Evans v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

EASTERN DIVISION

NO. 4:21-CV-45-FL

MITCHELL GARNET EVANS, Executor )

of the Estate of Sallie Copeland Evans, )

)

Plaintiff, )

)

ORDER

v. )

)

UNITED STATES OF AMERICA, )

)

Defendant. )

This matter comes before the court on defendant’s motion to dismiss pursuant to Federal

Rules of Civil Procedure 12(b)(1) and (6). (DE 18). Pursuant to 28 U.S.C. § 636(b)(1)(B) and

Federal Rule of Civil Procedure 72(b), United States Magistrate Judge Robert T. Numbers, II,

entered memorandum and recommendation (“M&R”), wherein it is recommended that the court

grant the motion. (DE 27). Plaintiff timely objected to the M&R. In this posture, the issues raised

are ripe for ruling. For the following reasons, the motion is granted.

STATEMENT OF THE CASE

Plaintiff commenced this action April 8, 2021, asserting that defendant is liable for the

wrongful death of plaintiff’s mother, Sallie Copeland Evans (the “decedent”), at the hands of Isaiah

Evans Ceaser (“Ceaser”), plaintiff’s nephew and decedent’s grandson, based on negligent and

wrongful acts and omissions by defendant’s employees, pursuant to the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. § 2671 et seq. Plaintiff seeks compensatory damages and costs.

Plaintiff attaches to his operative, amended complaint1 1) a December 8, 2020, letter from

the United States Department of the Navy denying plaintiff’s administrative FTCA claim, 2) a

“Communication Event Report” summarizing a conversation between law enforcement and a

United States Marine Corps (“Marine Corps”) sergeant from Fort Benning, Georgia, and 3)

screenshots of text messages between a “Captain Smith” and plaintiff. Defendant moves to dismiss

the complaint on the bases that the court lacks subject matter jurisdiction over plaintiff’s claim and

the complaint fails to state a claim upon which relief can be granted.

After referral, the magistrate judge heard argument from the parties and entered M&R

thereafter. The magistrate judge recommends that defendant’s motion be granted on the basis of

the court’s lack of subject matter jurisdiction. The magistrate judge did not reach defendant’s Rule

12(b)(6) argument. Plaintiff objects specifically to the magistrate judge’s conclusion and analysis

regarding the court’s subject matter jurisdiction.

STATEMENT OF FACTS

The court incorporates herein for ease of reference the facts set forth in the M&R.

In March 2018, Isaiah Ceaser was stationed at Fort Benning in Georgia to

attend combat training school with his unit. Am. Compl. ¶¶ 9, 10. At the end of the

month, he left Georgia without permission and made his way to North Carolina. Id.

¶¶ 10, 12. Among the things that Ceaser left behind at Fort Benning was “a note

stating that he was going to end it all and kill himself.” Id. ¶ 10. Ceaser’s

commanding officer, Captain Smith, [“Smith”] learned about the note. Id. ¶ 10.

In response, a sergeant in Ceaser’s unit contacted law enforcement in Nash

County, North Carolina where some of Ceaser’s acquaintances lived. Id. He shared

that “Ceaser had gotten into trouble and left a note indicating that he was going to

end it all[.]” Id. ¶ 11. The note also stated that Ceaser wanted to visit his mother

who was at an inpatient medical facility in Halifax County, North Carolina. Id.

Several of Ceaser’s family members called Smith to let him know that

Ceaser was in North Carolina “and needed to be picked up by the Marine Corps[.]”

Id. ¶ 12. In response, Smith arranged for Ceaser to fly from North Carolina back to

1 Hereinafter, all references to the complaint in the text or “Compl.” in citations are to plaintiff’s amended

complaint. (Am. Compl. (DE 16)).

Georgia. Id. ¶ 13. Ceaser boarded the flight, but within a few days he returned to

his grandfather’s home in Halifax County. Id. ¶¶ 14, 15.

Upon Ceaser’s return to the area, his family members again reached out to

Smith. Id. ¶ 16. They told him that Ceaser was in Halifax County and that they

“were concerned and afraid something could happen.” Id. ¶ 16. [The decedent,]

Sallie[,] asked Smith why the Marine Corps had not apprehended Ceaser and asked

if Smith could have local law enforcement pick Ceaser up. Id. ¶ 17.

Sallie, along with her daughter-in-law, spoke to Smith again the next day.

Smith shared that Ceaser was under investigation for fraud. Id. ¶ 18. He also told

them he had found several “disturbing” letters and notes from Ceaser. Id. These

writings revealed that Ceaser intended to harm himself and others. Id. Smith said

that he was “very concerned” by the notes and advised Sallie to be careful around

Ceaser. Id.

That same day, Sallie again reached out to Smith. Id. ¶ 19. She asked “Smith

to have Ceaser detained.” Id. He said that the Marine Corps had exhausted

substantial resources trying to pick Ceaser up at the airport and would not commit

to doing anything else. Id. ¶ 19.

A few days passed and Ceaser’s family again called Smith to ask why

Ceaser had not yet been picked up. Id. ¶ 20. They told him that they had found

grenade parts that they believed belonged to Ceaser. Id. They also shared that

Ceaser was acting aggressively, was easily agitated, and was posting on social

media that he had purchased guns. Id. Despite acknowledging that these were

concerning developments and saying that he “would see what he could do,” Smith

would not commit to doing anything in particular. Id.

Then, about three weeks after he arrived in North Carolina, Ceaser’s family

once again took him to the airport so he could fly back to Georgia. Id. ¶ 21. Ceaser

boarded the flight and his family then called Smith. Id. ¶¶ 21, 22. They told him

that Ceaser was on a plane to Atlanta and would need to be picked up at the airport.

Id. ¶ 22. Smith eventually responded that “he could not have Ceaser detained at the

airport, and Ceaser would need to” make his own way back to Fort Benning. Id.

But rather than make his way to Fort Benning, Ceaser made his way back

to North Carolina the next day. Id. ¶ 23. Sallie once again contacted Smith and

expressed her frustration with the situation and her concern that something bad

would happen. Id.

In response, Smith told Sallie to take Ceaser to Camp Lejeune. Id. As Sallie

was trying to persuade Ceaser to pack up and go with her to Camp Lejeune, he

fatally shot her. Id. ¶ 26.

(M&R (DE 27) at 2-4).

COURT’S DISCUSSION

A. Standard of Review

The district court reviews de novo those portions of a magistrate judge’s M&R to which

specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review

where a party makes only “general and conclusory objections that do not direct the court to a

specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson,

687 F.2d 44, 47 (4th Cir. 1982).2 Absent a specific and timely filed objection, the court reviews

only for “clear error,” and need not give any explanation for adopting the M&R. Diamond v.

Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d

198, 200 (4th Cir. 1983). Upon careful review of the record, “the court may accept, reject, or

modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28

U.S.C. § 636(b)(1).

A motion to dismiss under Rule 12(b)(1) challenges the court’s subject matter jurisdiction.

Such motion may either 1) assert the complaint fails to state facts upon which subject matter

jurisdiction may be based, or 2) attack the existence of subject matter jurisdiction in fact, apart

from the complaint. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Where a defendant

raises a “facial challenge[] to [subject matter jurisdiction] that do[es] not dispute the jurisdictional

facts alleged in the complaint,” the court accepts “the facts of the complaint as true as [the court]

would in context of a Rule 12(b)(6) challenge.” Kenny v. Wilson, 885 F.3d 280, 287 (4th Cir.

2018).

2 Throughout this order, internal citations and quotation marks are omitted from citations unless otherwise

specified.

Under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Factual allegations must be

enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In

evaluating whether a claim is stated, “[the] court accepts all well-pled facts as true and construes

these facts in the light most favorable to the plaintiff,” but does not consider “legal conclusions,

elements of a cause of action, . . . bare assertions devoid of further factual enhancement[,] . . .

unwarranted inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v.

Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).

B. Analysis

In the instant motion to dismiss, the government asserts that plaintiff’s claim falls within

the FTCA’s exception for “claim[s] arising out of assault[ or] battery.” 28 U.S.C. § 2680(h).

Plaintiff argues that, pursuant to Sheridan v. United States, 487 U.S. 392 (1988), such exception

does not apply because his claim of negligence by the United States furnishes a basis for

governmental liability that is entirely independent of Ceaser’s federal employment status. The

magistrate judge cogently and thoroughly determined in the M&R that plaintiff’s argument fails as a

matter of law, even accepting the facts alleged as true. Upon de novo review, the court finds the

determination by the magistrate judge to be correct.

The court separately addresses here plaintiff’s specific objections: 1) that the M&R’s

conclusion is incorrect because Smith’s instructions to decedent establish a duty to her independent of

Ceaser’s employment status; 2) that the M&R relied on the type of but-for rationale disapproved by

the court in Durden v. United States, 736 F.3d 308 (4th Cir. 2013); and 3) that LaFrancis v. United

States, 66. F. Supp. 2d 335 (D. Conn. 1999), which the M&R cites, is distinguishable. None merit

concluding the magistrate judge’s recommendation to dismiss plaintiff’s complaint is erroneous.

The FTCA allows complainants to hold the United States liable for certain tort claims “in

the same manner and to the same extent as a private individual,” 28 U.S.C. § 2674, including “for

. . . personal injury or death caused by the negligent or wrongful act or omission of any employee

of the [United States] while acting within the scope of his [or her] office or employment.” Id.

§ 1346(b)(1). This is a limited waiver of the United States’ general “immun[ity] from suit.”

Clendening v. United States, 19 F.4th 421, 426 (4th Cir. 2021); see also F.D.I.C. v. Meyer, 510

U.S. 471, 475 (1994) (explaining that “[s]overeign immunity is jurisdictional in nature” and thus

“the terms of the United States’ consent to be sued in any court define that court’s jurisdiction to

entertain the suit”). “[T]hat waiver is curtailed by several exceptions,” which “plaintiff bears the

burden of showing” do not “apply to [his or her] particular claim.” Clendening, 19 F.4th at 426.

One such exception is for “[a]ny claim arising out of assault, battery,” or a number of other

enumerated torts, 28 U.S.C. § 2680(h), sometimes referred to as the “intentional-tort exception.”

Durden, 736 F.3d at 308. However, “in at least some situations the fact that an injury was directly

caused by an assault or battery will not preclude liability against the Government for negligently

allowing the assault to occur.” Sheridan, 487 U.S. at 398. One such situation, identified in

Sheridan, is where the “negligence of other Government employees who allowed a foreseeable

assault and battery to occur . . . furnish[es] a basis for Government liability that is entirely

independent of [the tortfeasor’s] employment status.” Id. at 401; see also id. (“[I]n a case in which

the employment status of the assailant has nothing to do with the basis for imposing liability on

the Government, it would seem perverse to exonerate the Government because of the happenstance

that [the assailant] was on a federal payroll.”).

The United States Court of Appeals for the Fourth Circuit has construed Sheridan as

standing for the principle that “the government’s ability (i.e., legal duty) to control a tortfeasor

must be independent of the tortfeasor’s status as a government employee,” such as in Sheridan,

where the “tortfeasor’s status as a government employee was wholly irrelevant to imposing

liability on the government for the [other government employees’] negligence.” Durden, 736 F.3d

at 308-09 (emphasis added). The facts of Sheridan, itself, clarify this principle. In that case, after

encountering a severely inebriated servicemember in a naval hospital, a group of Navy corpsmen

attempted to take him to the emergency room of that hospital. Sheridan, 487 U.S. at 394-95. He

resisted and, in the process, revealed the barrel of a rifle, causing the corpsmen to flee, although

they failed to inform any authorities. Id. at 395. The drunk serviceman proceeded to fire shots at

plaintiffs’ car, injuring them and their property. Id.

The Supreme Court explained that plaintiffs’ suit was not barred by § 2680(h), despite

plaintiffs’ injuries being caused by the drunk serviceman’s battery, because their claim was for

negligence based not on the serviceman’s employment status but the corpsmen and the

government’s negligence in preventing “a foreseeable assault and battery.” Id. at 401. The Court

clarified that, independent of any duty related to the shooter’s employment, the corpsmen and the

government had undertaken an independent duty of care by “[b]y voluntarily adopting regulations

that prohibit the possession of firearms on the naval base and that require all personnel to report

the presence of any such firearm” as well as “by further voluntarily undertaking to provide care to

a person who was visibly drunk and visibly armed,” through which specifically “the Government

assumed responsibility to perform its good Samaritan task in a careful manner.” Id. “Because

neither [the shooter’s] employment status nor his state of mind ha[d] any bearing on the basis for

[plaintiffs’] claim for money damages, the intentional tort exception to the FTCA [was] not

applicable.” Id. at 403.

Plaintiff contends the same is true of his wrongful death claim brought on behalf of

decedent based on the negligence of the government, specifically Smith, in failing to protect

decedent from harm. Plaintiff analogizes Smith’s direction to decedent to drive Ceaser to Camp

Lejeune to the naval corpsmen’s voluntarily undertaking to provide care for the plainly dangerous,

drunken serviceman in Sheridan. The analogy is unavailing.

Plaintiff’s claim of negligence by Smith related to Ceaser’s assault and battery is not

“entirely independent” of Ceaser’s federal employment, Sheridan, 487 U.S. at 401, nor can it be

said that Ceaser’s “status as a government employee [is] wholly irrelevant to imposing liability”

possibly on the government for Smith’s alleged negligence. Durden, 736 F.3d at 309. On the facts

pleaded, “[t]he government’s ability . . . to control [Ceaser]” was not “independent of [his] status

as a government employee,” id.; rather, it is this exact ability to control Ceaser that decedent relied

upon in requesting help from Smith as spurred his direction to her to drive Ceaser to Camp Lejeune,

into the custody of the Marine Corps, Ceaser’s employer. (See Compl. ¶¶ 17, 19-20, 23).

Plaintiff’s argument that Smith’s direction to decedent to drive Ceaser to Camp Lejeune

creates a duty entirely independent of Ceaser’s employment by the Marine Corps ignores the

alleged events preceding that direction and the ultimate goal of Smith’s direction and decedent’s

attempts: delivering Ceaser back into the control of his employer, the Marine Corps. Unlike

Sheridan, there would be no basis for “liability” to “attach if [Ceaser] had been an unemployed

civilian” in the home of decedent. Sheridan, 487 U.S. at 401; see also Durden, 736 F.3d at 305

(“The FTCA is clear . . . that the government is liable only 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. Thus, setting aside the Army’s ability to control [the tortfeasor]

that attached solely pursuant to his employment status as a soldier, the Army must have had some

other legal authority to control him.”). Plaintiff points to no authority that Smith “under[took] to

render services to [decedent]” by giving her that direction, in the way the Army was alleged to

have in Durden “by undertaking the task of monitoring and controlling [a tortfeasor] following his

release from civilian confinement.” 736 F.3d at 305. Finally, plaintiff fails to point to alleged

facts comparable to the other factors weighed by the Sheridan Court in concluding “the

Government [had] assumed responsibility,” such as adopting related regulations and affirmative

reporting rules. 487 U.S. at 401.

Further, this conclusion does not require reliance on any rationale disapproved of in

Durden. In its own words, the Fourth Circuit held, among other things, that “knowledge of the

tortfeasor’s propensity for violence or criminal history gained as a result of [the tortfeasor’s status

as a government employee] does not, per se, nullify an FTCA claim.” Durden, 736 F.3d at 309.

Durden does not jettison the use wholesale of causal reasoning in analyzing whether a plaintiff’s

FTCA claim is barred by § 2680(h). Moreover, the court here does not grant the motion to dismiss

plaintiff’s FTCA claim because Smith’s knowledge of Ceaser’s propensity for violence was gained

as a result of Ceaser’s status as a member of the Marine Corps, but rather because plaintiff does

not plausibly allege that Ceaser’s employment status “ha[d] nothing to do with the [alleged] basis

for imposing liability on the Government.” Sheridan, 487 U.S. at 402.

To the extent plaintiff faults the M&R’s reliance on LaFrancis v. United States, 66. F. Supp.

2d 335 (D. Conn. 1999), such objection is of no moment where analysis independent from that

authority leads to the same result. Further, plaintiff’s emphasis on Lumsden v. United States, 555

F. Supp. 2d 580 (E.D.N.C. 2008), as the most helpful exemplary analysis is misplaced. In that

case, the government, through its agents, “delivered [the tortfeasor’s] car keys and the ether,”

through which he had previously become intoxicated, to the tortfeasor. Id. at 584-85. Liability

for this type of conduct was based not on the tortfeasor’s employment status but rather the

government negligently equipping the tortfeasor with the means to cause harm (which he did by

driving intoxicated into the oncoming lane in which the Lumsden plaintiffs were driving).

In sum, plaintiffs objections to the M&R do not provide a basis for rejecting the magistrate

judge’s recommendation to dismiss plaintiff's FTCA claim for lack of subject matter jurisdiction.

CONCLUSION

Based on the foregoing, defendant’s motion (DE 18) is GRANTED. This action is

DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction, pursuant to Rule

12(b)(1). The clerk is DIRECTED to close this case.

SO ORDERED, this the 30th day of August, 2022.

LOUISE W. FLANAGAN

United States District Judge

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