts as true and view those facts "in the light most favorable to the plaintiff." Raj v. La. State Univ., 714 F.3d 322, 330 (5th Cir. 2013). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible if the complaint "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. "Dismissal is appropriate when the plaintiff has not alleged enoughfacts to state a claim to relief that is plausible on its face or has failed to raise his right to relief above the speculative level." Bass v. Stryker Corp., 669 F.3d 501, 506 (5th Cir. 2012).

III. ASSAULT AND BATTERY CLAIM

The district court did not err in dismissing Wright's assault and battery claim against the United States. The United States, its departments, and its employees in their official capacities are generally "immune from suit except as the United States has consented to be sued." Williamson v. U.S. Dep't of Agric., 815 F.2d 368, 373 (5th Cir. 1987). The FTCA waives that immunity for injuries

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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1); see also 28 U.S.C. § 2679(b)(1) (stating that the FTCA provides the exclusive remedy for such injuries). "[W]e note that the limited waiver of sovereign immunity contained in the FTCA should be narrowly-construed in favor of the United States." Leleux v. United States, 178 F.3d 750, 754 (5th Cir. 1999). Moreover, "the FTCA does not waive sovereign immunity for certain enumerated torts." Bodin v. Vagshenian, 462 F.3d 481, 484 (5th Cir. 2006). In particular, the FTCA does not waive sovereign immunity for any claim arising out of assault or battery unless committed by "investigative or law enforcement officers of the United States Government." 28 U.S.C. § 2680(h). The district court found that the assault and battery exception applied and barred Wright's claim in the present matter, and Wright does not challenge this finding on appeal. We agree with the district court and hold that Wright's assault and battery claim against the United States is expresslybarred by 28 U.S.C. § 2680.³ See Martinez v. Lueva, 174 F. App'x 235, 237 (5th Cir. 2006) (per curiam) (unpublished) (noting that claims are abandoned when an appellant fails to address the alternative grounds of dismissal).

Moreover, the district court did not err in dismissing the claim on the alternative basis that Benitez was not within the course and scope of his employment as a matter of law. The FTCA's waiver of sovereign immunity "only applies when the tortfeasor acts within the scope of his employment." Bodin, 462 F.3d at 484. "The issue of whether an employee is acting within the scope of his employment for purposes of the FTCA is governed by the law of the state in which the wrongful act occurred." Id. An employee acts "within the scope of employment" under Mississippi law—the state where the act occurred—only if the act was "committed in the course of and as a means to accomplishing the purposes of the employment and therefore in furtherance of the master's business." Adams v. Cinemark USA, Inc., 831 So. 2d 1156, 1159 (Miss. 2002). However, we have previously explained that "[a]n intentional violent assault on a co-worker is quite obviously neither committed as a means of accomplishing the purposes of the employment nor of the same general nature as authorized conduct." Tanks v. Lockheed Martin Corp., 417 F.3d 456, 464 (5th Cir. 2005).

Wright contends that the United States may be held liable because the employee "was aided in accomplishing the tort by the existence of the agency relation." Jones v. B.L. Dev. Corp., 940 So. 2d 961, 967 (Miss. Ct. App. 2006) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 758 (1998)). In particular, Wright argues that the United States aided Benitez by requiringBenitez to travel to the Gulfport-Biloxi International Airport as part of his mandatory duties and responsibilities. This argument is unpersuasive. The Jones court expressly recognized that liability based on the aided-in-the-agency-relation standard constitutes "liability for the torts the [master's] servant committed outside the scope of employment." Id. at 966 (emphasis added); see also Ellerth, 524 U.S. at 758 ("In limited circumstances, agency principles impose liability on employers even where employees commit torts outside the scope of employment."). However, the FTCA only waives immunity for injuries caused by an employee "acting within the scope of his office or employment," 28 U.S.C. § 1346(b)(1) (emphasis added), and such immunity waivers "should be narrowly-construed in favor of the United States," Leleux, 178 F.3d at 754. Jones thus speaks to a ground for liability that is not available under the provisions of the FTCA. The district court did not err in dismissing the assault and battery claim against the United States on either of its proffered grounds.

IV. NEGLIGENCE

The district court also did not err in dismissing Wright's negligence claim against the United States. Wright challenges the district court's dismissal of his negligence claim based on the United States' alleged failure "to prevent the attack and death of Stacey Wright." As previously discussed, the FTCA generally bars claims for assault and battery. 28 U.S.C. § 2680(h). However, relying on Supreme Court precedent, we have recognized "that negligence claims related to a Government employee's § 2680(h) intentional tort may proceed where the negligence arises out of an independent, antecedent duty unrelated to the employment relationship between the tortfeasor and the United States." Leleux, 178 F.3d at 757 (...