Opinion
Civil Action 8:21-cv-1976-DCC-KFM
08-31-2022
Dawn Lusk, Plaintiff, v. Bradley Norton, April Peppers, Chris Merchant, The Town of Salem, and The United States of America, Defendants.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD, UNITED STATES MAGISTRATE JUDGE
This matter is before the court on the motion to dismiss of April Peppers, Chris Merchant, and the United States of America (“the federal defendants”), pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6) (doc. 68). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases involving pro se litigants and submit findings and recommendations to the district court.
Defendant Bradley Norton is proceeding pro se.
FACTUAL ALLEGATIONS
In her amended complaint, the plaintiff alleges that on March 6, 2020, she visited the Salem Post Office to collect her mail (doc. 37, amend. comp. ¶ 15). She discovered that several pieces of mail she expected to receive were not in her mailbox and had been either lost or misplaced (id.). The plaintiff informed post office employees that several items of her mail were missing and were likely placed in the wrong mailbox. She asked employees for assistance in locating the items. The employees, who had music playing at a loud volume, continued to chat and to listen to music instead of assisting the plaintiff. The plaintiff suggested that the employees turn down the volume of the music so that they could better focus on their work (id. ¶ 16). The plaintiff alleges the employees laughed at her and turned the volume up in an attempt to disrespect and demean her (id.).
The plaintiff alleges that defendant Chris Merchant, Postmaster for the Salem Post Office, then opened the double-locked doors in order for defendant April Peppers, a post office employee supposedly known by her exotic dancing name “Hot Pepper,” to enter the customer's area of the post office and confront the plaintiff. The plaintiff claims Merchant violated policy by unlocking the double-locked doors and allowing Peppers to confront the plaintiff (doc. 37, amend. comp. ¶ 17). Peppers allegedly shouted profanity at the plaintiff before physically attacking her. Peppers purportedly struck the plaintiff in the head, knocked the plaintiff to the ground, and kicked the plaintiff while she was lying on the ground (id. ¶ 18). The plaintiff alleges Peppers violated her Fourth Amendment and other constitutional rights (id.). The plaintiff alleges Merchant knew or should have known that Peppers was going to verbally and physically attack her before allowing Peppers to confront her (id. ¶ 19). She alleges that Merchant facilitated a situation where Peppers was virtually certain to attack her and that Merchant allowed employees to routinely violate policies and allowed dangerous employees to act aggressively toward customers (id. ¶¶ 19-20). The plaintiff claims she asked Merchant for help, but he refused to call for help and also refused to allow her to use a telephone to call for help herself. Merchant then instructed the plaintiff to leave the post office and grabbed the plaintiff by her ankles and held her as if he were going to drag her out of the post office while she was still on the ground (id. ¶ 21).
Following the incident, the plaintiff alleges that she attempted to obtain related documents pursuant to a Freedom of Information Act (“FOIA”) request. She alleges the United States Postal Service (“USPS”) violated the FOIA by improperly withholding documents “in that the agency responded to the plaintiff's request by estimating a minimum cost of $468,048.00 for responsive documents” (doc. 37, amend. comp. ¶ 81).
The plaintiff asserts six causes of actions in her amended complaint. The first, second, fourth, and sixth causes of action are alleged against one or more of the federal defendants (doc. 37, amend. comp. ¶¶ 32-82). The federal defendants have moved to dismiss all four of these causes of action.
LEGAL STANDARD
Motion to Dismiss for Lack of Subject Matter Jurisdiction
Rule 12(b)(1) allows a defendant to move to dismiss an action for lack of subject matter jurisdiction. When presented with a 12(b)(1) motion, the court “is to 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.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); see also Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (determination of subject matter jurisdiction “may be based on the court's review of the evidence”). “The court may dismiss a case for lack of subject matter jurisdiction on any of the following bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Friends of Dereef Park v. Nat'l Park Serv., C. A. No. 2:13-cv-03453-DCN, 2015 WL 12807782, at *4 (D.S.C. Apr. 13, 2015) (internal citations omitted). The plaintiff has the burden of proving that subject matter jurisdiction exists. Evans v. B.F. Perkins Co., a Div. of Standex Intern. Corp., 166 F.3d 642, 647 (4th Cir. 1999) (citation omitted).
Motion to Dismiss for Failure to State a Claim
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Rule 8(a) sets forth a liberal pleading standard, which requires only a" ‘short and plain statement of the claim showing the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what . . . the claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,47 (1957)). “In assessing the sufficiency of a complaint, [the court] assume[s] as true all its well-pleaded facts and draw[s] all reasonable inferences in favor of the plaintiff.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (citing Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'" Robinson v. American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
“In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). The court may consider such a document, even if it is not attached to the complaint, if the document “was integral to and explicitly relied on in the complaint,” and there is no authenticity challenge. Id. (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). See also Int'l Assn of Machinists & Aerospace Workers v. Haley, 832 F.Supp.2d 612, 622 (D.S.C. 2011) (“In evaluating a motion to dismiss under Rule 12(b)(6), the Court . . . may also ‘consider documents attached to . . . the motion to dismiss, so long as they are integral to the complaint and authentic.'”) (quoting Sec'y of State for Def. v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)). Rule 12(d) states: “If on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d).
ANALYSIS
First Cause of Action
In the first cause of action in her amended complaint, the plaintiff alleges liability for negligence, gross negligence, and recklessness pursuant to the Federal Tort Claims Act (“FTCA”) (doc. 37, amend comp. ¶¶ 32-45). The federal defendants argue that this cause of action against the United States is barred by 28 U.S.C. § 2680(h), which precludes claims that arise out of assault and battery. The undesigned agrees.
“It is elementary that the United States, as sovereign, is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.” United States v. Mitchell, 445 U.S. 535, 538, (1980) (citation omitted). Through the FTCA, Congress has provided a limited waiver of sovereign immunity, allowing the United States to be sued for injuries resulting from certain tortuous acts committed by employees of the Government acting within the scope of their employment, when a private person would be liable for such conduct under state law. 28 U.S.C. § 1346(b)(1). The FTCA excepts certain conduct from the waiver of sovereign immunity, which exceptions are set forth in the statute. Id. § 2680, “Exceptions.” The foregoing statute precludes the imposition of liability for “any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” Id. § 2680(h). The plaintiff has the burden “in an FTCA case to prove an unequivocal waiver of sovereign immunity and the existence of subject matter jurisdiction.” LeRose v. United States, 285 Fed.Appx. 93, 96 (4th Cir. 2008) (citation omitted).
Here, as argued by the federal defendants, while the plaintiff's FTCA claim is alleged in terms of negligence and recklessness, it is barred by 28 U.S.C. § 2680(h) as a claim “arising out of assault [or] battery.” In United States v. Shearer, the Supreme Court of the United States analyzed this exception to the waiver of sovereign immunity and held as follows:
Respondent cannot avoid the reach of § 2680(h) by framing her complaint in terms of negligent failure to prevent the assault and battery. Section 2680(h) does not merely bar claims for assault or battery; in sweeping language it excludes any claim arising out of assault or battery. We read this provision to cover claims like respondent's that sound in negligence but stem from a battery committed by a Government employee. Thus, “the express words of the statute” bar respondent's claim against the Government.473 U.S. 52, 55 (1985) (emphasis in original) (citing United States v. Spelar, 338 U.S. 217, 219 (1949)). As noted by the Court in Shearer, the legislative history of § 2680(h) supported this interpretation as “[i]t is clear that Congress passed the Tort Claims Act on the straightforward assurance that the United States would not be financially responsible for the assaults and batteries of its employees,” and “[n]o one suggested that liability would attach if the Government negligently failed to supervise such an assailant.” Id. The Court of Appeals for the Fourth Circuit has similarly ruled. See Perkins v. United States, 55 F.3d 910, 916 (4th Cir. 1995) (providing that “[a]n allegation of ‘negligent supervision' will not render an otherwise unactionable claim actionable so long as the negligent supervision claim depends on activity of the supervised agent which is itself immune” (citation omitted)). See also Wise v. United States, 8 F.Supp.2d 535, 544 (E.D. Va.1998) (“If the United States is immune from suit for the actions of the direct tortfeasor, ‘it is also immune from suit for his negligent supervision because, without his underlying activities and violations, there would be no cause of action for negligent supervision at all.'” (quoting Perkins, 55 F.3d at 916 and citing Thigpen v. United States, 800 F.2d 393, 395 (4th Cir.1986))).
The plaintiff argues that Sheridan v. United States, 487 U.S. 392 (1988) applies and allows the court to take jurisdiction in this case (doc. 77 at 5-7). While the Sheridan case presents an exception to § 2680(h), the exception is not applicable here. In Sheridan, the Supreme Court of the United States clarified that § 2680(h) does not bar negligence claims related to an assault or battery committed by a government employee if the government has breached an affirmative duty that is “entirely independent of [the tortfeasor's] employment status,” such that “the employment status of the assailant has nothing to do with the basis for imposing liability on the government.” 487 U.S. at 401-02. “This exception has become known as the 'independent affirmative duty' doctrine.” Acosta v. U.S., 207 F.Supp.2d 1365, 1368 (S.D. Fla. 2001).
In Sheridan, the plaintiffs were shot by an off-duty Navy corpsman who was employed at the Bethesda Naval Hospital. Before the shooting, Navy personnel found the corpsman wandering around in a drunken stupor on hospital grounds with a rifle. Those personnel did not restrain the corpsman but instead fled the scene. 487 U.S. at 395. The corpsman subsequently shot his rifle into a passing car and injured the plaintiffs. Id. The plaintiffs in Sheridan claimed the United States had been negligent in failing to restrain the corpsman who was drunk and carrying a weapon on Navy property in violation of Navy regulations, an independent duty separate from the employment relationship of the Navy personnel. Although the Court in Sheridan found § 2680(h) did not bar the plaintiffs' claim, the Supreme Court limited its decision to the facts of the case and noted that “[b]ecause [the corpsman's] employment status is irrelevant to the outcome, it is not appropriate in this case to consider whether negligent hiring, negligent supervision, or negligent training may ever provide the basis for liability under the FTCA for a foreseeable assault or battery by a Government employee.” Id. at 403 n.8. The Court remanded the case for a determination of whether the United States could be held liable under Maryland state law if the United States was a private person under like circumstances. Justice Kennedy in his concurring opinion in Sheridan noted that § 2680(h) bars claims alleging negligent hiring, training, and or supervision: “a court must ascertain whether the alleged negligence was the breach of a duty to select or supervise the employee-tortfeasor or the breach of some separate duty independent from the employment relation.” Id. at 406. Justice Kennedy expressed concern that, to hold otherwise, “litigants could avoid the substance of the exception because it is likely that many, if not all, intentional torts of Government employees plausibly could be ascribed to the negligence of the tortfeasor's supervisors,” thereby frustrating the purpose of the § 2680(h) exception. Id.
In response to the federal defendants' motion to dismiss, the plaintiff claims the individual federal employees violated a USPS regulation and policy that form a statutory duty in tort such that § 2680(h) does not apply. Specifically, the plaintiff asserts that the United States has a duty pursuant to 39 C.F.R. § 447.21 and the USPS Employee and Labor Relations Manual § 665.24 (doc. 77 at 5-6). The regulation cited by the plaintiff states:
The plaintiff actually cites § 655.24 as the standard of conduct that creates a duty for USPS employees to refrain from violent or threatening behavior (doc. 37, amend. comp. ¶ 38; doc. 77 at 5) (emphasis added). This appears to be a scrivenor's error as such a section does not exist in the USPS Employee and Labor Relations Manual (available at https://about.usps.com/manuals/elm/elm.htm).
(d) No employee shall engage in criminal, dishonest, notoriously disgraceful or immoral conduct, or other conduct prejudicial to the Postal Service. Conviction of a violation of any criminal statute may be grounds for disciplinary action by the Postal Service in addition to any other penalty imposed by or pursuant to statute.39 C.F.R. § 447.21(d). This regulation is applicable to postal employees and is addressed to conduct prejudicial to the USPS. Likewise, the section of the USPS Employee and Labor Relations Manual cited by the plaintiff is also applicable to postal employees, not the general public. In the “Employee Relations” chapter, § 665.24 “Violent and/or Threatening Behavior” states:
The Postal Service is committed to the principle that all employees have a basic right to a safe and humane working environment. In order to ensure this right, it is the unequivocal
policy of the Postal Service that there must be no tolerance of violence or threats of violence by anyone at any level of the Postal Service. Similarly, there must be no tolerance of harassment, intimidation, threats, or bullying by anyone at any level. Violation of this policy may result in disciplinary action, including removal from the Postal Service.USPS Employee and Labor Relations Manual § 665.24 (available at https://about.usps.com/manuals/elm/elm.html) (emphasis added).
The plaintiff's argument that the above-quoted regulation and employment policy created a public duty fails. As argued by the federal defendants, “South Carolina courts have determined the public duty rule only comes into play when, ‘and only when, the plaintiff relies upon a statute as creating the duty.'” Murphy v. Fields, C. A. No. 3:17-2914-CMC, 2019 WL 5417735, at *7 (D.S.C. Oct. 23, 2019) (citing Arthurs ex rel. Estate of Munn v. Aiken Cnty., 551 S.E.2d 579, 582 (S.C. 2001)). In Arthurs, the Supreme Court of South Carolina court defined the “public duty rule,” stating as follows:
Under the FTCA, the liability of the United States is determined “in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b).
The “public duty rule” recognizes that, generally, statutes that create or define the duties of a public office create no duty of care towards individual members of the general public. An exception to the general rule exists when the statutory duty is owed to individuals rather than to the public at large. Our courts are reluctant to find a special duty.551 S.E.2d at 583 (citations omitted). The court noted that it had adopted the following six-part test for determining when such a “special duty” exists:
(1) an essential purpose of the statute is to protect against a particular type of harm;
(2) the statute, either directly or indirectly, imposes on a specific public officer a duty to guard against or not cause that harm;
(3) the class of persons the statute intends to protect is identifiable before the fact;
(4) the plaintiff is a person within the protected class;
(5) the public officer knows or has reason to know the likelihood of harm to members of the class if he fails to do his duty; and
(6) the officer is given sufficient authority to act in the circumstances or he undertakes to act in the exercise of his office.Id. (citation omitted).
As argued by the federal defendants, no independent affirmative duty exists in this case. It is clear from the language cited in the regulation and employment policy the plaintiff relies on that they were not designed to protect against a particular type of harm. Likewise, the regulation does not impose on a specific public office a duty to guard against or not cause that harm; there is no class of persons identified; and the plaintiff is not a person within the protected class. The word “customer” or “public” is not mentioned in either the regulation or the USPS employment policy. As no independent duty exists, the plaintiff's claim must fail.
Here, the plaintiff's claims arise out of her alleged altercation with Postal Clerk April Peppers, and the claims are, therefore, excepted from the waiver of sovereign immunity under the FTCA. As argued by the federal defendants, the plaintiff cannot recast this intentional tort action into a negligent supervision and retention action to avoid the sweeping language of the exception to the waiver of sovereign immunity found in § 2680(h). Moreover, this is not a case like Sheridan “in which the employment status of the assailant has nothing to do with the basis for imposing liability on the government.” Acosta, 207 F.Supp.2d at 1369 (dismissing for lack of jurisdiction negligence claims brought against the United States because they arose out of shooting by USPS employee on post office property and Sheridan exception did not apply). The plaintiff's claims against the United States derive from the employment relationship between April Peppers, Chris Merchant, and the USPS. Indeed, “[n]o matter which cause of action the Plaintiff[] rel[ies] on, the essence of [her] argument is that the battery was foreseeable. Sheridan does not apply, however, where an allegedly foreseeable battery was only foreseeable to the Defendant because it happened to be the assailant's employer.” Id. (citation omitted). Likewise, here, the United States is entitled to an order dismissing the first cause of action for lack of subject matter jurisdiction because the allegations arise out of an assault and battery and are excepted from the general waiver of sovereign immunity under the FTCA. See Ryan v. U.S., 156 F.Supp.2d 900, 907 (N.D. Ill. 2001) (holding that negligent hiring, supervision, or retention claims against the United States arose out of underlying assault and battery by USPS employee “where the plaintiff would have no claim but for the assault or battery,” and “such claims are barred by § 2680(h), unless the government owes an independent affirmative duty to the plaintiff”).
Second Cause of Action
In the second cause of action, the plaintiff alleges claims of negligent hiring, supervision, and retention against the United States (doc. 37, amend comp. ¶¶ 46-52). As argued by the federal defendants and as discussed at length above, this cause of action is precluded under the FTCA by 28 U.S.C. § 2680(h) as a claim arising out of the alleged assault and battery of the plaintiff by defendant Peppers as the plaintiff has not identified any independent affirmative duty owed to her by the USPS that is independent of its employment relationship with Peppers.
Furthermore, the defendants argue that this cause of action is precluded by the discretionary function exception to the FTCA's waiver of sovereign immunity (doc. 68 at 9-12). The undersigned agrees. The discretionary function exception provides that the United States is not liable for “[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). To determine whether the exception applies, the court conducts a two-step inquiry: first, the court must determine whether the challenged conduct “involves an element of judgment or choice,” and, second, if the conduct does involve discretionary judgment, then the court must determine “whether that judgment is of the kind that the discretionary function exception was designed to shield.” Berkovitz v. United States, 486 U.S. 531,536-37 (1988) (citations omitted). The Court of Appeals for the Fourth Circuit has held that decisions regarding the hiring, supervision, and retention of employees are protected under the discretionary function exception to the FTCA. LeRose, 285 Fed.Appx. at 97 (“The BOP's decisions regarding the hiring, supervision, and retention . . . are precisely the type of decisions that are protected under the discretionary function exception. . . . The hiring of an employee involves several public policy considerations including the weighing of the qualifications of candidates, weighing of the backgrounds of applicants, consideration of staffing requirements, evaluation of the experience of candidates, and assessment of budgetary and economic considerations. Because this process is multi-faceted, it is precisely the type of decision that Congress intended to shield from liability through the discretionary function exception.”); see also Suter v. United States, 441 F.3d 306, 311 n.6 (4th Cir. 2006) (“Appellants' claim that the FBI negligently hired and supervised [its employee] is barred by the discretionary function exception. Courts have repeatedly held that government employers' hiring and supervisory decisions are discretionary functions.”).
As argued by the federal defendants, the USPS' decisions regarding the hiring, retention, and supervision of Peppers and Merchant (1) involved an element of judgment (2) of the kind that the discretionary function exception was designed to shield. Accordingly, the United States is entitled to dismissal of the plaintiff's second cause of action for lack of subject matter jurisdiction under the discretionary function exception to the general waiver of sovereign immunity under the FTCA.
Further, as argued by the federal defendants (doc. 86 at 4-5), the plaintiff's reliance on Randall v. Prince George's County, Maryland, 302 F.3d 188 (4th Cir. 2002) in response to the motion to dismiss (see doc. 77 at 8) is misplaced. The test recited by the plaintiff is one for determining when a law enforcement officer may be liable for constitutional violations under 42 U.S.C. § 1883 on a theory of bystander liability, see Randall, 302 F.3d at 204, and has no relevance to the tort cause of action alleged against the United States under the FTCA that is at issue here.
Fourth Cause of Action
In the fourth cause of action, the plaintiff alleges violations of her Fourth and Fifth Amendment rights and equal protection rights against federal defendants Peppers and Merchant in their individual capacities pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (doc. 37, amend. comp. ¶¶ 66-71). The federal defendants argue that the plaintiff's claims arise in a new context that differs from the prior Supreme Court cases recognizing Bivens causes of action, and special factors counsel against extending Bivens to that new context (doc. 68 at 13-21). The undersigned agrees.
In Bivens, federal agents entered the plaintiff's apartment, arrested him in front of his family, and searched the entirety of his apartment, all without a warrant. 403 U.S. at 389. The Supreme Court of the United States in Bivens “recognized for the first time an implied cause of action for damages against federal officers alleged to have violated a citizen's rights under the Constitution and permitted the plaintiff to seek compensatory damages from federal agents alleged to have violated the Fourth Amendment.” Earle v. Shreves, 990 F.3d 774, 778 (4th Cir. 2021) (citing Bivens 403 U.S. at 396-97). In the wake of Bivens, however, the Supreme Court has been reluctant to imply other private actions against federal officers for money damages, recognizing a Bivens implied damages remedy in just two cases. In the first, Davis v. Passman, 442 U.S. 228 (1979), the Court held that the equal protection component of the Fifth Amendment's Due Process Clause provided a damages remedy for an administrative assistant who alleged that a Congressman fired her because she was a woman. Id. at 248-49. In the second, Carlson v. Green, 446 U.S. 14 (1980), the Court held that the Eighth Amendment's Cruel and Unusual Punishments Clause provided a damages remedy for the estate of a prisoner who died due to the alleged failure of federal jailers to treat his asthma. Id. at 19.
“In the almost 40 years since Carlson, however, the Court has declined to countenance Bivens actions in any additional context.” Tun-Cos v. Perrotee, 922 F.3d 514, 521 (4th Cir. 2019) (cataloguing nine Supreme Court cases rejecting Bivens claims). See Minneci v. Pollard, 565 U.S. 118, 120 (2012) (refusing to recognize a Bivens remedy where prisoners alleged that guards at a privately operated federal prison violated their Eighth Amendment rights); Wilkie v. Robbins, 551 U.S. 537, 541 (2007) (refusing to recognize a Bivens remedy where a landowner alleged that officials from the Bureau of Land Management violated the Due Process Clause); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 63 (2001) (refusing to recognize a Bivens remedy where a prisoner alleged that a private prison operator violated his Eighth Amendment rights); FDIC v. Meyer, 510 U.S. 471, 473-74 (1994) (refusing to recognize a Bivens remedy where an employee alleged that he was wrongfully terminated by a federal agency in violation of due process); Schweiker v. Chilicky, 487 U.S. 412, 414 (1988) (refusing to recognize a Bivens remedy for alleged violations of procedural due process by Social Security officials); United States v. Stanley, 483 U.S. 669, 671-72 (1987) (refusing to recognize a Bivens remedy where a serviceman alleged that military officers violated his substantive due process rights); Bush v. Lucas, 462 U.S. 367, 390 (1983) (refusing to recognize a Bivens remedy where a federal employee alleged that his supervisor violated his First Amendment rights);Chappell v. Wallace, 462 U.S. 296, 297 (1983) (refusing to recognize a Bivens remedy where enlisted servicemen alleged that their officers discriminated against them based on race).
“[E]xpanding the Bivens remedy is now a disfavored judicial activity.” Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017) (internal quotation marks omitted). As explained by the Court of Appeals for the Fourth Circuit in Earl v. Shreves, “Whether an implied damage remedy is available for a constitutional claim is logically 'antecedent' to any question about the merits of the claim.” 990 F.3d at 778 (quoting Hernandez v. Mesa,137 S.Ct. 2003 2006 (2017)). “Consistent with the Court's view that further expansion of the Bivens remedy was disfavored, the analytical framework established by the Ziglar Court places significant obstacles in the path to recognition of an implied cause of action.” Id. “First, courts must inquire whether a given case presents a ‘new Bivens context.' If the context is not new . . . then a Bivens remedy continues to be available.” Tun-Cos, 922 F.3d at 522-23 (quoting Ziglar, 137 S.Ct. at 1859). “But if the context is new, then courts must, before extending Bivens liability, evaluate whether there are ‘special factors counseling hesitation in the absence of affirmative action by Congress.' If any such ‘special factors' do exist, a Bivens action is not available.” Id. at 523 (quoting Ziglar, 137 S.Ct. at 1857).
The plaintiff's Bivens claims arise in a new context and raise multiple special factors. Accordingly, the district court should decline to recognize an implied damages remedy here. In considering the first question, whether this case presents “a new Bivens context,” the court must consider if the plaintiff's claims are “'meaningfully]' different from the three cases in which the Court has implied a damages action.” Egbert v. Boule, 142 S.Ct. 1793, 1803 (2022) (citing Ziglar, 137 S.Ct., at 1859-1860). Here, the alleged facts and rights in plaintiff's amended complaint (doc. 37) sharply diverge from those in any previously recognized Bivens claim. The plaintiff's claims focus on an altercation between a USPS worker and a customer-a completely different scenario and category of defendants than that in Bivens, Davis, and Carlson. This alone is enough to demonstrate that the context is new. See Tun-Cos, 922 F.3d at 525 (“[T]he Ziglar Court refused to extend Bivens to any new category of defendants . . ..” (citation and alterations omitted)). The plaintiff asserts-at least in name-violations of her “Fourth Amendment, Fifth Amendment, and [e]qual [protection rights” (doc. 37, amend. comp. ¶ 67). While the contours of the plaintiff's legal theory are unclear, her claims rest upon assertions of rights in contexts that were never at issue in a prior Bivens case. Bivens itself involved the Fourth Amendment “right to be free from unreasonable searches and seizures,” 403 U.S. at 392, and Davis involved the Fifth Amendment “right to be free from illegal discrimination” in a government workplace, 442 U.S. at 236. In contrast, the plaintiff asserts violations of a variety of rights in a context that have nothing to do with law enforcement or employment discrimination (doc. 37, amend. comp. ¶ 68) (alleging Merchant and Peppers violated her constitutional rights by attacking her, creating a situation where she was likely to be injured, refusing her medical care, limiting her right to due process through the FOIA, and by humiliating her). As argued by the federal defendants, that the amended complaint vaguely asserts violations of the plaintiff's “Fourth Amendment, Fifth Amendment, and [e]qual [protection rights” does not alter this analysis because “[a] claim may arise in a new context even if it is based on the same constitutional provision as a claim in a case in which a damages remedy was previously recognized.” Hernandez, 140 S.Ct. at 743.
The plaintiff argues that her Bivens claims do not arise in a new context because she “seeks the same remedy (money damages) for the same type of harm (violation of her Fourth Amendment right) against the same kind of actor (a federal employee) as Bivens sought against narcotics agents” (doc. 77 at 9). As noted by the federal defendants, the plaintiff's argument “ignores the last four decades of Supreme Court Bivens jurisprudence” (doc. 86 at 6) discussed above. Further, the plaintiff argues that because her claims do not involve national security or an international border they do not arise in a new context (doc. 77 at 9) (citing Egbert, 142 S.Ct. 193, and Hernandez, 140 S.Ct. 735). Of course, the national security implications and the proximity of the underlying events to the border in Egbert and Hernandez are by no means the only reason that a Bivens claim can arise in a new context. Again, the plaintiff's argument is meritless and ignores years of jurisprudence in which the Court has refused to extend Bivens into numerous contexts that involved neither national security nor the border. See, e.g., Minneci, 565 U.S. 118 (no claims against private operators of federal prison in California); Wilkie, 551 U.S. 537 (no claims against Bureau of Land Management officials in Wyoming); Schweiker, 487 U.S. 412 (no claims for denial of social security benefits).
Because the plaintiff's claims arise in a new context, the court must proceed to the special factors analysis. See Tun-Cos, 922 F.3d at 523. Importantly, “[i]f there is even a single 'reason to pause before applying Bivens in a new context,' a court may not recognize a Bivens remedy.” Egbert, 142 S.Ct. at 1803 (quoting Hernandez, 140 S.Ct. at 743). As part of this analysis, courts consider whether “any alternative, existing process for protecting the [injured party's] interest” is in place, Ziglar, 137 S.Ct. at 1858 (citing Wilkie, 551 U.S. at 550), which “alone may limit the power of the Judiciary to infer a new Bivens cause of action.” Id. Here, Congress has created multiple alternative processes to redress the type of harm the plaintiff alleges. The plaintiff can assert claims under common law tort and the FTCA. As argued by the federal defendants, the most natural vehicle for the plaintiff's claims, which in effect are common law tort claims for assault, battery, negligent hiring, and negligent supervision dressed up in constitutional garb, would be such causes of action. See Waybright v. Frederick Cnty., Md., 528 F.3d 199, 205 (4th Cir. 2008) (“[W]here a claim sounds both in state tort law and substantive due process, state tort law is the rule and due process the distinct exception[.]”). The Supreme Court has found that state law remedies offer an alternative process, see Minneci v. Pollard, 565 U.S. 111, 131 (2012), and multiple courts in this circuit have cited the FTCA's availability as a special factor counseling against the creation of a new Bivens remedy. See, e.g., Bulger v. Hurwitz, C. A. No. 3:20-cv-206, 2022 WL 340594, at *8 (N.D. W.Va. Jan. 12, 2022), appeal docketed No. 22-1106 (4th Cir. Feb. 3, 2022); Brown v. United States, C. A. No. 1:21-1688-JD-SVH, 2022 WL 331240, at *5 (D.S.C. Jan. 7, 2022), R&R adopted by 2022 WL 327669 (D.S.C. Feb. 3, 2022); Doe v. United States, 381 F.Supp.3d 573, 615 (M.D. N.C. 2019); Williams v. Lynch, C. A. No. 1:16-3043-DCC, 2018 WL 4140667, at *4 (D.S.C. Aug. 30, 2018).
Here, as discussed above with regard to the first and second causes of action, the plaintiff's claims fall under the FTCA's exceptions, see 28 U.S.C. § 2680, but this does not affect the FTCA's relevance as a special factor. See Oliveras v. Basile, 440 F.Supp.3d 365, 374 (S.D.N.Y. 2020) (“[J]ust because Congress has not enacted a remedial scheme that would satisfy plaintiff on the facts of his particular case does not mean that the alternative remedial scheme that it did pass is inadequate under Ziglar.” (quoting Sanford v. Bruno, C. A. No. 17 Civ. 5132(BMC), 2018 WL 2198759, at *7 (E.D.N.Y. May 14, 2018))). Instead, Congress's exemption of a particular category of conduct from liability is itself “legislative action suggesting that Congress does not want a damages remedy.” Williams, 2018 WL 4140667, at *4 (quoting Ziglar, 137 S.Ct. at 1865). As noted by the federal defendants, the Supreme Court took this very approach in Hernandez where the Court found that the FTCA's exception for claims arising in foreign countries demonstrated Congress's disapproval of damages claims based on events abroad. 140 S.Ct. at 748. A similar inference may be drawn here where exceptions to the waiver of sovereign immunity apply to the plaintiff's FTCA causes of action. Further, with regard to the plaintiff's allegation of a procedural due process claim related to her FOIA request (doc. 37, amend. comp. ¶ 68(d)), FOIA itself allows plaintiffs to appeal a denial of a request, 29 C.F.R. § 102.117, and to sue to compel compliance. 5 U.S.C. § 552(a)(4)(B). This is yet another alternative process that counsels against creating the remedy the plaintiff seeks. See Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 777 (D.C. Cir. 2002).
Another consideration in the special factors analysis is that the plaintiff's proposed cause of action would not be workable. See Wilkie, 551 U.S. at 555 (refusing to imply damages remedy because of “difficulty in defining a workable cause of action”). The undersigned agrees with the federal defendants that, to the extent the plaintiff's allegations implicate any constitutional provision, they are best viewed as alleging substantive due process violations. The Supreme Court has never recognized a Bivens claim for a substantive due process violation and rejected such a claim in Hernandez, 140 S.Ct. at 750. As argued by the federal defendants, the substantive due process analysis employs a notoriously murky standard for liability that would be a problematic basis for a Bivens claim. “The shocks-the-conscience test turns on degree of fault.” Waybright, 528 F.3d at 205. The Supreme Court has issued “no general rule” to determine when liability exists. Id. Indeed, “determining whether conduct is sufficiently egregious to amount to a [substantive due process] violation is far from an exact science,” Young v. City of Mount Ranier, 238 F.3d 567, 574 (4th Cir. 2001), and requires “an exact analysis of circumstances.” Lewis, 523 U.S. at 850. Thus, substantive due process offers an inherently malleable and unpredictable standard for liability that would provide a poor guide for government actors.
In her Bivens cause of action, the plaintiff alleges that Merchant and Peppers violated her “Fourth Amendment, Fifth Amendment, and [e]qual [protection rights” (doc. 37, amend. comp. ¶ 67). In her response to the motion to dismiss, however, the plaintiff focuses on the alleged Fourth Amendment violation (doc. 77 at 9-11). “The Fourth Amendment covers only searches and seizures.” County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998). There is no indication in the amended complaint that the plaintiff was searched by Merchant or Peppers, so the question is whether the amended complaint sufficiently alleges an unconstitutional seizure. “A seizure occurs where, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” U.S. v. Smith, 21 F.4th 122, 132 (4th Cir. 2021) (internal quotation marks and citation omitted). While the federal defendants argue that the plaintiff's Fourth Amendment claim fails because Merchant and Peppers are not law enforcement officers (doc. 68 at 23, 28), the Supreme Court has “never limited the Amendment's prohibition on unreasonable searches and seizures to operations conducted by the police.” New Jersey v. T.L.O., 469 U.S. 325, 333, 335 (1985) (discussing Supreme Court precedent applying the Fourth Amendment to other government actors such as firefighters and building inspectors and holding that it applies to searches conducted by public school officials). However, where governmental conduct is not actuated by an investigative or administrative purpose, it will not be considered a search or a seizure for Fourth Amendment purposes. U.S. v. Elliott, 676 F.Supp.2d 431,435 (D. Md. 2009) (citing U.S. v. Attson, 900 F.2d 1427, 1429-33 (9thCir. 1990)). Here, the plaintiff's amended complaint fails to allege facts plausibly suggesting that Merchant and/or Peppers were motivated by any investigatory or administrative purpose during their interaction with the plaintiff at the post office. Without such a purpose, the Fourth Amendment is not implicated. See Marotz v. City and Cnty. of San Francisco, C. A. No. 14-cv-4494-JCS, 2015 WL 970577, at *6-7 (N.D. Cal. Mar. 2, 2015). Further, while the plaintiff also alleges in the amended complaint that Peppers and Merchant violated her equal protection rights (doc. 37, amend comp. ¶ 67), she makes no factual allegations that she was treated in a discriminatory manner by either of these defendants. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (observing that the Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike”). Likewise, the plaintiff makes a conclusory assertion that the federal defendants violated her “right to [d]ue [p]rocess in her attempts to gain redress through the administrative process” (doc. 37, amend. comp. ¶ 68), but she pleads no facts supporting such a claim. Accordingly, the plaintiff has failed to state a claim that is plausible on its face against Peppers and Merchant for violations of her Fourth Amendment, equal protection, and procedural due process rights, leaving the Fifth Amendment's substantive due process protections as the only potential basis for the plaintiff's Bivens cause of action.
Third, creation of the remedy the plaintiff seeks would significantly expand the potential liability of federal officials, and therefore is best left to Congress. Authorizing a Fifth Amendment substantive due process Bivens remedy for the plaintiff's claims would open an expansive new frontier of individual capacity litigation, burdening government operations. See Egbert, 142 S.Ct. at 1808 (noting special factors counsel hesitation where a claim is “common” and “therefore more likely to impose a significant expansion of Government liability” (citation and internal quotation omitted)). The plaintiff's claims in this case involve a broad range of alleged misconduct, from Merchant and Peppers allegedly “attacking” the plaintiff, to “humiliating” her, to “creating a situation where [she] was likely to be injured” (doc. 37, amend. compl. ¶ 68). Authorizing such a broad new category of litigation is a task better suited to Congress, not the Judiciary. See Ziglar, 137 S.Ct. at 1857.
Based upon the foregoing, the district court should decline to extend the remedy under Bivens and should grant the motion to dismiss the plaintiff's constitutional claims against individual federal defendants Merchant and Peppers.
As the undersigned recommends that the district court decline to extend Bivens to the novel context presented by the plaintiff, the federal defendants' alternative argument that defendants Peppers and Merchant are entitled to qualified immunity (doc. 68 at 21-29) will not be addressed.
Sixth Cause of Action
In the sixth cause of action, the plaintiff alleges violation of 5 U.S.C. § 552 based on the USPS improperly withholding documents responsive to her FOIA request “in that the agency responded to the plaintiff's request by estimating a minimum cost of $468,048.00 for responsive documents” (doc. 37, amend comp. ¶¶ 78-81). The federal defendants argue that this cause of action should be dismissed based on the plaintiff's failure to exhaust her administrative remedies (doc. 68 at 29-31). The undersigned agrees.
The plaintiff states in the amended complaint that her FOIA request “is incorporated by reference” (doc. 37, amend comp. ¶ 80). While the plaintiff did not attach the FOIA request to her amended complaint, the defendant has attached as exhibits to the motion to dismiss the FOIA request, subsequent appeal, and other related correspondence between the plaintiff and the USPS (docs. 68-1 through 68-5). As noted above, the court may consider such documents on a Rule 12(b)(6) motion, even if the documents are not attached to the complaint, if the documents are “integral to and explicitly relied on in the complaint,” and there is no authenticity challenge. E.I. du Pont de Nemours & Co., 637 F.3d at 448 (citation omitted). That standard appears to be met here.
While not specifically stated, the federal defendants have presumably moved to dismiss the FOIA cause of action pursuant to Rule 12(b)(6) rather than Rule 12(b)(1), as they state in their argument that “exhaustion is not a jurisdictional requirement . . . but instead is a prudential consideration” (doc. 68 at 30) (citing Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003) (“[T]he exhaustion requirement is not jurisdictional because the FOIA does not unequivocally make it so.”)). Neither the Supreme Court nor the Fourth Circuit have addressed the issue, but district courts within this circuit have both “rejected the contention that the failure to establish a statutory prerequisite to a FOIA claim strips a court of subject-matter jurisdiction,” McKenzie-El v. IRS, C. A. No. ELH-19-1956, 2020 WL 902546, at *10 (D. Md. Feb. 24, 2020), and found that “'[a] failure to exhaust administrative remedies under FOIA deprives the courts of subject matter jurisdiction.'” Dagulo v. U.S., C. A. No. 2:18CV366, 2020 WL 2846488, at *5 (E.D. Va. Apr. 17, 2020) (quoting Gray v. Wash. Metro. Area Transit Auth., C. A. No. DKC 16-1792, 2017 WL 511910 *2 (D. Md. Feb. 8, 2017)). Given the lack of binding precedent on the issue, the undersigned has examined the sufficiency of the allegations in the amended complaint under Rule 12(b)(6) as moved by the federal defendants.
The FOIA vests federal courts with jurisdiction to enjoin “an agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B); also see Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980) (federal courts lack the authority to order the production of records unless there is a showing that an agency has improperly withheld agency records). The FOIA mandates disclosure of government records unless the requested information falls within one of nine enumerated exemptions. 5 U.S.C. § 552(b). Upon receipt of a request for records, an agency has twenty working days to “determine ... whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor.” Id. § 552(a)(6)(A)(i). This twenty-day period may be extended in “unusual circumstances” Id. § 552(a)(6)(B). To offset the cost of fulfilling document requests, the FOIA authorizes agencies to collect processing fees. Id. § 552(a)(4). “If a requester is not satisfied with an agency's response to a request, either because the requester disagrees with the fee assessment or the agency has refused to provide all requested documents that the requester believes are subject to disclosure under FOIA, the requester may file an administrative appeal.” Coleman v. DEA, 714 F.3d 816, 819-20 (4th Cir. 2013) (citing 5 U.S.C. § 552(a)(6)(A)(i)).Generally, a FOIA requester must exhaust his or her administrative remedies through the FOIA administrative process prior to seeking judicial review concerning his or her FOIA request. Id. at 820. “Exhaustion [of administrative remedies] does not occur until the required fees are paid or an appeal is taken from the refusal to waive fees.” Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 66 (D.C. Cir. 1990). See also Pollack v. Dep't of Just., 49 F.3d 115, 119-20 (4th. Cir. 1995) (characterizing the payment of fees as a “statutory obligation”).
Here, the plaintiff initially requested six categories of documents from the USPS (docs. 68-1,68-2). The plaintiff states that her request number 5 was later withdrawn (doc. 16 at 7). Request numbers 2, 3, and 4 requested all surveillance footage from March 6, 2020 (the date of the incident), the personnel files and disciplinary files of all USPS employees on duty at the time of the incident, and any incident reports pertaining to the incident (Id.; doc. 68-1). According to the plaintiff, on April 15, 2020, in response to request numbers 2, 3, and 4, the USPS estimated that, at a minimum, the requests would cost $468,048.00 for responsive documents (doc. 16 at 7-8). The plaintiff's request numbers 1 and 6, which were for the time sheets of employees at the Salem Post Office on the date of the incident and for all policies and procedures relevant to the employees of the Salem Post Office, were denied by the USPS on May 26, 2020 (doc. 68-3). On June 4, 2020, the plaintiff appealed the denial of request numbers 1 and 6 (doc. 68-4), and it was assigned appeal number 2020-APP-00077 (doc. 68-5). The appeal did not mention the alleged production fees required by the USPS for request numbers 2, 3, and 4 (see doc. 68-4). Accordingly, the plaintiff did not exhaust her administrative remedies with regard to her requests for which the USPS required fees of $468,048.00, which is the claim that she brings her amended complaint. The plaintiff has failed to allege that she paid the fee, applied for a fee waiver, was granted or denied a fee waiver, appealed any refusal to waive fees, or in any other way disputed the USPS's fee determination. See Caetano v. Internal Rev. Serv., C. A. No. 1:22-837-JLT-SAB, 2022 WL 3327493, at *7 (E.D. Cal. Aug. 11,2022) (finding plaintiff failed to allege facts sufficient to establish subject matter jurisdiction over FOIA claim and failed to state a cognizable claim under the FOIA where nowhere in the complaint did he allege “that he paid the fees, applied for a fee waiver, was granted a fee waiver, was denied a fee waiver, or appealed any refusal to waive fees” (citations omitted)); see also Aguirre v. U.S. Nuclear Reg. Comm., 11 F.4th 719, 726-27 (9th Cir. 2021) (FOIA requestor failed to exhaust where he did not pay the required fees, and his appeal letter attacked the agency's delayed response and production timeline but did not dispute the agency's fee determination). Accordingly, the plaintiff has failed to exhaust her administrative remedies with regard to the fee issue, and, therefore, her FOIA claim should be dismissed for failure to state a claim.
The plaintiff states that “it is unclear what more [she] could have done to handle the Postal Service's refusal to comply with [the] FOIA” (doc. 77 at 13). On the contrary, at least one option is clear; the plaintiff could have addressed the fee issue in the appeal she filed as to her other FOIA requests.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the federal defendants' motion to dismiss (doc. 68) should be granted. Because no additional allegations will cure the identified legal deficiencies in the plaintiff's claims against the federal defendants in her amended complaint, the plaintiff should not be granted leave to amend.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street, Suite 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).