Wright ex rel. Wright v. United States, Civil Action No. 3:13–CV–637TSL–JCG.

• Citation: 69 F.Supp.3d 606
• Decision Date: 18 November 2014
• Docket Number: Civil Action No. 3:13–CV–637TSL–JCG.
• Court: U.S. District Court — Southern District of Mississippi
• Parties: Anthony WRIGHT, for and on behalf of his Wife, Stacey Denise Scott WRIGHT, Deceased, and on behalf of all Wrongful Death Beneficiaries, Plaintiffs v. UNITED STATES of America, United States Department of Homeland Security, Rand Beers, Ruben Orlando Benitez, and Landmark of D'Iberville, LLC, Defendants.

69 F.Supp.3d 606

Anthony WRIGHT, for and on behalf of his Wife, Stacey Denise Scott WRIGHT, Deceased, and on behalf of all Wrongful Death Beneficiaries, Plaintiffs

v.UNITED STATES of America, United States Department of Homeland Security, Rand Beers, Ruben Orlando Benitez, and Landmark of D'Iberville, LLC, Defendants.

Civil Action No. 3:13–CV–637TSL–JCG.

United States District Court, S.D. Mississippi, Northern Division.

Signed Nov. 18, 2014.

John Richard Barry, John G. Roach, III, Hammack, Barry, Thaggard & May, LLP, Kenneth Dustin Markham, Robert Thomas Bailey, Barry, Thaggard, May & Bailey, LLP, Meridian, MS, David L. Merideth, David L. Merideth, PLLC, Ridgeland, MS, for Plaintiffs.

David H. Fulcher, U.S. Attorney's Office, Edwin S. Gault, Jr., Forman, Perry, Watkins, Krutz & Tardy, LLP, Jackson, MS, for Defendants.

Ruben Orlando Benitez, Leakesville, MS, pro se.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on the motion of defendants United States of America and the United States Department of Homeland Security (collectively the Government) to dismiss, or in the alternative for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. As the motion was premised in part on sovereign immunity, the court, upon the Government's filing of the motion, entered an order staying the case pending resolution of the motion. In response, plaintiff Anthony Wright moved to extend the deadline for responding to the motion and to lift the stay to permit immunity-related discovery. The Government responded in opposition to that motion. Plaintiff has since filed a response to the Government's motion in which he both reiterates his request for an extension and an opportunity for discovery and presents merits-based arguments. For reasons that follow, the court concludes that plaintiff's motion to lift the stay to permit immunity-related discovery should be denied. The court further concludes that the Government's motion to dismiss is well taken and should be granted.

Facts:

On September 17, 2011, Stacey Denise Scott Wright, an employee of the Transportation Security Administration (TSA), an agency of the United States Department of Homeland Security (DHS), was stabbed to death at her apartment in D'Iberville, Mississippi by her supervisor at TSA, Ruben Orlando Benitez, with whom Mrs. Wright was having an affair. Benitez was tried and convicted of Mrs. Wright's murder in March 2013 and sentenced to life in prison. Evidence at Benitez's trial established that he spent the two days prior to the murder with Mrs. Wright at her apartment. The murder occurred on a Saturday night, soon after Benitez and Mrs. Wright had returned to the apartment following dinner at a local restaurant. According to Benitez's testimony at his trial, on the way to the apartment from dinner, the two had begun arguing about their relationship. Upon entering the apartment, a comment by Mrs. Wright comparing Benitez to her husband, from whom Mrs. Wright was separated, caused him to go into an uncontrollable rage in which he grabbed a knife from the counter and began stabbing her repeatedly, resulting in her death.

Prior Litigation:

On July 23, 2012, Anthony Wright, Mrs. Wright's husband, filed a lawsuit asserting claims against the Government and Benitez for sexual harassment, assault and battery, wrongful death and alienation of affection, and against the Government for negligence in failing to prevent the attack. Additionally, plaintiff sued Landmark of D'Iberville (Landmark), the Mississippi limited liability company which owned and managed the apartment complex where the murder occurred, for alleged negligence in failing to maintain the premises in a reasonably safe condition.

On motion of the Government, the court dismissed plaintiff's sexual harassment claims, which were necessarily brought under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., for failure to exhaust administrative remedies; dismissed his claim against the Government for alienation of affection for lack of jurisdiction due to plaintiff's failure to present an administrative tort claim encompassing this tort, as required by the Federal Tort Claims Act (FTCA) 28 U.S.C. § 2675(a) ; and dismissed his claims against the Government for wrongful death, assault and battery and negligence in failing to prevent the assault and battery, on the basis that the FTCA does not waive the Government's sovereign immunity as to these claims. See Wright ex rel. Wright v. United States, 914 F.Supp.2d 837 (S.D.Miss.2012). Following the dismissal of these federal claims, there remained only state tort claims for alienation of affection and assault and battery against Benitez and for negligence against Landmark.¹ The court declined to exercise supplemental jurisdiction over these claims pursuant to 28 U.S.C. § 1367(a) and on September 10, 2013 dismissed plaintiff's complaint in its entirety. See Wright ex rel. Wright v. United States, Civ. Action No. 3:12CV514TSL–MTP (S.D.Miss. Sept. 10, 2013).

The Present Lawsuit:

A month later, on October 10, 2013, plaintiff filed this second lawsuit against Benitez, the Government and Landmark, asserting many of the same claims as in his original suit. Specifically, plaintiff has reasserted his state law claims against Benitez for assault and battery and wrongful death and against Landmark for negligence and wrongful death, and he has asserted claims against the Government (1) for alienation of affection, based on allegations that the Government, through its employees, knew or should have known about the affair between Benitez and Stacey Wright and yet failed to take appropriate preventative and/or corrective action to prevent the affair; (2) for alleged negligence in failing to prevent the affair and the attack as the Government knew or should have known both of the affair and of Benitez's propensity for violence and yet failed to protect Mrs. Wright; (3) for assault and battery, based on allegations that Benitez's attack on Mrs. Wright was done in the course and scope of his employment, making the Government vicariously liable for his actions; and (5) for wrongful death based on all of the foregoing. The Government again seeks dismissal of all of the claims against it. The court considers each claim in turn.

Assault and Battery

“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). The FTCA waives the federal government's immunity from suit “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.” 28 U.S.C. § 2679(b)(1). See also 28 U.S.C. § 1346(b)(1) (giving federal courts jurisdiction over claims against the United States for “personal injury or death 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.”); Richards v. United States, 369 U.S. 1, 6, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962) (“The Tort Claims Act was designed primarily to remove the sovereign immunity of the United States from suits in tort and, with certain specific exceptions, to render the Government liable in tort as a private individual would be under like circumstances.”). However, the FTCA enumerates a number of exceptions to the waiver of immunity, including, as is pertinent here, an exception for all claims “arising out of assault, battery” and other specified intentional torts. See 28 U.S.C. § 2680(h) (providing that FTCA does not waive sovereign immunity for certain enumerated intentional torts, including “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights” unless the government actor was an investigative or law enforcement officer).

In plaintiff's previous lawsuit, the court dismissed his claims against the Government for assault and battery and for wrongful death arising from assault and battery based on the assault and battery exception to the FTCA's waiver of immunity. See Wright, 914 F.Supp.2d at 845–46. In its motion in this case, the Government argues that plaintiff's claim for assault and battery and for wrongful death based on assault and battery are likewise barred by the assault and battery exception. It further argues that there is no waiver of immunity since Benitez was plainly not acting in the course and scope of his employment when he attacked Mrs. Wright. The Government is correct on both points.

Under the FTCA, the Government is only liable for torts of its employees committed in the course and scope of their employment. See 28 U.S.C. § 2679(b)(1) and § 1346(b)(1). In his response to the Government's motion, and in his separate motion to lift stay and permit immunity discovery, plaintiff argues that he needs limited discovery in order to gather evidence to determine whether or not Benitez was acting within the course and scope of his employment. In the court's opinion, discovery will not aid plaintiff for two reasons. First, because of the assault and battery exception to the FTCA waiver of immunity, even if Benitez was in the course and scope of his employment at the time of the attack, the Government could not be held vicariously liable for his actions. Second, plaintiff has offered no plausible theory upon which one could reasonably conclude that Benitez was acting within the scope of his employment when he murdered Mrs. Wright.

“The issue of whether an employee is acting...