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Williams v. United States

United States District Court, D. Utah, Northern Division

October 31, 2018

SCOTT WILLIAMS, Plaintiff,
v.
UNITED STATES of AMERICA and KENNETH BRUNER, Defendants.

          JOHN W. HUBER, United States Attorney, JEFFREY E. NELSON, Assistant United States Attorney, Attorneys for the Defendants.

          MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT

          DEE BENSON UNITED STATES DISTRICT COURT JUDGE.

         Before the Court is the defendants' Motion to Dismiss Plaintiff's Second Amended Complaint (Dkt. 19). The motion has been fully briefed, and a hearing was held before the Court on October 10, 2018. At the hearing, Scott Williams (“Plaintiff”) was represented by Andrew Fackrell, and the defendants were represented by Jeffrey E. Nelson. Based on the parties' written and oral arguments, the pleadings, and the relevant law, the Court enters the following Memorandum Decision and Order.

         In his Second Amended Complaint, Plaintiff alleges that defendant Kenneth Bruner violated Plaintiff's Fifth Amendment due-process rights when he published defamatory statements about Plaintiff. Pursuant to Fed.R.Civ.P. 12(b)(6), the defendants have moved for dismissal of Plaintiff's Second Amended Complaint on the grounds that (1) the complaint fails to state a claim on which relief can be granted under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), and (2) defendant Kenneth Bruner is entitled to qualified immunity from Plaintiff's Bivens claim. See Mot. To Dismiss Pl.'s Sec. Am. Compl. (Dkt. 27). For the reasons set forth below, the defendants' Motion to Dismiss is GRANTED.

         Standard of Review

         To survive a motion under Rule 12(b)(6), a complaint must contain factual allegations sufficient to state a claim that is plausible on its face. Anderson v. Suiters, 499 F.3d 1228, 1232 (10th Cir. 2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows 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) (citation omitted). “[T]he mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). The plaintiff bears the burden of demonstrating that the complaint meets this threshold. Olson v. Carmack, 641 Fed.Appx. 822, 826-27 (10th Cir. 2016) (unpublished) (citing Twombly, 550 U.S. at 556).

         The court accepts the allegations of the complaint as true and draws all reasonable inferences in the plaintiff's favor. Wasatch Equality v. Alta Ski Lifts Co., 820 F.3d 381, 385 (10th Cir. 2016). However, the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).

         Discussion

         I. Challenge to scope-of-employment certification.

         Plaintiff sued Mr. Bruner, an employee of the United States Air Force, in the Second Judicial District Court of Davis County, State of Utah. See Pl.'s Compl. (Dkt. 2-2). Plaintiff alleged that Mr. Bruner published false statements that defamed Plaintiff and damaged his reputation. Id. ¶¶ 19-29. The United States removed that case to this Court based on the certification of the United States Attorney that Mr. Bruner was acting within the scope of his federal employment at the time of the events on which Plaintiff's claim was based. See Notice of Removal (Dkt. 2). Under 28 U.S.C. § 2679(d)(2), the case then proceeded as an action against the United States under the Federal Tort Claims Act (FTCA).

         Defamation claims fall within an exception to the FTCA's waiver of the United States' sovereign immunity. See 28 U.S.C. § 2680(h). Thus, the United States moved to dismiss the defamation cause of action in Plaintiff's Amended Complaint on the ground that the Court lacked subject-matter jurisdiction over Plaintiff's defamation cause of action because it is barred by the FTCA's exclusion of defamation claims. See Mot. to Dismiss Pl.'s Am. Compl. (Dkt. 12). The Court issued a Memorandum Decision and Order dated May 2, 2018 (Dkt. 22), in which the Court dismissed Plaintiff's Amended Complaint and granted Plaintiff leave to amend his complaint to assert a Bivens claim against Mr. Bruner. Plaintiff filed a Second Amended Complaint (Dkt. 19), which is the subject of the Motion to Dismiss presently before the Court.

         At the hearing on October 10, 2018, Plaintiff attempted to challenge the scope-of-employment certification by arguing that Mr. Bruner was not acting within the scope of his federal employment when he made the allegedly defamatory statements about Plaintiff. If Plaintiff could prove that Mr. Bruner was acting outside the scope of his employment, Plaintiff would not be required to pursue his claim against the United States under the FTCA and thus would not be subject to the FTCA's exclusion of defamation claims.

         A plaintiff who is dissatisfied with a scope-of-employment certification may challenge the certification. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995). However, Plaintiff never raised a certification challenge when the FTCA claim was before this Court, and the FTCA claim was dismissed by the Memorandum Decision and Order dated May 2, 2018 (Dkt. 22). The FTCA claim is no longer before the Court, and thus the time to challenge the certification has passed.

         II. Plaintiff's Second Amended Complaint fails to state a Bivens claim on which relief can be granted because Mr. Bruner's alleged defamation of Plaintiff does not ...


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