Opinion
3:21-cv-00606-SB
12-28-2021
ROBERT V. SHIPMAN, Plaintiff v. UNITED STATES OF AMERICA, acting through the UNITED STATES POSTAL SERVICE, Defendant.
FINDINGS AND RECOMMENDATION
STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Robert V. Shipman (“Shipman”) filed this action against the United States of America (the “United States” or “Defendant”), acting through the United States Postal Service (“USPS”), asserting that Defendant is liable for negligence under the Federal Tort Claims Act (“FTCA”). Defendant moves to dismiss Shipman's complaint because the FTCA's intentional tort exception provides Defendant with sovereign immunity from liability for intentional torts. (ECF No. 5.) The Court has jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons that follow, the Court recommends that the district judge grant Defendant's motion to dismiss.
BACKGROUND
On or about September 18, 2018, Shipman, a truck driver employed by a USPS contractor, arrived at a USPS facility in Portland, Oregon. (Compl. ¶¶ 8-9, ECF No. 1.) While Shipman was loading mail into his truck, USPS employee Jerry Beers (“Beers”) began arguing with Shipman about Shipman's mail-loading method and Beers became “agitated and angry.” (Id. ¶¶ 9-10.) Shipman alleges that Beers “violently slung a large over-the-road (OTR) mail cart filled with mail toward [Shipman].” (Id. ¶ 10; see also Id. ¶ 14 (alleging that Beers “violently [slung] an OTR mail cart at [Shipman]”)). Shipman attempted to “deflect and decelerate the cart, weighing more than 350 pounds, with both arms” but the “cart struck [Shipman's] left knee and strained his right arm.” (Id. ¶ 10.)
On April 22, 2021, Shipman filed a complaint for damages against the United States under the FTCA, alleging that Beers “breached the duty of care owed to [Shipman]” and “acted in the course and scope of his employment with the USPS when he pushed the OTR cart at and struck [Shipman].” (Id. ¶¶ 14, 16.) Shipman asserted one cause of action for negligence. (Id. ¶¶ 13-16.)
DISCUSSION
I. STANDARD OF REVIEW
Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes motions to dismiss for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (“By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.”). In evaluating a facial challenge under Rule 12(b)(1), the Court accepts the allegations in the complaint as true and draws all reasonable inferences in the plaintiff's favor. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004) (“[T]he defendants argue that the allegations in [the] complaint are insufficient on their face to establish subject matter jurisdiction. Whether subject matter jurisdiction exists therefore does not depend on resolution of a factual dispute, but rather on the allegations in [the] complaint. We assume [the plaintiff's] allegations to be true and draw all reasonable inferences in his favor.”). Under the circumstances present here, the government has the burden of proving lack of subject matter jurisdiction. See Prescott v. United States, 973 F.2d 696, 702 (9th Cir. 1992) (“We thus hold explicitly that the United States bears the burden of proving the applicability of one of the exceptions to the FTCA's general waiver of immunity.”).
II. SUBJECT MATTER JURISDICTION
Defendant argues that the Court should dismiss Shipman's complaint for lack of subject matter jurisdiction because the FTCA's intentional tort exception applies here and is an exception to the government's waiver of sovereign immunity. (Def.'s Mot. to Dismiss at 2.) For the reasons explained below, the court agrees and recommends that the district judge grant Defendant's motion to dismiss.
A. Applicable Law
“The United States is immune from suit unless it consents to be sued.” Edison v. United States, 822 F.3d 510, 517 (9th Cir. 2016) (citation omitted). “The FTCA waives the government's sovereign immunity for tort claims arising out of negligent conduct of government employees acting within the scope of employment.” Morales v. United States, 895 F.3d 708, 713 (9th Cir. 2018) (citing 28 U.S.C. § 1346(b)(1)). However, the immunity waiver is limited by a number of statutory exceptions, including “[a]ny claim arising out of assault [or] battery[.]” 28 U.S.C. § 2680(h). “If [the plaintiff's] causes of action fall within one or more of these exceptions, then the federal courts lack subject matter jurisdiction to hear her claims.” Nurse v. United States, 226 F.3d 996, 1000 (9th Cir. 2000) (citation omitted).
B. Analysis
The question before the Court is whether Shipman's claim-despite its label as a negligence claim-arises out of a battery and therefore falls within the intentional tort exception to the government's waiver of sovereign immunity.
Shipman argues that his claim does not fall within the intentional tort exception because he did not plead a battery claim and his complaint does not include any allegations of intentional conduct. (Pl.'s Resp. at 4-6.) However, the Ninth Circuit has emphasized that “[r]egardless of the plaintiff's characterization of the cause of action, § 2680(h) bars suit for claims based on conduct which constitutes one of the excepted torts[.]” Sheehan v. United States, 896 F.2d 1168, 1171 (9th Cir. 1990) (emphasis added), amended by 917 F.2d 424 (9th Cir. 1990); see also Sabow v. United States, 93 F.3d 1445, 1456 (9th Cir. 1996) (holding that courts must “look beyond a plaintiff's classification of the cause of action to examine whether the conduct upon which the claim is based constitutes one of the torts listed in § 2680(h)”) (citation omitted); Mt. Homes, Inc. v. United States, 912 F.2d 352, 355 (9th Cir. 1990) (finding that a court “must analyze ‘the conduct upon which the cause[] of action alleged' rests”) (citing Sheehan, 896 F.2d at 1170). “If the gravamen of Plaintiff's complaint is a claim for an excluded tort under § 2680(h), then the claim is barred.” Snow-Erlin v. United States, 470 F.3d 804, 808 (9th Cir. 2006) (affirming the district court's dismissal of the plaintiff's claim alleging “negligent miscalculation” of a parole date where “the gravamen of the complaint is a claim for false imprisonment”).
The Ninth Circuit has instructed courts to evaluate the elements of a tort claim within the meaning of the intentional tort exception. See Woods v. United States, 720 F.2d 1451, 1453 n.2 (9th Cir. 1983) (“The issue, therefore, is not what constitutes a battery within the meaning of [state] law, but within the meaning of § 2680(h) of the [FTCA].”). The Ninth Circuit refers to the Restatement of Torts to determine the essential elements of a tort claim within the meaning of the intentional tort exception. See, e.g., Sheehan, 896 F.2d at 1171 n.4 (relying on the Restatement of Torts for the elements of an assault claim). The Restatement of Torts provides that an “actor is subject to liability to another for battery” if “(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact” and “(b) an offensive contact with the person of the other directly or indirectly results.” Restatement (Second) of Torts § 18 (Am. Law. Inst. 1965). The Court must determine if the conduct Shipman alleges here satisfies these elements of a battery claim.
Shipman alleges that Beers was agitated and angry with him, and violently slung his 350-pound mail cart “toward” and “at” Shipman, which struck and injured Shipman. (Compl. ¶¶ 9-10, 14.) Although Shipman does not allege that Beers “intended” to cause the cart to make contact with Shipman, the only reasonable inference from Shipman's allegations is that Beers intended to strike Shipman with the mail cart or, at the very least, intended to cause an imminent apprehension of such a contact. Cf. Baker v. U.S. Dep't of Agric., No. 04-6033-HO, 2004 WL 1274407, at *3 (D. Or. June 8, 2004) (finding that in evaluating whether the plaintiff's claim was based on conduct that constituted false imprisonment, “[t]hat plaintiff was aware of the confinement can be inferred from the allegations” that the individual “repeatedly and intentionally blocked his attempts to leave”). The Court finds that Shipman's factual allegations infer that Beers either intended to strike Shipman with his mail cart or intended to cause an imminent apprehension of contact, and that Beers's intentional conduct resulted in the mail cart striking Shipman. Thus, Shipman alleges conduct that constitutes a battery, and his claim necessarily arises out of the alleged battery. Accordingly, the FTCA's intentional tort exception to the government's sovereign immunity waiver applies here. See Mayer v. United States, No. 6: 18-CV-00230-MK, 2019 WL 5655007, at *4 (D. Or. Oct. 16, 2019) (finding that the FTCA's intentional tort exception barred the plaintiff's claim where “although Plaintiff titles his first claim as ‘Negligence,' the gravamen of the complaint is a claim for false imprisonment”), report and recommendation adopted by 2019 WL 5654301 (D. Or. Oct. 31, 2019); see also Mendenhall v. United States, No. 3: 20-CV-00312 SLG, 2021 WL 2004780, at *4 (D. Alaska May 19, 2021) (“Simply put, without the intentional tortious actions of the security guards, Plaintiff would have no claim for relief. Accordingly, although Plaintiff ‘couched [his] complaint in terms of the breach of a duty,' the gravamen of the complaint is a claim for assault, battery, and false imprisonment. Plaintiff's negligence claims against the . . . security guards are therefore barred under § 2680(h).”); Akmal v. United States, No. CV 12-1499RSL, 2013 WL 3406256, at *3 (W.D. Wash. July 8, 2013) (“Plaintiff's characterization of her FTCA claims as negligence claims is nothing more than an attempt to avoid the enumerated exceptions to the FTCA.”).
In summary, the Court finds that the intentional tort exception to the FTCA's sovereign immunity waiver applies here. The United States is immune from liability for the alleged conduct, and the Court therefore lacks subject matter jurisdiction.
CONCLUSION
For the reasons stated, the Court recommends that the district judge GRANT Defendant's motion to dismiss (ECF No. 5) with leave to amend, provided Shipman can amend the complaint consistent with the requirements set forth in Fed.R.Civ.P. 11(b).
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.