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Briscoe v. United States

United States District Court, District of Columbia

July 25, 2017

ALBERT MARCELLUS BRISCOE, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, et al. Defendants.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE.

         This case arises out of unfortunate and undisputed circumstances that for a period of time, a Special Agent of the FBI was fueling his own heroin addiction with evidence seized in federal criminal investigations. A group of individuals convicted of conspiracies he helped investigate, Albert Marcellus Briscoe, Merle Watson, and Donald Duren, have brought an action against defendants United States of America ("United States"), the Federal Bureau of Investigation ("FBI"), the United States Department of Justice ("DOJ"), Andrew McCabe in his official capacity as the Acting Director of the FBI, [1] and former FBI Special Agent Matthew Lowry in both his official capacity with the FBI and in his individual capacity. The complaint includes claims of negligence (Count I), false imprisonment (Count III), and negligent infliction of emotional distress (Count IV) against all defendants, and a claim of negligent supervision (Count II) against all defendants except defendant Lowry.

         Pursuant to Federal Rule of Civil Procedure 12(b)(1), the United States has moved to dismiss plaintiffs' complaint against the agencies and the individual defendants sued in their official capacity for lack of subject matter jurisdiction, stating that the United States is the only proper defendant in a case brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-80. Def United States & Agency Defs.' Mot. to Dismiss [Dkt. # 16] ("United States Mot."); Mem. in Supp. of United States Mot. [Dkt. # 16] ("United States Mem.") at 4. The United States has also moved to dismiss Count II, negligent supervision, for lack of subject matter jurisdiction on the grounds that the discretionary function exception to the FTCA applies. United States Mem. at 4. In addition, the United States has moved to dismiss the remaining claims against it (Counts I, III, and IV) pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that plaintiffs have failed to plead plausible claims of negligence, false imprisonment, and negligent infliction of emotional distress. Id. at 4-5.

         Defendant Lowry has moved to dismiss the three claims against him in his official capacity pursuant to Rule 12(b)(1) since the only proper defendant in an FTCA action is the United States. Def. Lowry Mot. to Dismiss [Dkt. #25] ("Lowry Mot"); Mem. in Supp. of Lowry Mot. [Dkt. # 25] ("Lowry Mem") at 4. Further, he has moved to dismiss the claims against him in his individual capacity pursuant to Rule 12(b)(6) on the grounds that plaintiffs have failed to plead plausible claims of negligence, false imprisonment, and negligent infliction of emotional distress. Lowry Mem. at 4, 25.

         The Court finds that it lacks subject matter jurisdiction over the claims against the FBI, DOJ, McCabe in his official capacity, and Lowry in his official capacity, and that plaintiffs have failed to state a claim upon which relief can be granted for the remaining three alleged tort claims against the United States (Counts I, III, and IV). Because plaintiffs are entitled to jurisdictional discovery to determine whether the discretionary function exception under the FTCA applies, the Court cannot yet determine if it has subject matter jurisdiction over plaintiffs' negligent supervision claim against the United States (Count II). So, it would be premature for the Court to rule on the merits of that claim. It would also be premature for the Court to rule on plaintiffs' claims against Lowry in his individual capacity since the Court would only have supplemental jurisdiction over those claims if plaintiffs' claim for negligent supervision against the United States survives.

         Accordingly, the Court will grant the motions to dismiss as to all counts against the FBI, DOJ, McCabe in his official capacity, and Lowry in his official capacity because the United States is the only proper defendant in a suit under the FTC A, and the Court will grant the government's motion to dismiss Counts I, III, and IV against the United States for failure to state a claim under Rule 12(b)(6). The Court will deny the government's motion to dismiss Count II without prejudice and will grant plaintiffs' request for limited jurisdictional discovery concerning the existence of any relevant internal FBI policies. The Court finds that it lacks federal subject-matter jurisdiction over plaintiffs' claims for negligence, false imprisonment, and negligent infliction of emotional distress against Lowry in his individual capacity, but it will defer making a determination about whether it should exercise supplemental jurisdiction over the state tort claims until it has ruled on the challenges to the remaining claim (Count II) against the United States.

         BACKGROUND

         In December 2012, plaintiffs were indicted and arrested for their alleged roles in conspiracies to distribute heroin. Am. Compl. ¶¶ 18-19, 43-44, 80-82. Each plaintiff was detained pending trial, id. ¶¶ 20, 45, 81, and each pled guilty to conspiracy to distribute, and to possess with intent to distribute, heroin. Id. ¶ 23 (Briscoe pled guilty on June 12, 2013); id. ¶ 48 (Watson pled guilty on May 31, 2013); id. ¶ 85 (Duren pled guilty on September 10, 2013). Plaintiff Briscoe was sentenced to twenty-seven months in prison, plaintiff Watson was sentenced to sixty months in prison, and plaintiff Duren was sentenced to forty-one months in prison. Id.¶¶26, 51, 88. As part of his guilty plea, each plaintiff affirmed that he had participated in a drug distribution conspiracy and that he was "pleading guilty because [he was] in fact guilty." Ex. 1 to Lowry Mot. [Dkt. # 25-2] ("Briscoe Plea") at 9; Ex. 2 to Lowry Mot. [Dkt. # 25-3] ("Duren Plea") at 9; Ex. 3 to Lowry Mot. [Dkt. # 25-4] ("Watson Plea") at 9.[2]

         In October 2014, the government informed the district court "that one of the special agents who assisted in the investigation of [plaintiffs' cases] may have engaged in misconduct by tampering with evidence, including narcotics evidence, seized during investigations in which that agent participated." See Notice of Filing [No. 1:12-cr-270, Dkt. # 190] ("Duren Notice"); Notice of Filing [No. 1:12-cr-271, Dkt. # 239] ("Watson Notice"); Notice of Filing [No. 1:12-cr-271, Dkt. # 238] ("Briscoe Notice").[3] Specifically, Lowry took heroin - either directly from purchases made in undercover operations or from seized evidence stored in the Washington Field Office's Evidence Control Center ("ECC") - and appropriated it for his own use. Am. Compl. ¶ 105-20. He replaced the heroin with a cutting substance and falsified chain of custody reports when returning the remaining seized heroin to the ECC. Id. Lowry kept the heroin in his possession for weeks to months at a time and on at least one occasion, ingested all of the heroin purchased in an undercover narcotics operation instead of returning it to the ECC. Id. ¶¶ 114, 120. As a result of this wrongdoing, Lowry was charged with, and pled guilty to, multiple counts of obstruction of justice, falsification of records, conversion of property, and possession of heroin. Id. ¶¶ 124-25. On July 9, 2015, Lowry was sentenced to a thirty-six month term of imprisonment to be served concurrently with a twelve-month term, followed by a twenty-four month period of supervised release. Id. ¶ 126.

         On November 5, 2014, the government moved to dismiss the indictments against Watson, Briscoe, and Duren, and consented to their oral motions to withdraw their guilty pleas and vacate their sentences. Government's Notice of Consent to Defs.' Oral Mots. & Mot. to Dismiss Indictment [No. 1:12-cr-270, Dkt. # 187] ("Gov't Notice"); Gov't Notice [No. 1:12-cr-271, Dkt. # 233]. The district court vacated plaintiffs' convictions on November 6, 2014. Order [No. 1:12-cr-270, Dkt. # 193]; Order [No. 1:12-cr-271, Dkt. # 243].

         In April 2015, each plaintiff filed an administrative claim with the FBI. Am. Compl. ¶ 3. The FBI denied the claims in October 2015. Id. Plaintiffs initiated this action on April 29, 2016, Compl. [Dkt. #1], and filed an amended complaint on June 8, 2016. Am. Compl. Plaintiffs allege that the evidence against them was "fraudulent, " see, e.g., id. ¶ 22, that they were "wrongfully incarcerated, " id. ¶¶ 34, 59, 96, and that as a result of their incarceration, they experienced a number of physical, emotional, and economic consequences, including "significant[] deterioration]" in their physical and mental health, an inability to care for ailing family members, and lost employment. Id. ¶¶ 34-42, 59-79, 96-102.

         On August 8, 2016, the United States moved to dismiss the complaint against the agency defendants and individuals in their official capacities pursuant to Rule 12(b)(1) and Rule 12(b)(6). United States Mot. Plaintiffs opposed the motion on October 31, 2016, Pis.' Opp. to United States Mot. [Dkt. # 18] ("Pis.' Opp. to United States Mot"), and the United States filed its reply on December 1, 2016. Reply Mem. in Supp. of United States Mot. [Dkt. #20] ("United States Reply"). On February 9, 2017, Lowry moved separately to dismiss the complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6). Lowiy Mot. Plaintiffs opposed the motion on February 23, 2017, Pis.' Opp. to Lowry Mot. [Dkt. # 26] ("Pis.' Opp. to Lowry Mot."), and Lowry filed his reply on March 2, 2017. Def Lowry Reply to PL's Resp. to Mot. to Dismiss [Dkt. # 27] ("Lowry Reply").

         STANDARD OF REVIEW

         In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must "treat the complaint's factual allegations as true . . . and must grant plaintiff 'the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal citations omitted), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979); see also Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiffs legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

         I. Subject Matter Jurisdiction

         Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) ("As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction."). "[B]ecause subject-matter jurisdiction is 'an Art[icle] III as well as a statutory requirement ... no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).

         When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the Court "is not limited to the allegations of the complaint." Hohri v. United States, 782 F .2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). Rather, "a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

         II. Failure to State a Claim

         "To survive a [Rule 12(b)(6)] motion to dismiss, 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, 556U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550U.S. 544, 570 (2007). InIqbal, the Supreme Court reiterated the two principles underlying its decision in Twombly: "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions, " and "[s]econd, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 678-79.

         A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, citing Twombly, 550 U.S. at 556. "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." Id., quoting Twombly, 550 U.S. at 556. A pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action, " id, quoting Twombly, 550 U.S. at 555, and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id., citing Twombly, 550 U.S. at 555.

         When considering a motion to dismiss under Rule 12(b)(6), the Court is bound to construe a complaint liberally in the plaintiffs favor, and it should grant the plaintiff "the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff s legal conclusions. See id.; see also Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C. 2002), citing EEOC v. St. Francis Xavier Parochial Sch., 117F.3d621, 624-25 (D.C. Cir. 1997).

         ANALYSIS

         I. The Court lacks subject matter jurisdiction over the claims agaiust the agencies and individual agency defendants in their official capacities.[4]

         Generally, "the doctrine of sovereign immunity shields the federal government [and its agencies] from suit." Tri-State Hosp. Supply Corp. v. United States341 F.3d 571, 575 (D.C. Cir. 2003), citing FDIC v. Meyer, 510 U.S. 471, 475 (1994). Under this doctrine, the Court's jurisdiction is limited to those instances in which the government has "unequivocally" waived sovereign immunity. Id., citing Dep't of Army v. Blue Fox, Inc.,525 U.S. 255, 261 (1999). "The FTCA 'grants federal district courts jurisdiction over claims arising from certain torts committed by federal employees in the scope of their employment, and waives the government's sovereign immunity from such claims.'" Jerome Stevens Pharms., 402 F.3d at 1252, quoting Sloan v. ...


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