*fn3,The opinion of the court was delivered by: Reggie B. Walton United States District Judge,PAMELA TAYLOR, PLAINTIFF, v. ERIC CLARK,*FN1 AND JOHN DOE, DEFENDANTS." />

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Pamela Taylor v. Eric Clark

November 4, 2011 *fn3


The opinion of the court was delivered by: Reggie B. Walton United States District Judge


The plaintiff, Pamela Taylor, brings this civil action against defendant Eric Clark in his official capacity as a Deputy United States Marshal based on his alleged tortious acts. See Complaint ("Compl.") ¶¶ 18-32. Currently before the Court is defendant Clark's motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), asserting that that this Court lacks subject matter jurisdiction under the Federal Tort Claims Act ("FTCA"), 28 U.S.C §§ 1346(b), 2674 (2006). Upon careful consideration of the plaintiff's complaint, the defendant's motion, and all memoranda of law related to that motion,*fn2 the Court concludes for the following reasons that the defendant's motion must be granted.


This action arises out of an incident that occurred on March 17, 2010. Compl. ¶ 9. On that date, the plaintiff was ordered by a Judge of the Superior Court of the District of Columbia ("Superior Court") to be detained at the District of Columbia Central Detention Facility ("D.C. Jail") pending her trial on a charge of simple assault. Def.'s Reply at 4. Before being transported to the D.C. Jail, the plaintiff was temporarily detained in a holding cell at the Superior Court in the custody of the United States Marshals Service ("Marshals Service"). Pl.'s Opp'n at 2; Def.'s Mem. at 2. While in the holding cell, the plaintiff began conversing with other detainees. Compl. ¶¶ 11-12. Defendant Clark allegedly told her to stop talking, to which the plaintiff responded: "Alright you got it." Id. ¶ 12. The plaintiff alleges that Clark then "grabbed [her] . . . and slammed her face to the ground." Id. ¶ 13. As a result of Clark's alleged actions, the plaintiff contends that she suffered a fractured nose, two broken teeth, facial lacerations, black eyes, a cervical spine strain, a dorsal spine strain, a lumbosacral strain, and a concussion. Id.

The plaintiff thereafter instituted this action in the Superior Court on March 16, 2011, asserting claims against Clark and an unidentified John Doe defendant-both employees of the Marshals Service-for assault, battery, intentional infliction of emotional distress and negligent infliction of emotional distress, see id. ¶¶ 18-32, and requesting compensatory and punitive damages, id. at 6. On that same date, the plaintiff filed an administrative FTCA claim with the Marshals Service concerning the same incident. Def.'s Reply at 2. The United States Attorney's Office for the District of Columbia, on behalf of the United States, subsequently filed a certification under the Westfall Act, 28 U.S.C § 2679(d)(1), to substitute itself as the defendant. Defendant Clark then removed this case to this Court on June 9, 2011, and, on June 16, 2011, moved to dismiss pursuant to Rule 12(b)(1). In support of his motion, Clark contends that this Court lacks subject matter jurisdiction because (1) the plaintiff's claims are barred by the doctrine of sovereign immunity, and (2) the plaintiff failed to exhaust her administrative remedies. Def.'s Mem. at 3-5.


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) "presents a threshold challenge to the Court's jurisdiction," and thus "the Court is obligated to determine whether it has subject matter jurisdiction in the first instance." Curran v. Holder, 626 F. Supp. 2d 30, 32 (D.D.C. 2009) (internal citation and quotation marks omitted). When reviewing a motion to dismiss pursuant to Rule 12(b)(1), the Court must accept as true all the factual allegations in the complaint. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). Because it is presumed that "a cause lies outside [federal courts'] limited jurisdiction," Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 77 (1994), when a party moves to dismiss under Rule 12(b)(1), "the plaintiff[ ] bear[s] the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction," Biton v. Palestinian Interim Self-Gov't Auth., 310 F. Supp. 2d 172, 176 (D.D.C. 2004).


A. Substitution of the United States as the Defendant

The Federal Employees Liability Reform and Tort Compensation Act of 1988, also known as the Westfall Act, "'accords federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties.'" Wuterich v. Murtha, 562 F.3d 375, 380 (D.C. Cir. 2009) (quoting Osborn v. Haley, 549 U.S. 225, 229 (2007)). Under that Act, "when a federal employee is named in a tort suit, the Attorney General or his designee may certify that the employee was 'acting within the scope of his office or employment at the time of the incident out of which the claim arose.'" Id. (quoting 28 U.S.C. § 2679(d)(1)). "Upon the Attorney General's certification, the tort suit automatically converts to an FTCA 'action against the United States' in federal court; the Government becomes the sole party defendant; and the FTCA's requirements, exceptions, and defenses apply to the suit." Harbury v. Hayden, 522 F.3d 413, 416 (D.C. Cir. 2008) (quoting 28 U.S.C. § 2679(d)(1)).

Although a Westfall Act certification is conclusive for the purposes of removal, see 28 U.S.C. § 2679(d)(2), such a certification is not necessarily conclusive as to the substitution of the federal government as the defendant. Indeed, "[a] plaintiff may contest the Attorney General's scope-of-employment certification before a district court." Wuterich, 562 F.3d at 381 (citing Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995)). As the Circuit explained in Wuterich:

Once a plaintiff advances this argument, the certification "constitute[s] prima facie evidence that the employee was acting within the scope of his employment." . . . To rebut the certification and obtain discovery, a plaintiff must "alleg[e] sufficient facts that, taken as true, would establish that the defendant['s] actions exceeded the scope of [his] employment." . . . If a plaintiff meets this pleading burden, he may, if necessary, attain "limited discovery" to resolve any factual disputes over jurisdiction.

This court has made it clear that "[n]ot every complaint will warrant further inquiry into the scope-of-employment issue." . . . Consequently, where a plaintiff fails to allege sufficient facts to rebut the certification, the United States must be substituted as the ...

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