Opinion
Civil Action 20-cv-02681-WJM-NYW
03-10-2021
RODNEY DEWALT, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Nina Y. Wang United States Magistrate Judge
This matter comes before this court for recommendation on Defendant United States of America's (“Defendant” or “United States”) Motion to Dismiss for Lack of Subject-Matter Jurisdiction and Failure to State a Claim (the “Motion to Dismiss” or “Motion”), filed November 19, 2020. [#21]. The undersigned considers the Motion pursuant to 28 U.S.C. § 636(b) and the Memorandum dated November 20, 2020. [#22]. This court concludes that oral argument will not materially assist in the resolution of this matter. Accordingly, having reviewed the Motion and associated briefing, the applicable caselaw, and being fully advised in its premise, this court respectfully RECOMMENDS that the Motion to Dismiss be GRANTED.
BACKGROUND
This court draws the following facts from the Second Amended Complaint [#10] and presumes they are true for purposes of the instant Motion. In addition, this court takes judicial notice of certain facts and filings in related cases involving Plaintiff Rodney DeWalt (“Plaintiff” or “Mr. DeWalt”) to the extent they have a direct connection to the claims asserted here. See St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (“Further, it has been held that federal courts, in appropriate circumstances, may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.”).
The instant lawsuit arises out of two unsuccessful civil actions Mr. DeWalt filed pro se against the City of Overland Park, Kansas (the “City”). See [#10 at 4-5]; DeWalt v. City of Overland Park, Kansas (“DeWalt I”), Civil Action No. 18-cv-2690-DDC-TJJ (D. Kan.); DeWalt v. City of Overland Park, Kansas (“DeWalt II”), Civil Action No. 20-cv-2079-KHV-JPO (D. Kan.). In 2018, Mr. DeWalt filed the first civil action against the City in the United States District Court for the District of Kansas (“District of Kansas”), alleging various constitutional and state law claims for alleged racial discrimination based on Mr. DeWalt's ownership of a nightclub geared toward African-American patrons in the City. See DeWalt I, Civil Action No. 18-cv-02690-DDC-TJJ, (ECF No. 1). On July 9, 2019, the Honorable Daniel Crabtree concluded that Mr. DeWalt failed to plead any cognizable claims against the City but provided Mr. DeWalt ten (10) days to seek leave to amend. See DeWalt I, Civil Action No. 18-cv-02690-DDC-TJJ, (ECF No. 38); DeWalt I, 2019 WL 2994544, at **7-8 (D. Kan. July 9, 2019); see also [#10 at 4].
When citing to docket entries in this civil action, the undersigned uses the convention [#____] to refer to entries and page numbers assigned by this District's Electronic Court Filing (“ECF”) system. For all other docket entries, this court uses the convention (ECF No.____).
Mr. DeWalt sought a 30-day extension of time to file an Amended Complaint, which the City opposed, and which the Honorable Teresa J. James denied, though Magistrate Judge James provided Mr. DeWalt an additional four days to file his Amended Complaint. DeWalt I, Civil Action No. 18-cv-02690-DDC-TJJ, (ECF Nos. 38, 41, 42). Mr. DeWalt, however, did not file his Amended Complaint against the City until July 25, 2019, two days after the extended deadline set by Magistrate Judge James. Id. at (ECF No. 42, 47). Because Mr. DeWalt failed to comply with the court's directives regarding an amended complaint, see [#10 at 4], Magistrate Judge James granted the City's motion to strike Mr. DeWalt's untimely amended pleading and later denied Mr. DeWalt's motion to reconsider that decision, see [#10 at 4-5]; DeWalt I, Civil Action No. 18-cv-02690-DDC-TJJ, (ECF Nos. 52, 62); DeWalt I, 2019 WL 10984252, at *1. Judge Crabtree dismissed DeWalt I on August 5, 2019. DeWalt I, Civil Action No. 18-cv-02690-DDC-TJJ, (ECF No. 53). The United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) affirmed the dismissal of DeWalt I, finding, inter alia, that Mr. DeWalt waived various appeals arising from Magistrate Judge James' decisions. See DeWalt v. City of Overland Park, Kansas, 794 Fed.Appx. 804, 805 (10th Cir. 2020).
Mr. DeWalt filed the second civil lawsuit against the City in Kansas state court, which the City removed to the District of Kansas on or about February 25, 2020. DeWalt II, Civil Action No. 20-cv-02079-KHV-JPO, (ECF No. 1). In DeWalt II, Mr. DeWalt asserted state law claims against the City for negligence, breach of contract, fraud, intentional infliction of emotional distress, and intentional interference with prospective economic advantage given the issues Mr. DeWalt experienced with his nightclub. Id. (ECF No. 1-2). On April 17, 2020, the Honorable Kathryn H. Vratil granted the City's Motion to Dismiss, concluding (1) Mr. DeWalt failed to plead a plausible breach of contract claim, and (2) the court lacked subject matter jurisdiction to consider Mr. DeWalt's tort-based claims because he failed to file a timely notice of claim under Kansas law. Id. (ECF No. 7); DeWalt II, Civil Action No. 20-cv-02079-KHV-JPO, 2020 WL 1904023, at **3-4 (D. Kan. April 17, 2020). Judge Vratil further denied Mr. DeWalt leave to amend and entered Final Judgment in favor of the City on April 17, 2020. DeWalt II, Civil Action No. 20-cv-02079-KHV-JPO, (ECF Nos. 7, 8).
Mr. DeWalt initiated this civil action by filing his pro se Complaint on September 2, 2020. [#1]. Pursuant to the operative Second Amended Complaint, Mr. DeWalt asserts three claims against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b). [#10]. First, Mr. DeWalt asserts an abuse of process claim (“Claim 1”), alleging Magistrate Judge James abused the legal process in DeWalt I by denying Mr. DeWalt's requested extension of time to file an amended pleading, striking Mr. DeWalt's untimely amended pleading, denying Mr. DeWalt's motion to reconsider the striking of his amended pleading, and concluding that Mr. DeWalt could not assert cognizable claims against the City through an amended pleading despite his allegations of racial discrimination. [Id. at 4-5]. Second, Mr. DeWalt asserts an intentional infliction of emotional distress claim (“Claim 2”), alleging Judge Vratil and Magistrate Judge James “intentionally caused plaintiff severe emotional distress by denying plaintiff his civil rights” by dismissing his claims against the City despite alleged discrimination. [Id. at 5-6]. Third, and finally, Mr. DeWalt asserts a negligence claim (“Claim 3”), alleging Judge Vratil and Magistrate Judge James breached their duty of care owed to Mr. DeWalt by dismissing his claims in DeWalt 1 and DeWalt II without providing leave to amend, and both judicial officers failed to disclose their connections with the City as required under certain Canons of the Code of Judicial Conduct. [Id. at 6].
On November 19, 2020, the United States filed its Motion to Dismiss, arguing that the court lacks subject matter jurisdiction over Mr. DeWalt's FTCA claims and, alternatively, Mr. DeWalt fails to plead any plausible entitlements to relief. [#21]. Mr. DeWalt has since responded in opposition to the Motion to Dismiss, [#25], and the United States has since replied, [#26]. Because the Motion to Dismiss is ripe for Recommendation, I consider the Parties' arguments below.
Mr. DeWalt also filed a sur-reply, [#29], but this court struck the filing given that the Federal Rules of Civil Procedure do not contemplate the filing of a sur-reply as a matter of right and Mr. DeWalt did not seek, and was not granted, leave to file a sur-reply. See [#30]. To date, Mr. DeWalt has not sought leave to re-file his sur-reply.
LEGAL STANDARDS
I. Rule 12(b)(1) of the Federal Rules of Civil Procedure
Federal courts are courts of limited jurisdiction and, as such, “are duty bound to examine facts and law in every lawsuit before them to ensure that they possess subject matter jurisdiction.” The Wilderness Soc. v. Kane Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011) (Gorsuch, J., concurring); see also Cellport Sys., Inc. v. Peiker Acustic GMBH & Co. KG, 762 F.3d 1016, 1029 (10th Cir. 2014) (explaining courts have an independent obligation to ensure subject matter jurisdiction exists). Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may bring either a facial or factual attack on subject matter jurisdiction, and a court must dismiss a complaint if it lacks subject matter jurisdiction. See Pueblo of Jemez v. United States, 790 F.3d 1143, 1147 n.4 (10th Cir. 2015). For a facial attack the court takes the allegations in the Complaint as true; for a factual attack the court may not presume the truthfulness of the Complaint's factual allegations and may consider affidavits or other documents to resolve jurisdictional facts. Rural Water Dist. No. 2 v. City of Glenpool, 698 F.3d 1270, 1272 n.1 (10th Cir. 2012) (citing Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995)). The burden of establishing jurisdiction rests with the party asserting jurisdiction. See Kline v. Biles, 861 F.3d 1177, 1180 (10th Cir. 2017).
II. Rule 12(b)(6) of the Federal Rules of Civil Procedure
“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.” Walker v. Mohiuddin, 947 F.3d 1244, 1248-49 (10th Cir. 2020) (internal quotation marks omitted). “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.” Cummings v. Dean, 913 F.3d 1227, 1238 (10th Cir. 2019) (internal quotation marks omitted). In making this determination, the “court accepts as true all well-pleaded factual allegations in [the] complaint and views those allegations in the light most favorable to the plaintiff.” Straub v. BNSF Ry. Co., 909 F.3d 1280, 1287 (10th Cir. 2018).
III. Pro se Litigants
In applying these legal principles, this court is mindful that Mr. DeWalt proceeds pro se and is entitled to a liberal construction of his papers. Smith v. Allbaugh, 921 F.3d 1261, 1268 (10th Cir. 2019). But the court cannot and does not act as an advocate for a pro se party. United States v. Griffith, 928 F.3d 855, 864 n.1 (10th Cir. 2019). Nor does a party's pro se status exempt her from complying with the procedural rules that govern all civil actions filed in this District, namely, the Federal Rules of Civil Procedure and the Local Rules of Practice for the District of Colorado. See Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018); Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008).
ANALYSIS
I. The FTCA
Sovereign immunity shields the United States and its agencies from suit and deprives federal courts of jurisdiction to consider such claims. San Juan Cty., Utah v. United States, 754 F.3d 787, 792 (10th Cir. 2014). This is so unless “Congress unequivocally expresses its intention to waive the government's sovereign immunity in the statutory text.” Governor of Kansas v. Kempthorne, 516 F.3d 833, 841 (10th Cir. 2008) (internal quotation marks omitted). The FTCA is one of those statutes and “provides a limited waiver of sovereign immunity” when the “negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment” would establish liability for a private person under the laws where the conduct occurred. Ball v. United States, 967 F.3d 1072, 1075 (10th Cir. 2020) (citing 28 U.S.C. § 1346(b)). “State substantive law applies to suits brought against the United States under the FTCA, ” which is Kansas law in this matter. Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1117 (10th Cir. 2004).
But the court must narrowly construe the FTCA's waiver of sovereign immunity and must strictly adhere to the instances where the United States has consented to suit without implying any exceptions. Miller v. United States, 463 F.3d 1122, 1123 (10th Cir. 2006). To this end, the FTCA provides several exceptions to its limited waiver of sovereign immunity, see 28 U.S.C. § 2680(a)-(n), including for intentional torts like assault, battery, malicious prosecution, abuse of process, libel, slander, and misrepresentation, among others, Garling v. United States Envtl. Prot. Agency, 849 F.3d 1289, 1295 (10th Cir. 2017) (discussing 28 U.S.C. § 2680(h)). The United States also does not waive its sovereign immunity if it is not analogous to a private person, though it need not be “situated identically to private parties.” Hill, 393 F.3d at 1117 (internal quotations omitted); accord In re FEMA Trailer Formaldehyde Prod. Liab. Litig. (Mississippi Plaintiffs), 668 F.3d 281, 288 (5th Cir. 2012) (“Whether a private person in ‘like circumstances' would be subject to liability is a question of sovereign immunity”). It also provides that “the United States [may] assert any defense based upon judicial or legislative immunity which otherwise would have been available to the employee of the United States whose act or omission gave rise to the claim[.]” 28 U.S.C. § 2674.
Finally, the FTCA requires a plaintiff to exhaust his administrative remedies as a jurisdictional precedent to suit. Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999) (“As a jurisdictional prerequisite, the FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.”). To do so, a plaintiff must provide (1) a written notice of the claim and alleged injury to the appropriate federal agency, with (2) a sum certain damages. Est. of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852 (10th Cir. 2005) (explaining that the “notice requirements established by the FTCA must be strictly construed.”). Because the exhaustion requirement is jurisdictional, it cannot be waived and “bars would-be tort plaintiffs from bringing suit against the government unless the claimant has previously submitted a claim for damages to the offending agency, because Congress wants agencies to have an opportunity to settle disputes before defending against litigation in court.” Lopez v. United States, 823 F.3d 970, 976 (10th Cir. 2016) (internal quotations omitted).
II. The Motion to Dismiss
The United States moves to dismiss Mr. DeWalt's claims for two main reasons. First, it argues that Mr. DeWalt cannot demonstrate that the United States waived its sovereign immunity as to Mr. DeWalt's claims, thereby depriving the court of subject matter jurisdiction. Second, it argues that, assuming the court has subject matter jurisdiction, Mr. DeWalt fails to plead plausible claims for relief. The court first considers its subject matter jurisdiction, because if a federal court determines that it is without subject matter jurisdiction, it cannot proceed to considering any other issue. See Cunningham v. BHP Petroleum Great Britain PLC, 427 F.3d 1238, 1245 (10th Cir. 2005). Because this court concludes that it lacks subject matter jurisdiction to consider Mr. DeWalt's FTCA claims, I focus exclusively on the United States' arguments regarding subject matter jurisdiction and do not consider its arguments regarding the plausibility of Mr. DeWalt's claims.
A. Subject Matter Jurisdiction
The United States argues the court lacks subject matter jurisdiction over Mr. DeWalt's FTCA claims for three reasons. First, it argues 28 U.S.C. § 2680(h) bars Mr. DeWalt's claims because they each assert an abuse of process claim despite Mr. DeWalt's suggestion otherwise. See [#21 at 9-10; #26 at 4-5]. Second, it argues that no private analog (i.e., “like circumstances”) exists for Mr. DeWalt's claims and thus the United States has not waived its sovereign immunity under the FTCA for such claims. See [#21 at 10-11; #26 at 4-5]. Third, and finally, the United States argues Mr. DeWalt did not exhaust his administrative remedies prior to filing suit, and thus the court lacks subject matter jurisdiction. See [#21 at 11-12; #26 at 4-5]. I consider each in turn, though not necessarily in the order presented by the United States.
Although the United States argues that the court lacks subject matter jurisdiction over Mr. DeWalt's FTCA claims because absolute judicial immunity bars such claims, see [#21 at 6-9; #26 at 1-4], this court interprets such an argument as a challenge to the merits of Mr. DeWalt's claims, not the court's subject matter jurisdiction to consider such claims. See Moss v. Kopp, 559 F.3d 1155, 1163 (10th Cir. 2009) (considering judicial and quasi-judicial immunity within the context of a Rule 12(b)(6) motion); see also Charles Alan Wright & Arthur R. Miller, 5B Federal Practice and Procedure § 1350 (3d ed. 2019) (“The defense of qualified or judicial immunity has also been held to be properly raised via Rule 12(b)(6) rather than Rule 12(b)(1), although one can find courts not being too particular about the distinction.”). Thus, I do not consider this argument within the context of the United States' subject matter jurisdiction challenges under Rule 12(b)(1). I note, however, that absolute judicial immunity likely bars Mr. DeWalt's FTCA claims because each claim stems from a judicial officers' official conduct in ruling on legal issues presented to the court in Mr. DeWalt's prior lawsuits. See Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir. 2000) (“Judges are absolutely immune from civil liability for judicial acts, unless committed in the clear absence of all jurisdiction. A judge does not act in the clear absence of all jurisdiction even if the action [s]he took was in error, was done maliciously, or was in excess of h[er] authority. Moreover, [a] judge is absolutely immune from liability for h[er] judicial acts even if h[er] exercise of authority is flawed by the commission of grave procedural errors.” (internal citations and quotations omitted)); accord Smith v. Arguello, 415 Fed.Appx. 57, 60 (10th Cir. 2011) (dismissing the plaintiff's claims against federal judges because “the judges were sued for their legal decisions in previous suits [and] they were entitled to absolute judicial immunity.”).
1.Exhaustion of Administrative Remedies
As discussed, prior to initiating suit, the FTCA requires a plaintiff to first exhaust his administrative remedies by filing a claim with “the appropriate Federal agency” and either receiving a formal denial of the claim by the agency or not receiving a final disposition within six months of filing the claim. Barnes v. United States, 776 F.3d 1134, 1139 (10th Cir. 2015). Sufficient notice of the claim exists when the plaintiff files a written statement adequately describing the claimed injury and requesting a sum certain damages. Est. of Trentadue ex rel. Aguilar, 397 F.3d at 852. “The [notice] requirements are jurisdictional and cannot be waived.” Bradley v. United States ex rel. Veterans Admin., 951 F.2d 268, 270 (10th Cir. 1991).
The United States argues that Mr. DeWalt failed to exhaust his administrative remedies prior to filing suit because he never filed a notice of his claims with the Administrative Office of the United States Courts (the “AO”). See [#21 at 11-12; #21-1 at ¶¶ 3-5; #26 at 5]. The United States relies on the Declaration of Tiffany Lewis (“Ms. Lewis”), a “Paralegal Specialist in the Office of General Counsel with the [AO].” [#21-1 at ¶ 1]. Ms. Lewis attests that the “Director of the [AO] acts as the head of a Federal agency for the purpose of considering all claims under the [FTCA]” and a review of AO records reveals that the AO received no claim or submission by Mr. DeWalt regarding his FTCA claims. [Id. at ¶¶ 3-5].
Mr. DeWalt argues in his Response that he “filed a FTCA complaint to the proper administrative claim office [in] April 2020, ” as well as with “the Officer of the Circuit Executive United States Courts for the Tenth Circuit.” [#25 at 11]. Although these allegations do not appear in Mr. DeWalt's operative Second Amended Complaint, see [#10], it appears that Mr. DeWalt raised similar allegations in his initial Complaint and Amended Complaint: “Plaintiff sent a Federal Tort Claim to the Justice Department [in] April 2020 and filed a complaint with the Judicial Council of the Tenth Circuit, ” with neither agency responding within six months. See [#1 at 3; #6 at 8].
Despite Mr. DeWalt's assertions, there appears no dispute that the AO did not receive any claim or submission from Mr. DeWalt regarding his FTCA claims. [#21-1 at ¶¶ 3-5]. Nor is there anything in the record before this court detailing the sufficiency of the claim Mr. DeWalt allegedly submitted. Compare [#1 at 3; #6 at 8] with Morrison v. Kache, 576 Fed.Appx. 715, 717 (10th Cir. 2014) (explaining that a claim must contain enough information to enable the agency to investigate the alleged injury). And the Tenth Circuit has held that a plaintiff cannot cure this jurisdictional defect by amending his operative pleading, but instead must file a new action once properly exhausting his administrative remedies. Dunlap v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999). On these grounds, dismissal for failure to exhaust may be appropriate. See, e.g., Valdez v. United States, 365 F.Supp.3d 1181, 1187 (D.N.M. 2019) (concluding the plaintiff failed to exhaust her administrative remedies by not filing an appropriate FTCA claim form with the United States Postal Service despite submitting complaints to the USPS Office of the Inspector General hotline); Herlik v. United States, No. CIVA07CV00658WDMKMT, 2008 WL 700173, at *5 (D. Colo. Mar. 12, 2008) (concluding that the plaintiff failed to exhaust his administrative remedies because he did not submit the appropriate FTCA claim form and the appropriate federal agency had no record of any purported FTCA claim).
Nevertheless, the Tenth Circuit has approved the notion that “the FTCA's notice requirements should not be interpreted inflexibly.” Est. of Trentadue ex rel. Aguilar, 397 F.3d at 853. Moreover, submission of a claim to the wrong agency is not always fatal to a plaintiff's FTCA claim because “[w]hen a claim is presented to any other Federal agency, that agency shall transfer it forthwith to the appropriate agency, if the proper agency can be identified from the claim, and advise the claimant of the transfer.” 28 C.F.R. § 14.2(b)(1); cf. 55 Motor Ave. Co. v. Liberty Indus. Finishing Corp., 885 F.Supp. 410, 418 (E.D.N.Y. 1994) (rejecting the United States' argument that the plaintiffs failed to exhaust their administrative remedies by sending their notice of a claim to the wrong agency because § 14.2(b)(1) provides for transfer to the appropriate agency). Accordingly, for the sake of completeness given Mr. DeWalt's pro se status and the purported ambiguity regarding exhaustion, this court considers the United States' additional subject matter jurisdiction arguments.
2.Intentional Torts Under 28 U.S.C. § 2680(h)
The FTCA provides exceptions to the limited waiver of sovereign immunity found in 28 U.S.C. § 1346(b). See 28 U.S.C. § 2680(a)-(n). Relevant here, § 2680(h) does not waive sovereign immunity for intentional torts, including but not limited to abuse of process, subject to certain exceptions not applicable here. See Id. § 2680(h). In determining whether § 2680(h) applies, courts “look to the substance of the[] claims and not how [the plaintiffs] labeled them in their complaint.” Garling, 849 F.3d at 1298.
Claim 1 - Abuse of Process . To start, this court agrees with the United States that § 2680(h) bars Mr. DeWalt's abuse of process claim (Claim 1). Pursuant to Claim 1, Mr. DeWalt alleges Magistrate Judge James abused the legal process in DeWalt I by denying Plaintiff's motion requesting an extension of time to amend his pleading per Judge Crabtree's Order, striking Plaintiff's tendered amended pleading, and denying Plaintiff's request for reconsideration of that decision, which included Magistrate James's assessment that the tendered amended pleading did not include any new claims or any plausible claims against the City. [#10 at 4-5]; see also [#25 at 9-10]. But as the United States argues, § 2680(h) explicitly bars an abuse of process claim. See [#21 at 9]. Because the United States has not waived its sovereign immunity for the intentional tort of abuse of process, I conclude that the court lacks subject matter jurisdiction over Claim 1. See Garling, 849 F.3d at 1294 (“When an exception applies, sovereign immunity remains, and federal courts lack jurisdiction.”). Accordingly, I respectfully RECOMMEND that the Motion to Dismiss be GRANTED in this regard and Claim 1 be DISMISSED without prejudice.
Claims 2 and 3 - Intentional Infliction of Emotional Distress and Negligence . Next, the United States argues that § 2680(h) also bars Mr. DeWalt's claims for intentional infliction of emotional distress (Claim 2) and negligence (Claim 3) because, despite their labels, those claims are similarly founded on Judge Vratil's and Magistrate Judge James's alleged abuse of the legal process. See [#21 at 9-10; #26 at 4-5]. While this court agrees that Claims 2 and 3 may arguably assert additional abuse of process claims, this is not entirely clear from the face of the Second Amended Complaint. See generally [#10].
In considering whether the United States consented to suit under the FTCA, including a consideration of the exceptions to suit in § 2680(h), federal courts “assume Congress proceeded from an understanding of established tort definitions when enacting and amending the various sections of the FTCA, and consequently look to the traditional and commonly understood legal definition of the tort arguably excluded by § 2680(h).” Franklin v. United States, 992 F.2d 1492, 1495-96 (10th Cir. 1993) (quotations omitted) (considering whether the plaintiff's medical negligence claim was a claim for battery, which § 2680(h) prohibits, or rather a claim for a breach of the duty of informed consent, which arises under a theory of negligence and which § 2680(h) does not prohibit). Generally, the tort of abuse of process arises when someone intentionally and illicitly uses an order of the court or some other judicial authority for purposes of causing harm to another. See Restatement (Third) of Torts: Liab. for Econ. Harm § 26 (2010); cf. McShares, Inc. v. Barry, 970 P.2d 1005, 1015 (Kan. 1998) (“The essential elements of [an abuse of process claim under Kansas law] are a knowingly illegal or improper use of the process done for the purpose of harassing or causing hardship, which resulted in damage to the state court plaintiff.”). By contrast, a claim for intentional infliction of emotional distress arises when an actor engages in extreme and outrageous conduct for the sole purpose of causing emotional harm. See Restatement (Third) of Torts: Phys. & Emot. Harm § 46 (2012); cf. Roberts v. Saylor, 637 P.2d 1175, 1179 (Kan. 1981) (“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress.”). And a claim for negligence generally arises when someone fails to exercise reasonable care when required to do so. See Restatement (Third) of Torts: Phys. & Emot. Harm § 3 (2010); cf. Fieser v. Kansas State Bd. of Healing Arts, 130 P.3d 555, 558 (Kan. 2006) (explaining that Kansas courts use the term “negligence . . . to mean duty and breach.”).
Claim 2 alleges that Judge Vratil and Magistrate Judge James intentionally inflicted emotional distress on Mr. DeWalt by “denying [] his civil rights” and showing favoritism to the City by dismissing Mr. DeWalt's claims against the City despite allegations that Mr. DeWalt encountered serious racial threats. [#10 at 5-6]. Claim 3 alleges that Judge Vratil and Magistrate Judge James breached their duty of care owed to Plaintiff by dismissing his claims against the City despite allegations of racism, refusing Plaintiff's requests to amend his pleadings, and not disclosing their alleged relationships with the City. [Id. at 6]. In construing Mr. DeWalt's pleadings liberally as this court must, this court concludes that § 2680(h) does not bar Plaintiff's intentional infliction of emotional distress claim (Claim 2) or negligence claim (Claim 3), given the distinctness between the factual underpinnings of these claims and Mr. DeWalt's claim of abuse of process (Claim 1). That is, while Claims 2 and 3 arise from Judge Vratil's and Magistrate Judge James's conduct in DeWalt I and II, they appear to go beyond Magistrate Judge James's conduct regarding Mr. DeWalt's attempts to amend his operative pleading in DeWalt I-the main focus of the abuse of process claim (Claim 1). See Benavidez v. United States, 177 F.3d 927, 929-32 (10th Cir. 1999) (concluding that allegations of a therapists sexual advances towards an underage patient were commonly understood to encompass a claim for negligent malpractice, rather than assault or battery, because the conduct arguably violated the therapist's professional duty of care).
Though a close call, I conclude that § 2680(h) does not bar Claims 2 and 3. Cf. Franklin, 992 F.2d at 1496-99 (concluding that the plaintiffs' alleged lack of consent claim, asserted in the context of an unauthorized medical procedure, fit squarely within the definition of a battery claim precluded by § 2680(h), and conclusory allegations of negligence without more did not assert an independent negligence claim). Nevertheless, this court concludes below that the FTCA bars Mr. DeWalt's negligence and intentional infliction of emotional distress claims for another reason.
3.Private Analog
As explained, the FTCA imposes liability on the United States only when state law recognizes liability for a private person under like circumstances. Ayala v. United States, 49 F.3d 607, 610 (10th Cir. 1995). Because the events giving rise to Mr. DeWalt's FTCA claims occurred in Kansas, this court applies Kansas state law. See Hill, 393 F.3d at 1117. The “like circumstances” inquiry does not require the court to find a situation under the “same circumstances, but require[s] it to look further afield” to instances where state law would impose liability on a private person acting in a similar way. United States v. Olson, 546 U.S. 43, 46-47 (2005) (emphasis in original; internal quotations omitted) (concluding that federal mine inspectors may be analogous to private individuals under state negligence law even though no private individual can inspect a federal mine).
The United States argues that the court lacks subject matter jurisdiction over Mr. DeWalt's FTCA claims because there is no private analog for judicial officers. [#21 at 10-11; #26 at 5]. According to the United States, Mr. DeWalt cannot identify any private individuals that would be liable under Kansas law for actions arising out of judicial decision-making. [#21 at 10-11; #26 at 5]. I respectfully agree.
Mr. DeWalt's claims all stem from federal judicial officers' adverse rulings in deciding legal issues presented in DeWalt I and II. In Howard v. United States District Court for Southern District of Ohio, the court confronted a similar issue when the plaintiff alleged various FTCA claims against federal judges who issued adverse rulings against the plaintiff in prior lawsuits. No. 2:10-CV-757, 2011 WL 1043961, at **1-2 (S.D. Ohio Mar. 17, 2011). At the outset, the Howard court noted that “there are no private judges . . . who would be the counterparts of federal judges” for purposes of the private analog under the FTCA. Id. at *3. The court continued that while this may not be fatal in all circumstances, i.e., for persons operating lighthouses or inspecting mines, it was in Howard because there was no suggestion (or authority) that a private individual could be liable for conduct related to “deciding legal issues presented in a civil action, ” especially considering certain immunities judicial officers enjoyed when exercising their judicial functions. Id. at *4 (discussing Figueroa v. United States, 739 F.Supp.2d 138 (E.D.N.Y. 2010) (finding no private analog for negligence claim arising out of issuance of forged passport)); Akutowicz v. United States, 859 F.2d 1122 (2d Cir. 1988) (finding no private analog for FTCA claims arising out of the quasi-adjudicative action of withdrawing a person's citizenship)); Cortez v. E.E.O.C., 585 F.Supp.2d 1273 (D.N.M. 2007) (finding no private analog for FTCA claims arising out of EEOC's alleged negligence in investigating discrimination claim))). The Howard court therefore concluded that there is no private actor that “function[s] remotely like federal judges function when they issue rulings in civil lawsuits” for purposes of the FTCA and dismissed the plaintiff's FTCA claims. Id.; see also Id. at **5-8 (concluding in dicta that the plaintiff could not overcome absolute judicial immunity based on allegations that a federal judge's adverse rulings injured the plaintiff).
The same appears true here. As mentioned, Mr. DeWalt's FTCA claims all stem from adverse rulings issued in DeWalt I and II. See generally [#10]. Indeed, each of Mr. DeWalt's claims rests on his allegations that Judge Vratil and Magistrate Judge James issued rulings on legal issues presented to the court and decided those issues adversely to Mr. DeWalt in violation of his civil rights and did so to protect the City. See generally [id.]. Based on these allegations, this court concludes that Mr. DeWalt fails to identify a private analog for purposes of waiving the United States' sovereign immunity and imposing liability under the FTCA. See Howard, 2011 WL 1043961, at **1-4. Thus, I respectfully RECOMMEND that the Motion to Dismiss be GRANTED in this regard and Claims 1-3 be DISMISSED without prejudice.
CONCLUSION
For the reasons stated herein, this court respectfully RECOMMENDS that:
(1) The United States' Motion to Dismiss [#21] be GRANTED; and
(2) Mr. DeWalt's FTCA Claims (Claims 1-3) and Second Amended Complaint be DISMISSED without prejudice for lack of subject matter jurisdiction.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int 'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).