# FOSNIGHT v. United States

> District Court, S.D. Indiana · July 8, 2022

URL: https://www.frixlaw.com/law-library/cases/10169194

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** July 8, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10169194

## How later opinions describe it (automated extraction)

- rejecting FTCA negligence claim based on Brady violation because "appellants have not pointed to any instance in which Wisconsin has imposed private liability . . . for a failure to disclose exculpatory evidence." (emphasis in original)
- noting that in considering a motion to dismiss, courts may take judicial notice of facts readily ascertainable from public court records, including existence and timing of complaint in separate litigation

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

RONALD DAVID FOSNIGHT, II, and )
PARAKLESE TECHNOLOGIES, LLC, )
)
Plaintiffs, )
)
v. ) Case No. 4:20-cv-00119-TWP-DML
)
THE UNITED STATES OF AMERICA, )
)
Defendant. )

ORDER GRANTING MOTION TO DISMISS AMENDED COMPLAINT
This matter is before the Court on a Motion to Dismiss filed pursuant to Federal Rule of
Civil Procedure 12(b)(6) by Defendant the United States of America (the "United States") (Filing
No. 21). Plaintiffs Ronald David Fosnight, II ("Fosnight"), and his company, Paraklese
Technologies, LLC ("Paraklese") (together, "Plaintiffs") filed this lawsuit asserting claims under
the Federal Tort Claims Act ("FTCA") following the search and seizure of Plaintiffs' property by
the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"). The United States asserts
that Plaintiffs' claims are not actionable under the FTCA, are insufficiently pleaded, and are
exempt from the FTCA's coverage. Because this Court lacks subject matter jurisdiction, the United
States' Motion is granted.
I. BACKGROUND
The following facts are not necessarily objectively true, but as required when reviewing a
motion to dismiss, the Court accepts as true all factual allegations in the complaint and draws all
inferences in favor of Plaintiffs as the non-moving party. See Bielanski v. Cnty. of Kane, 550 F.3d
632, 633 (7th Cir. 2008).
Paraklese manufactures solvent traps1 and other firearm accessories (Filing No. 19 at ¶ 16).
Paraklese's solvent traps are capable of being converted into firearm silencers. Id. When Paraklese
began operations in 2016, ATF Agents advised Fosnight that Paraklese's solvent traps were not
classifiable as silencers under federal law. Id. at ¶ 18. On June 20, 2017, ATF Agents and Indiana

State Police officers searched Paraklese's facility and seized $21,000 worth of inventory, including
its solvent traps. Id. at ¶¶ 19, 21. The ATF Agents stated they were acting pursuant to a "sealed
warrant" and that the ATF had published a "Determination Letter" stating that the "index markers"
on Paraklese's solvent traps caused them to be classified as silencers. Id. at ¶ 22. Despite Fosnight's
multiple requests during the search and over the course of the next two years, the ATF never
produced a copy of the Determination Letter. Id. at ¶ 25, 29, 32–34.
The ATF's search lasted approximately two and a half hours. Id. at ¶ 25. Throughout the
search, the ATF Agents persistently questioned Fosnight without first advising him of his Miranda
rights and repeatedly discouraged him from continuing Paraklese's operations. Id. at ¶¶ 25–26.
The ATF Agents threatened that if Fosnight continued manufacturing and selling solvent traps,

they would return, and Fosnight would lose his Federal Firearm License. Id. at ¶ 26.
A few weeks later, on July 12, 2017, one of the ATF Agents visited a machinist shop that
manufactured Paraklese's solvent traps. Id. at ¶ 30. Following the visit, the machinist shop refused
to continue working with Plaintiffs. Id. Plaintiffs have been unable to contract with another
machinist shop to perform services at a similar rate. Id. at ¶ 31. Fosnight also alleges that "rumors"
related to the ATF raid have harmed Paraklese's business. Id. at ¶ 31.

1 Solvent traps are firearm accessories that prevent the loss of solvent from the firearm's barrel during cleaning (Filing
No. 1 at ¶ 16).
On June 19, 2019, Plaintiffs filed a complaint in a separate case in this Court against several
ATF Agents. See Fosnight v. Jones, et al., No. 4:19-cv-00134-JMS-DML (S.D. Ind. Dec. 4, 2019)
("Fosnight I").2 In Fosnight I, Plaintiffs asserted claims under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) ("Bivens") for alleged violations of

the Fourth and Fifth Amendments. The Fosnight I defendants filed a motion to dismiss, and the
Court dismissed Plaintiffs' claims with prejudice on December 4, 2019. Plaintiffs' appealed the
dismissal, and the appeal is still pending.
On June 2, 2020, Plaintiffs initiated this action naming the same defendants as in
Fosnight I, asserting claims under the FTCA for "constitutional violations and constitutional torts"
(Filing No. 1 at 2). On September 21, 2020, the then-defendants moved to dismiss the Complaint,
arguing in part that Plaintiffs were attempting to relitigate their Bivens claims (Filing No. 10).
Plaintiffs then requested leave to amend their Complaint, which the Court granted (Filing No. 15;
Filing No. 18). On September 27, 2021, Plaintiffs filed their Amended Complaint asserting
negligence and gross negligence claims under the FTCA (Filing No. 19). The United States seeks

dismissal of the Amended Complaint for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6).
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a defendant to move to dismiss a complaint
that has failed to "state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). When
deciding a motion to dismiss under Rule 12(b)(6), the court accepts as true all factual allegations

2 The Court may take judicial notice of Plaintiffs' Complaint in Fosnight I and its dismissal without converting the
United States' Motion to a motion for summary judgment. Watkins v. United States, 854 F.3d 947, 950 (7th Cir. 2017)
(noting that in considering a motion to dismiss, courts may take judicial notice of facts readily ascertainable from
public court records, including existence and timing of complaint in separate litigation).
in the complaint and draws all inferences in favor of the plaintiff. Bielanski, 550 F.3d at 633.
However, courts "are not obliged to accept as true legal conclusions or unsupported conclusions
of fact." Hickey v. O'Bannon, 287 F.3d 656, 658 (7th Cir. 2002).
The complaint must contain a "short and plain statement of the claim showing that the

pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). In Bell Atlantic Corp. v. Twombly, the United
States Supreme Court explained that the complaint's allegations must " raise a right to relief above
the speculative level." 550 U.S. 544, 555 (2007). Although "detailed factual allegations" are not
required, mere "labels," "conclusions," or "formulaic recitation[s] of the elements of a cause of
action" are insufficient. Id.; see also Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 603 (7th
Cir. 2009) ("[I]t is not enough to give a threadbare recitation of the elements of a claim without
factual support"). The allegations must "give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests." Twombly, 550 U.S. at 555. Stated differently, the complaint
must include "enough facts to state a claim to relief that is plausible on its face." Hecker v. Deere
& Co., 556 F.3d 575, 580 (7th Cir. 2009) (citation and quotation marks omitted). To be facially

plausible, the complaint must allow "the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly,
550 U.S. at 556).
Although the United States seeks dismissal only under Rule 12(b)(6), dismissal under Rule
12(b)(1) for lack of jurisdiction may also be appropriate. Fed. R. Civ. P. 12(b)(1). By arguing
Plaintiffs' claims are not actionable under the FTCA, the United States has invoked sovereign
immunity. "Absent a waiver, sovereign immunity shields the Federal Government and its agencies
from suit." F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). The FTCA waives sovereign immunity
as to certain tort claims. 28 U.S.C. § 1346(b). "In most cases, a plaintiff's failure to state a claim
under Rule 12(b)(6) does not deprive a federal court of subject-matter jurisdiction." Brownback
v. King, 141 S. Ct. 740, 749 (2021). But "in the unique context of the FTCA, all elements of a
meritorious claim are also jurisdictional." Id. Therefore, if Plaintiffs fail to sufficiently plead an
FTCA claim under Rule 12(b)(6), then the United States retains sovereign immunity, and the Court

lacks subject-matter jurisdiction. In such cases, "the district court may dismiss the claim under
Rule 12(b)(1) or Rule 12(b)(6). Or both. The label does not change the lack of subject-matter
jurisdiction, and the claim still fails on the merits because it does not state a claim upon which
relief can be granted." Id. at 749, n.8.
II. DISCUSSION
The United States contends that dismissal is required for several reasons. In particular, they
argue that Plaintiffs' negligence and gross negligence claims are not actionable under the FTCA,
the claims are insufficiently pleaded, and are barred by the FTCA's "detention of goods" exception
and not subject to any re-waiver. In addition, the United States argues the Plaintiffs are barred
from asserting any intentional tort claims and from recovering punitive damages under the FTCA.
The United States first argument˗˗that Plaintiffs' negligence and gross negligence claims are, in

substance, constitutional tort claims alleging violations of the Fourth and Fifth Amendments,
which are not cognizable under the FTCA˗˗presents a threshold question of sovereign immunity
and is dispositive of Plaintiffs' claims, so the Court will not (and lacks jurisdiction to) address the
remaining arguments.
The FTCA waives sovereign immunity and permits plaintiffs to assert claims
'[1] against the United States, [2] for money damages, . . . [3] for injury or loss of
property, or personal injury or death [4] caused by the negligent or wrongful act or
omission of any employee of the Government [5] while acting within the scope of
his employment, [6] 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.'
Meyer, 510 U.S. at 477 (alterations and omission in original) (emphasis added) (quoting 28 U.S.C.
§ 1346(b)). The United States contends Plaintiffs have not sufficiently alleged the sixth element
of an FTCA claim. The Supreme Court has explained that the FTCA's "reference to the 'law of
the place' means law of the State—the source of substantive liability under the FTCA." Id.

(quoting 28 U.S.C. § 1336(b)). In other words, the FTCA waives immunity only as to tort claims
arising under state law. Meyer, 510 U.S. at 477–78. And because "federal law, not state law,
provides the source of liability for a claim alleging the deprivation of a federal constitutional right,"
constitutional tort claims are not cognizable under § 1346(b). Id. at 478. ("[T]he United States
simply has not rendered itself liable under [the FTCA] for constitutional tort claims."). Id.
Plaintiffs' Amended Complaint is largely the same as their Bivens Complaint in Fosnight I,
except for the removal of references to "constitutional torts," and the addition of references to
"negligence" and "gross negligence," and a recitation of the elements of a common law negligence
claim3 (Filing No. 1 at p. 1, ¶¶ 3–4,10, 46–54). Although Plaintiffs may pursue both Bivens and
FTCA actions based on the same government misconduct, their FTCA action must identify a state

law tort claim separate and distinct from a constitutional tort claim actionable under Bivens.
Manning v. United States, 546 F.3d 430, 431 (7th Cir. 2008) ("If a federal law enforcement officer
commits a tort, the victim has two distinct avenues of relief: he may pursue a constitutional tort
claim against the individual officer under Bivens . . . , or he may pursue a common law tort claim
against the United States pursuant to the Federal Tort Claims Act."). Here, Plaintiffs have not
identified a distinct state law tort claim.

3 Plaintiffs also add allegations regarding the United States' "established policy, custom, and practice" (Filing No. 19
at 4–5, 47), which are not required to plead tort claims under the FTCA and are instead required to plead municipal
liability for constitutional violations under 42 U.S.C. § 1983. Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978).
Plaintiffs argue they have sufficiently pleaded state law claims for negligence and gross
negligence by alleging the ATF owed Plaintiffs "a duty to perform its constitutional duties without
violating the Fourth and Fifth Amendments," that it "violated and breached this duty when it
conducted the search in violation of the Fourth and Fifth Amendments," and that ATF's breach

caused a deprivation of Plaintiffs' constitutional right to property and their "freedom to operate a
lawful business" (Filing No. 25 at 10).4 The United States responds that despite formulating their
claims as state law claims, Plaintiffs have premised their claims on constitutional violations, which
are not actionable under the FTCA. The Court agrees with the United States.
Constitutional duties do not give rise to liability under the FTCA. The FTCA "applies to
torts, as defined by state law—that is to say, 'circumstances where the United States, if a private
person, would be liable" under state law—and "[t]he Constitution governs the conduct of public
officials, not private ones." Linder, 937 F.3d at 1090; see Hutchinson v. State, 477 N.E.2d 850,
853 (Ind. 1985) ("The state and federal constitutional provisions do not apply to unauthorized acts
of private citizens."); see also Smith v. United States, 678 F. App'x 403, 406 (7th Cir. 2017) (citing

Meyer, 510 U.S. at 477–78) ("[T]o the extent Smith asserts that she can state a claim under the
FTCA for a violation of her due process rights, she is mistaken.").
Plaintiffs' claims are clearly constitutional tort claims and are therefore not actionable
under the FTCA (Filing No. 1 at ¶¶ 2–4, 49–51; Filing No. 25 at 10–11). See, e.g., Boulduc v.
United States, 402 F.3d 50, 57 (1st Cir. 2005) (rejecting FTCA negligence claim based on Brady
violation because "appellants have not pointed to any instance in which Wisconsin has imposed
private liability . . . for a failure to disclose exculpatory evidence." (emphasis in original)); Popovic

4 Plaintiffs filed their response to the United States' Motion in duplicate, Filing No. 25 and Filing No. 26. The Court
will cite only one of them, that being Filing No. 25.
v. United States, 175 F.3d 1015 (Table), at *6 (4th Cir. 1999) ("While he cloaks the claims in terms
of negligence, they clearly are claims that his investigation was not conducted fairly. As such, they
are constitutional claims: (1) that federal law controls; and (2) for which a private person (who is
not acting under color of state law) would not be liable."); Orellana v. United States, No. DKC 20-

0845, 2021 WL 1251888, at *3, n.4 (D. Md. Apr. 5, 2021) ("Plaintiff's claims for negligence and
gross negligence are claims for excessive force in effecting a seizure. Thus, in reality, such claims
assert constitutional torts under the Fourth Amendment and are not merely common law torts as
Plaintiff labels them."); Nieves v. United States, 261 F. Supp. 3d 272, 276 (D.P.R. 2015) ("The
remaining plaintiffs cite no authority suggesting that the manner in which the agents executed the
valid arrest warrant was tortious under Puerto Rico law and would result in private liability ….
[so] their FTCA claims are dismissed."); Truesdale v. United States Dep't of Justice, 657 F. Supp.
2d 219, 229 (D.D.C. 2009) ("According to plaintiff, defendants' negligence amounts to the
violation of rights protected under the First, Fourth, Fifth, Sixth, Seventh, Eighth and Thirteenth
Amendments to the United States Constitution. Because the FTCA does not waive liability for

constitutional torts, plaintiff's FTCA claim cannot survive the defendants' motion to dismiss.").
Plaintiffs do not offer any other theory on which their claims might prevail. “[W]hen
presented with a motion to dismiss, the non-moving party must proffer some legal basis to support
his cause of action." Stransky v. Cummins Engine Co., 51 F.3d 1329, 1335 (7th Cir. 1995).
Although district courts must consider whether a plaintiff could prevail under any legal theory,
"[t]he federal courts will not invent legal arguments for litigants.” Id.; see Kirksey v. R.J. Reynolds
Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999) (“Our system of justice is adversarial, and our
judges are busy people. If they are given plausible reasons for dismissing a complaint, they are
not going to do the plaintiff's research and try to discover whether there might be something to say
against the defendants’ reasoning.”); United States v. Hook, 195 F.3d 299, 310 (7th Cir. 1999) ("A
party's failure to develop an argument constitutes a waiver of that claim, as '[i]t is not the obligation
of this court to research and construct the legal arguments open to parties, especially when they
are represented by counsel.'") (quoting Kauthar SDN BHD y. Sternberg, 149 F.3d 659, 668 (7th
Cir. 1998)). "[Plaintiffs] did not take advantage of [their] opportunity to brief [any] additional
theories to the district court in [their] memorandum in opposition to [the] motion to dismiss, and
[their] failure to do so results in waiver." Farnham vy. Windle, 918 F.2d 47, 51 (7th Cir. 1990).
Because Plaintiffs’ claims are not cognizable under the FTCA, their Amended Complaint
must be dismissed for lack of subject-matter jurisdiction.
Il. CONCLUSION
For the reasons stated above, the Court GRANTS the United States’ Motion to Dismiss.
(Filing No. 21).Plaintiffs' claims are dismissed without prejudice. Final judgment will issue
under separate order.
SO ORDERED.
Date: 7/8/2022 ( \a an 4 \ Jaton \rcatt
DISTRIBUTION: Hon. TanYa Walton Pratt, Chief Judge
United States District Court
John Andrew Goodridge Southern District of Indiana
JOHN ANDREW GOODRIDGE LAW OFFICE
jagoodridge@jaglo.com
Gina M. Shields
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
Gina.Shields@usdoj.gov

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10169194. Public record. Not legal advice.