United States District Court, D. South Carolina, Greenville Division
Timothy M. Cain United States District Judge.
This matter is before the court on a motion to dismiss, or in the alternative, motion for summary judgment filed by the United States of America (“United States”). (ECF No. 150). Kristen Miles Anderson (“Anderson”) filed a response in opposition, and the United States filed a reply. (ECF Nos. 152, 153). In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02, D.S.C., this matter was referred to a magistrate judge for pretrial handling. Before the court is the magistrate judge’s Report and Recommendation (“Report”), recommending that the court grant the motion and dismiss the United States from this action. (ECF No. 157). Anderson has filed timely objections. (ECF No. 168). The United States has filed a reply to Anderson’s objections. (ECF No. 175). On December 7, 2015, Anderson also filed a motion to amend the complaint, seeking to add a new defendant and a new claim. (ECF No. 179). On December 8, 2015, the court held a hearing on the motion filed by the United States.
The Report has no presumptive weight and the responsibility to make a final determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 270- 71 (1976). In making that determination, the court is charged with conducting a de novo review of those portions of the Report to which either party specifically objects. See 28 U.S.C. § 636(b)(1). Then, the court may accept, reject, or modify the Report or recommit the matter to the magistrate judge. Id. In the absence of specific objections, this court is not required to provide an explanation for adopting the Report. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “in the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee’s note).
I. Factual Background
Anderson was a teller/manager at a SunTrust Bank (“SunTrust”) in Greenville, South Carolina. (ECF No. 37 at 4). In November 2009, SunTrust’s management and security team began an investigation into possible embezzlement at the branch where Anderson was employed. (ECF No. 37 at 4). SunTrust contacted the United States Secret Service (“USSS”) to assist in the investigation. (ECF No. 37 at 4). On December 3, 2009, SunTrust’s regional security investigators contacted Anderson and voiced their suspicion that she had embezzled the funds. (ECF No. 37 at 4). They directed her to come to the bank and to bring any funds in her possession. (ECF No. 37 at 5).
At this meeting with bank investigators, Anderson returned approximately $35, 000.00 in embezzled bank funds and made incriminating statements. (ECF No. 37 at 5). Immediately after making such statements, USSS agents Richard Kerns (“Kerns”) and Gregory Johnson (“Johnson”) entered the room and interviewed Anderson. (ECF No. 37 at 5-6). After the interviews, Anderson rode with Kerns and Johnson to the Greenville, South Carolina Resident Office of the Secret Service (“GRO”) to have her photograph and fingerprints taken. (ECF No. 37 at 6). She also wrote and signed a confession admitting to the embezzlement of bank funds. (ECF Nos. 168-8, 168-9).
That night, Kerns began a series of telephone calls to Anderson on his government-issued phone. (ECF No. 37 at 7). On January 13, 2010, Kerns called Anderson to say he wanted to meet with her to discuss her case. (ECF Nos. 150-8 at 1-2; 152 at 3; 168-41 at 8). Kerns met with Anderson in Greenwood, South Carolina (hereinafter, the “Greenwood Incident”). (ECF Nos. 150-8 at 1-2; 152 at 3; 168-41 at 8). Kerns entered Anderson’s vehicle, and Anderson decided to drive to a nearby park where there would not be a “whole lot of people.” (ECF Nos. 150-6 at 3; 152 at 3). During the drive, they discussed their respective marriages and her case. (ECF No. 150-8 at 2). Kerns told her that he would help her out and that he would get her probation. (ECF No. 150-8 at 2). Once at the park, they got out of the car, and Kerns allegedly forced Anderson to kiss him. (ECF No. 152-20). He told her that compliance with sexual demands would favorably impact the case against her. (ECF No. 152 at 3). They left shortly after the kiss because “someone from [Kern’s] office had called, and he was supposed to be at a meeting, and he was late for it, and they were looking for him.” (ECF No. 152-20). Anderson then drove Kerns back to his car and she went home. (ECF No. 152-20).
Although Kerns and Anderson subsequently talked on the phone, they did not see each other again until March 18, 2010, when Kerns called Anderson to tell her that his wife was out of town and that he wanted to meet her that night for drinks. (ECF No. 150-8 at 2). Anderson met Kerns in Greenville, South Carolina, and parked at a Holiday Inn a block away from the GRO (hereinafter, the “Greenville Incident”). (ECF No. 152-24). They went to a bar a block away from the GRO where they had a drink and stayed for about thirty minutes. (ECF No. 152-25). Anderson testified in her deposition that she was mad “because he told me it was about my case, and then when I got there it wasn’t about my case. He would do that to me all the time.” (ECF No. 152-25). While at the bar, Kerns made sexual advances towards Anderson. (ECF No. 152-25). She told him that she had to leave. (ECF No. 152-25). Kerns said he would walk her to her car, but first he needed to get papers from the GRO. (ECF No. 152-25). They entered the GRO at 11:38:47 p.m. (ECF No. 150-11).
Kerns showed Anderson his office and his boss’s office. (ECF No. 150-8 at 3). Kerns kept telling Anderson that “he was on [her] side and all [she] had to do was trust him and he was going to make sure [she] didn’t go to prison and that [she] got probation.” (ECF No. 150-8 at 3- 4). While in his boss’s office, Kerns started to kiss Anderson, and they had intercourse. (ECF No. 150-8 at 3-4). At 12:35:59 a.m. on March 19, 2010, they left. (ECF No. 150-8 at 4).
On May 26, 2010, Kerns submitted his first case status report to his GRO supervisor regarding the criminal investigation of Anderson. (ECF No. 150-10). The report did not include references to the Greenwood or Greenville Incidents, or that Kerns had been calling Anderson. (ECF No. 150-10). A grand jury indicted Anderson on August 10, 2010, and she was formally arrested and arraigned on August 26, 2010. (ECF No. 150-12). Kerns submitted a second status report to his GRO supervisor on September 8, 2010. (ECF No. 150-12). The second status report did not mention the Greenwood or Greenville Incidents, or that Kerns had been calling Anderson. (ECF No. 150-12).
On April 13, 2011, after pleading guilty in her criminal case, Anderson informed U.S. Probation Officer Robin Brown (“USPO Brown”) of the incident. (ECF No. 150-13). Anderson claimed that she decided to report the incident because Kerns “told her that he couldn’t help her with her case.” (ECF No. 150-13 at 2). Anderson had discussed the incident with her defense attorney prior to informing USPO Brown. (ECF Nos. 150-13 at 2; 150-14 at 2). The Assistant United States Attorney (“AUSA”) prosecuting Anderson’s case was immediately made aware of the situation and informed his supervisor and Kerns. (ECF No. 150-14). Kerns told the AUSA that the claims were unfounded; however, Kerns later called the AUSA and told him that he was not entirely truthful with him, and that he was concerned that he had compromised the criminal case against Anderson. (ECF No. 150-14). Thereafter, Anderson was sentenced to fifteen months’ imprisonment, followed by five years’ supervised release.
II. Procedural Background
Anderson filed a claim with the Office for General Counsel seeking damages for only the Greenville Incident, and the claim was denied. (ECF No. 178). Anderson filed this case on November 6, 2012. (ECF No. 1). In her amended complaint, she asserts various claims based on alleged violations of her constitutional rights and tort claims against the United States, Kerns, Johnson, Thomas Griffin, Jr., Mark J. Sullivan, Secretary Janet Napolitano, and other defendants not yet named. (ECF No. 37).
On April 15, 2013, the United States filed its first motion to dismiss and motion for summary judgment. (ECF No. 52). Notably, the United States did not argue that the discretionary-function exception applies to the supervisor-liability claim. (ECF No. 52). The court granted in part and denied in part that motion. (ECF No. 84). The court dismissed all of the defendants except Kerns and the United States. (ECF No. 84). The court found that Anderson had alleged sufficient facts to survive a motion to dismiss for claims of vicarious liability and supervisory liability against the United States in her amended complaint and that these issues would be better resolved on a more-developed factual record. (ECF No. 84 at 5).
Under the federal rules, each pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A motion to dismiss under Fed.R.Civ.P. 12(b)(1) examines whether the complaint fails to state facts upon which jurisdiction can be founded. The burden of proving subject matter jurisdiction in response to a Rule 12(b)(1) motion to dismiss is on the plaintiff, the party asserting jurisdiction. Richmond, Fredericksburg & Potomac R.R. v. United States, 945 F.2d 765, 768 (4th Cir.1991). The court should grant the motion “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999) (internal quotation marks and citations omitted).
Summary judgment is appropriate if, after reviewing the entire record in a case, the court is satisfied that no genuine issues of material fact exist and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). An issue of fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Issues of fact are “material” only if establishment of such facts might affect the outcome of the lawsuit under the governing substantive law. Id.
“The party moving for summary judgment has the [initial] burden of establishing that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law.” Catawba Indian Tribe of S.C. v. South Carolina, 978 F.2d 1334, 1339 (4th Cir. 1992). Thereafter, the party opposing summary judgment must come forth with “sufficient evidence supporting the claimed factual dispute, ” and cannot “rest upon the mere allegations or denials of his pleading.” Anderson, 477 U.S. at 248 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 247. “Although the court must draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013); see also Catawba Indian Tribe of S.C., 978 F.2d at 1339 (“The non-moving party ‘must do more than simply show that there is some metaphysical doubt as to the material facts.’” (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986))); Williams v. Cerberonics, Inc., 871 F.2d 452, 459 (4th Cir. 1989) (stating that the plaintiff “presented no evidence to support her claim other than her own assertions” and set against the documentation, “no reasonable trier of fact could” find for her); Ross v. Commc’ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), overruled on other grounds, 490 U.S. 228 (1989) (“Genuineness means that the evidence must create fair doubt; wholly speculative assertions will not suffice.”). In sum, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co, 475 U.S. at 587 (Cities Serv. Co., 391 U.S. at 289)).
The United States has moved to dismiss the claims for negligent hiring, retention, and supervision for lack of subject matter jurisdiction. (ECF No. 150 at 1). The United States has also moved to dismiss the remaining FTCA claims because there is no dispute of material fact concerning the liability of the United States for Kerns’s acts. (ECF No. 150 at 1).
The magistrate judge recommended that the court grant the summary judgment motion filed by the United States. (ECF No. 157). The magistrate judge recommended dismissing the complaint insofar as it seeks to impose liability on the United States for negligent hiring, retention, and supervision because the claim is barred pursuant to the discretionary-function exception of the FTCA, and in addition, because no genuine issue of material fact exists as to whether the United States knew or should have known that employing Kerns created an unreasonable risk to the public. (ECF No. 157 at 11-26). The magistrate judge also recommended dismissing the negligence claim against the United States because Anderson fails to establish what stand-alone duty the United States owed to Anderson, and in any event, how a breach of a duty to Mirandize Anderson is the proximate cause of her harm. (ECF No. 157 at 26-32). And finally, the magistrate judge recommended dismissal of the vicarious liability claims against the United States because Anderson failed to introduce genuine issues of material fact showing that ...