Hamilton v. United States of America

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

DEANDRE LAMONT HAMILTON,

Plaintiff,

v. Civil Action No. 19-1105 (RDM)

UNITED STATES OF AMERICA et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

On May 19, 2016, Wayne Wright, a criminal defendant out on pretrial release, murdered

Dana Hamilton. Although Wright was prosecuted for the crime, Plaintiff DeAndre Hamilton, as

the personal representative of Dana Hamilton’s estate, alleges in this case that the United States

government bears some responsibility for not preventing the killing. At the time Wright shot

Dana Hamilton, the Court Services and Offender Supervision Agency (“CSOSA”) was supposed

to be tracking Wright’s whereabouts using a GPS monitor. But the government contractor

responsible for attaching the tracking device to Wright’s body, Sentinel Offender Services, LLC

(“Sentinel”), mistakenly fastened it to Wright’s prosthetic leg. Leaving the tracked prosthesis at

home, Wright traveled undetected to an area he was under a court order to avoid and, there,

murdered Dana Hamilton.

In his original complaint, Plaintiff asserted claims against the United States, CSOSA,

Sentinel, and John Does 1–5 for negligently installing the tracking device and thereby causing

Dana Hamilton’s death. Dkt. 1. The United States and CSOSA moved to dismiss on several

grounds. Dkt. 11. In an earlier opinion, the Court granted the federal Defendants’ motion to

dismiss because sovereign immunity barred suit against those Defendants. Hamilton v. United

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States, 502 F. Supp. 3d 266 (D.D.C. 2020) (“Hamilton I”). The Court held, in particular, that the

limited waiver of sovereign immunity contained in the Federal Tort Claims Act (“FTCA”) did

not permit Plaintiff’s claims against CSOSA because the FTCA does not waive sovereign

immunity for suits against federal agencies. Likewise, the FTCA did not permit Plaintiff’s

claims against the United States because, although the FTCA allows certain claims against the

United States, it does not waive sovereign immunity for claims premised on the negligence of

independent contractors.

Following the Court’s decision, Plaintiff sought leave to amend his complaint to allege

that the United States was directly negligent in its decisions to hire and retain Sentinel. 1 Dkt. 27.

With the parties’ consent, the Court granted the motion to amend and construed the

government’s opposition to that motion, Dkt. 30, as a renewed motion to dismiss. Because

Plaintiff’s new claim again falls within an exception to the FTCA—this time, the discretionary-

function exception—the Court will GRANT the government’s motion and will DISMISS

Plaintiff’s claims against the United States.

I. BACKGROUND

A. Factual and Procedural Background

The Court detailed the tragic series of events that led to this lawsuit in its prior opinion.

See Hamilton I, 502 F. Supp. 3d at 270–71. In short, on April 30, 2016, Wright, also known as

Quincy Green, was charged in the Superior Court of the District of Columbia with unlawful

possession of a firearm. Dkt. 33 at 6 (Am. Compl. ¶ 25). A few days later, the Superior Court

released Wright pending trial while imposing certain conditions. Id. (Am. Compl. ¶ 26). As

relevant here, the court ordered a component of CSOSA, known as the Pretrial Services Agency

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The proposed amended complaint also dropped Plaintiff’s claims against CSOSA.
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(“PSA”), to attach a GPS monitoring device to Wright so that PSA could track his location. Id.

And the court prohibited Wright from visiting the 800 block of Chesapeake Street S.E. in the

District of Columbia. Id. Under a contract between PSA and Sentinel, it was Sentinel’s job to

secure the GPS device to Wright’s leg. Id. at 6–7 (Am. Compl. ¶¶ 27–28). Wright has one

natural leg and one detachable prosthetic leg. Id. at 7 (Am. Compl. ¶ 29). Sentinel’s agents

(named in the amended complaint as John Does 1–5) attached the GPS to Wright’s prosthetic

leg. Id. (Am. Compl. ¶ 30). Wright then circumvented the tracking device by replacing the

tracked prosthesis with a spare one, traveled in violation of the stay-away order to the 800 block

of Chesapeake Street S.E., and shot and killed Dana Hamilton. Id. (Am. Compl. ¶¶ 31–32).

Within a week, Wright was charged with second-degree murder. Id. (Am. Compl. ¶ 32).

Plaintiff originally filed this lawsuit on April 18, 2019, against the United States,

CSOSA, Sentinel, and John Does 1–5. Dkt. 1. The federal Defendants moved to dismiss on

several grounds. Dkt. 11; Dkt. 13. On November 16, 2020, the Court granted the federal

Defendants’ motion. Hamilton I, 502 F. Supp. 3d at 278. The Court dismissed Plaintiff’s claims

against CSOSA because federal agencies, unlike the United States itself, are not subject to suit

under the FTCA—and CSOSA “is an independent executive branch agency.” Id. at 273–74; see

also D.C. Code § 24-133(a) (establishing CSOSA “within the executive branch of the Federal

Government”); Dkt. 1 at 3 (Compl. ¶ 6) (referring to CSOSA as “a government agency operating

under the laws of the United States”). The Court dismissed Plaintiff’s claims against the United

States, in turn, pursuant to the independent-contractor exception to the FTCA. Hamilton I, 502

F. Supp. 3d at 274–77. Based on an analysis of the contract between PSA and Sentinel, the

Court concluded that the government did not exert control over Sentinel with respect to the

installation of GPS tracking devices. Id. Accordingly, the United States could not be held liable

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for Sentinel’s alleged negligence. Id. at 277. The Court also noted that, in opposing the motion

to dismiss, Plaintiff had asserted that “the United States was negligent for hiring Sentinel in the

first place, a claim that would not be subject to the FTCA’s independent contractor exception.”

Id. But Plaintiff’s argument suffered from a glaring problem—“the complaint ma[de] no

mention of this separate cause of action and d[id] not allege any facts to support it.” Id. at 278.

That argument thus could not save the original complaint from dismissal. Id. But the Court

permitted Plaintiff to “file a motion seeking leave to amend his complaint within twenty-one

days” of its decision, to the extent “Plaintiff ha[d] a good-faith basis . . . to allege that the United

States was negligent for hiring Sentinel given known concerns about the company’s

competence.” Id.

On December 7, 2020, Plaintiff filed a motion to amend, dropping his claims against

CSOSA while seeking to add a new claim alleging that the United States was negligent in its

decisions to retain Sentinel. 2 Dkt. 27. The United States opposed the motion to amend on the

ground that the new claim would be barred by additional exceptions to the FTCA and that, in any

event, the new claim failed on the merits. Dkt. 30. At a hearing on that motion, the Court (with

the parties’ consent) granted the motion to amend but construed the government’s opposition as a

motion to dismiss. Minute Entry (Feb. 5, 2021). In a new Count IV, the amended complaint

asserts that the United States “had or should have had knowledge of Defendant Sentinel’s

unfitness to perform its contractually obligated duties,” in light of the company’s “history of

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Although the amended complaint also names Sentinel as a defendant, Plaintiff has yet to file
proof that he has served Sentinel. The Court previously granted Plaintiff’s request to stay his
time to effect service on Sentinel until thirty days after the resolution of the government’s first
motion to dismiss. See Dkt. 24; Minute Order (Apr. 14, 2020). That time passed long ago, and
thus, unless Plaintiff either files proof of service on Sentinel or establishes good cause for any
failure to do so on or before July 21, 2021, the Court will dismiss the pending claims against
Sentinel without prejudice pursuant to Federal Rule of Civil Procedure 4(m).
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negligence and of being sued for alleged impropriety, including not properly monitoring

offenders and providing faulty monitoring equipment.” Dkt. 33 at 13 (Am. Compl. ¶¶ 61–62).

The amended complaint details several past accusations of wrongdoing and incompetence

against Sentinel and alleges that, despite the controversy surrounding the company, PSA

awarded Sentinel a contract to provide electronic monitoring services and equipment for pretrial

and probationary defendants and then renewed that contract year after year. Id. at 4–5 (Am.

Compl. ¶¶ 15–20). For example, in 2012, after years of litigation, a woman in Georgia allegedly

received $175,000 because Sentinel had negligently issued a request for her arrest long after she

had already completed her probation. Id. at 4 (Am. Compl. ¶ 16). In March 2013, a Florida man

sued Sentinel for using allegedly faulty monitoring equipment that caused his false arrest and

imprisonment; Sentinel allegedly settled the suit in 2016 for an undisclosed amount. Id. at 5

(Am. Compl. ¶ 17). Also in 2013, an audit in Orange County, California, allegedly found that

more than a dozen out of 143 offenders had faulty monitoring bracelets, at least five of which

had gone completely offline for twenty days. Id. (Am. Compl. ¶ 18). As a result, according to

the amended complaint, Sentinel failed to report probation violations that the defective devices

should have detected. Id. A subsequent audit in Los Angeles County, California, allegedly told

a similar story. Id. It found that, during a two-month period, fifty-one of 196 defendants had to

exchange their GPS trackers because of malfunctions. Id. Violent offenders allegedly went

unmonitored for more than five days at a time. Id.

As the Court explained in Hamilton I, PSA first contracted with Sentinel to provide

electronic monitoring of defendants on September 26, 2013. Hamilton I, 502 F. Supp. 3d at 275.

According to Plaintiff, as part of obtaining the contract, “Sentinel completed a Past and Present

Performance Questionnaire and was required to provide details regarding their performance of

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previously awarded contracts.” Dkt. 33 at 6 (Am. Compl. ¶ 22). PSA extended the contract

annually through September 25, 2018, moreover, despite further legal trouble for Sentinel. Id.

(Am. Compl. ¶ 24). For instance, in 2015, another Georgia woman was allegedly awarded

$200,000 because Sentinel had failed to withdraw a warrant request after she had paid all

outstanding fees. Id. at 5 (Am. Compl. ¶ 19). And in 2016, an Illinois woman sued Sentinel for

allegedly failing to monitor two juveniles who attacked the plaintiff while purportedly under the

company’s electronic supervision. Id. (Am. Compl. ¶ 20). Finally, the amended complaint avers

that approximately 2,800 plaintiffs have filed a class-action suit against Sentinel in Georgia for

allegedly using coercive tactics, such as threats of additional jail time, to extract money from

probationers. Id. at 4 (Am. Compl. ¶ 15). As one example, the suit alleges that Sentinel required

people to submit to and pay for drug tests that no court had ordered. Id. Given these allegations

against Sentinel, Plaintiff alleges that the United States had a duty to hire a more reliable

contractor.

B. Statutory Background

Under the doctrine of sovereign immunity, the United States may not be sued without its

consent. United States v. Mitchell, 445 U.S. 535, 538 (1980). “A waiver of sovereign immunity

‘cannot be implied but must be unequivocally expressed.’” Id. (quoting United States v. King,

395 U.S. 1, 4 (1969)). The government’s consent to be sued “must be ‘construed strictly in favor

of the sovereign,’” Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983) (quoting McMahon v.

United States, 342 U.S. 25, 27 (1951)), and must not be “‘enlarge[d] . . . beyond what the

language requires,’” id. at 685–86 (alteration in original) (quoting E. Transp. Co. v. United

States, 272 U.S. 675, 686 (1927)).

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 The FTCA, upon which Plaintiff premises his claims against the United States, provides a

limited waiver of federal sovereign immunity. It permits individuals to bring suit in federal

district court against the United States “for injury or loss of property, or personal injury or death

caused by the negligent or wrongful act or omission of any employee of the Government while

acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). The FTCA

allows suits to proceed “under circumstances where the United States, if a private person, would

be liable to the claimant in accordance with the law of the place where the act or omission

occurred.” Id.

But the FTCA’s waiver of sovereign immunity is subject to several exceptions, at least

two of which may be relevant here. First, the FTCA does not waive sovereign immunity for

claims “based upon the exercise or performance” of “a discretionary function or duty . . . ,

whether or not the discretion involved be abused.” Id. § 2680(a). Second, the FTCA does not

waive sovereign immunity for intentional torts, including “[a]ny claim arising out of assault,

battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,

misrepresentation, deceit, or interference with contract rights.” Id. § 2680(h). “[A]bsent full

compliance with the conditions the Government has placed upon its waiver, courts lack

jurisdiction to entertain tort claims against it.” GAF Corp. v. United States, 818 F.2d 901, 904

(D.C. Cir. 1987).

II. LEGAL STANDARD

When confronted with a motion to dismiss under both Rule 12(b)(1) and Rule 12(b)(6),

the Court must first consider whether it has subject-matter jurisdiction. Steel Co. v. Citizens for

a Better Env’t, 523 U.S. 83, 94–95 (1998). Federal courts are courts of limited subject-matter

jurisdiction and “possess only that power authorized by the Constitution and statute.” Kokkonen

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v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The plaintiff bears the burden of

establishing jurisdiction, Kokkonen, 511 U.S. at 377, and “subject matter jurisdiction may not be

waived,” NetworkIP, LLC v. F.C.C., 548 F.3d 116, 120 (D.C. Cir. 2008) (internal quotation

marks and citations omitted).

A Rule 12(b)(1) motion may raise a “facial” or a “factual” challenge to the Court’s

jurisdiction. See Hale v. United States, No. 13-cv-1390, 2015 WL 7760161, at *3–4 (D.D.C.

Dec. 2, 2015). A facial challenge to the Court’s jurisdiction contests the legal sufficiency of the

jurisdictional allegations contained in the complaint. See Erby v. United States, 424 F. Supp. 2d

180, 182 (D.D.C. 2006). For a facial challenge, the Court must accept the allegations of the

complaint as true and must construe “the factual allegations in the complaint in the light most

favorable to the non-moving party.” Id.; see also I.T. Consultants, Inc. v. Republic of Pakistan,

351 F.3d at 1184, 1188 (D.C. Cir. 2003). In this sense, the Court must resolve the motion in a

manner similar to a motion to dismiss under Rule 12(b)(6). See Price v. Socialist People’s

Libyan Arab Jamahiriya, 294 F.3d 82, 93 (D.C. Cir. 2002).

Alternatively, a Rule 12(b)(1) motion may pose a “factual” challenge to the Court’s

jurisdiction. Erby, 424 F. Supp. 2d at 182–83. For factual challenges, the Court “‘may not deny

the motion to dismiss merely by assuming the truth of the facts alleged by the plaintiff and

disputed by the defendant,’ but ‘must go beyond the pleadings and resolve any disputed issues of

fact the resolution of which is necessary to a ruling upon the motion to dismiss.’” Id. (quoting

Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000)). In this

context, the factual allegations of the complaint are not entitled to a presumption of validity, and

the Court is required to resolve factual disputes between the parties. Id. at 183. The Court may

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consider the complaint, any undisputed facts, and “‘the [C]ourt’s resolution of disputed facts.’”

Id. (quoting Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)).

A motion to dismiss for failure to state a claim upon which relief can be granted under

Rule 12(b)(6) “tests the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235,

242 (D.C. Cir. 2002). In evaluating a Rule 12(b)(6) motion, the Court “must first ‘tak[e] note of

the elements a plaintiff must plead to state [the] claim to relief,’ and then determine whether the

plaintiff has pleaded those elements with adequate factual support to ‘state a claim to relief that

is plausible on its face.’” Blue v. District of Columbia, 811 F.3d 14, 20 (D.C. Cir. 2015)

(alterations in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 678 (2009)). The

complaint, however, need not include “detailed factual allegations” to withstand a Rule 12(b)(6)

motion. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff may survive a Rule

12(b)(6) motion even if “recovery is . . . unlikely,” so long as the facts alleged in the complaint

are “enough to raise a right to relief above the speculative level.” Id. at 555–56 (internal

quotation marks omitted). In assessing a Rule 12(b)(6) motion, a court may consider only “the

facts contained within the four corners of the complaint,” Nat’l Postal Pro. Nurses v. U.S.P.S.,

461 F. Supp. 2d 24, 28 (D.D.C. 2006), along with “any documents attached to or incorporated

into the complaint, matters of which the court may take judicial notice, and matters of public

record,” United States ex rel. Head v. Kane Co., 798 F. Supp. 2d 186, 193 (D.D.C. 2011).

III. DISCUSSION

The United States moves to dismiss on several grounds. At the threshold, the

government argues that the Court lacks jurisdiction over Plaintiffs’ negligent hiring claim based

on the intentional-tort and discretionary-function exceptions to the FTCA. Dkt. 30 at 4–9. Then,

on the merits, the government argues that the amended complaint does not adequately allege that

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the United States owed a duty to Dana Hamilton. Id. at 9–12. In the alternative, the government

contends that, even if it did owe a duty of care to Dana Hamilton, the amended complaint does

not adequately allege a breach of that duty. Id. at 12–13.

The Court begins, as it must, with jurisdiction. Although the government’s brief leads

with the intentional-tort exception, the Court will first address the the discretionary-function

exception, because it presents the more straight-forward grounds for dismissal. The FTCA does

not waive the federal government’s sovereign immunity for claims “based upon the exercise or

performance” of “a discretionary function or duty . . . , whether or not the discretion involved be

abused.” 28 U.S.C. § 2680(a). This exception aims to “prevent judicial ‘second-guessing’ of

legislative and administrative decisions grounded in social, economic, and political policy

through the medium of an action in tort.” United States v. S.A. Empresa de Viacao Aerea Rio

Grandense, 467 U.S. 797, 814 (1984).

The Supreme Court has established a two-prong test to assess whether government

conduct falls within the discretionary-function exception. See United States v. Gaubert, 499 U.S.

315, 322–33 (1991). First, a court must determine whether a “federal statute, regulation, or

policy specifically prescribes a course of action for the employee to follow.” Berkovitz v. United

States, 486 U.S. 531, 536 (1988). If a particular course of conduct is legally mandated but not

followed, the discretionary-function exception will not apply because a government actor “has

no rightful option but to adhere to [that] directive.” Id. But if the challenged conduct “involves

an element of judgment or choice,” the first prong of the discretionary-function test is satisfied.

Id. At the second prong, a court must consider whether the decision-making process in question

is “of the kind that the discretionary[-]function exception was designed to shield.” Id. The

exception was intended to “protect[] only governmental actions and decisions based on

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considerations of public policy.” Id. at 537. That is, “[d]ecisions that require choice are exempt

from suit under the FTCA only if they are ‘susceptible to policy judgment’ and involve an

exercise of ‘political, social, [or] economic judgment.’” Cope v. Scott, 45 F.3d 445, 448 (D.C.

Cir. 1995) (alteration in original) (quoting Gaubert, 499 U.S. at 325). When the challenged

conduct involves considerations of public policy, the exception protects “even government

abuses of discretion.” Shuler v. United States, 531 F.3d 930, 935 (D.C. Cir. 2008).

With respect to the second prong, Plaintiff does not—and, indeed, could not—contest

that the selection of contractors is the type of policy decision that the discretionary-function

exception was designed to protect. See Dkt. 34-1 at 10 (acknowledging that “it is difficult to

argue” that the second prong is not met in this case). As Plaintiff recognizes, clear D.C. Circuit

precedent establishes that “hiring, training, and supervision choices” are “susceptible to policy

judgment.” Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1217 (D.C. Cir. 1997).

Instead, Plaintiff pins his hopes to the first prong, arguing that “the act of hiring a prospective

contractor, and arguably in maintaining the contractual relationship between the United States

and its contractors, is not a decision which involves an element of judgment or choice.” Dkt. 34-

1 at 13.

Plaintiff argues that the government lacks any choice in the selection of contractors

because it must comply with the Federal Acquisition Regulations (“FAR”), 48 C.F.R. § 1 et seq.

Those regulations set forth “uniform policies and procedures for acquisition by all executive

agencies.” Id. § 1.101. As relevant here, Subpart 9.1 creates “policies, standards, and

procedures for determining whether prospective contractors . . . are responsible.” Id. § 9.100.

Contracting officers cannot award contracts unless they make an “affirmative determination of

responsibility.” 48 C.F.R. § 9.103(b). In order to be deemed “responsible,” a prospective

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contractor must, among other things, “have a satisfactory performance record,” “have a

satisfactory record of integrity and business ethics,” and “have the necessary organization,

experience, accounting and operational controls, and technical skills.” Id. § 9.104–1; see also id.

§ 9.104–3. A federal agency hiring a contractor thus must take certain steps and consider certain

factors.

But, as other courts have recognized, the procedural requirements imposed by the FAR

do no eliminate all choice from the selection of federal contractors. Rather, when selecting a

contractor within the FAR framework, a government agency is “required to evaluate and weigh a

plethora of factors” but still “us[es] its overall judgment as to the final choice.” Wood v. United

States, 290 F.3d 29, 38 (1st Cir. 2002); cf. Sloan v. U.S. Dep’t of Hous. & Urb. Dev., 236 F.3d

756, 760 (D.C. Cir. 2001) (holding that rules delineating conditions for the suspension of a

business from government work did not “convert the [suspension] decision into a

nondiscretionary act”). Indeed, the responsibility requirements on which Plaintiff relies

unambiguously call for the exercise of policy judgment. An agency must use its sound discretion

to determine what constitutes a “satisfactory” performance record or which technical skills are

“necessary.” 28 C.F.R. § 9.104–1. The Court concludes that a federal agency’s selection of

which contractor to hire involves an element of choice. Plaintiff’s suggestion to the contrary

strains credulity. Understandably, Plaintiff disagrees with the government’s conclusion that

Sentinel is a responsible contractor, but the discretionary-function exception shields “even

government abuses of discretion.” Shuler, 531 F.3d at 935.

To be sure, certain aspects of the FAR appear to create non-discretionary duties. For

instance, under the regulations, “[n]o purchase or award shall be made unless the contracting

officer makes an affirmative determination of responsibility.” Id. § 9.103(b). The Court may

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assume, for present purposes, that the complete failure to make that required determination

could, in certain circumstances, constitute the negligent dereliction of a non-discretionary duty

that could give rise to liability under the FTCA. But Plaintiff does not identify—in either his

complaint or his opposition to the motion to dismiss—any specific non-discretionary duty that

PSA violated when assessing whether to award a contract to Sentinel. In the absence of such an

allegation, PSA’s overall contracting decision involved an element of choice and the

discretionary-function exception bars Plaintiff’s negligent hiring claim. The Court thus lacks

jurisdiction over that claim and will, accordingly, grant the government’s motion to dismiss. 3

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Because the Court concludes that the discretionary-function exception bars Plaintiff’s
negligent hiring claim, the Court need not consider the government’s alternative argument that
the intentional-tort exception also applies. The government’s argument with respect to the
intentional-tort exception would seem to present a question of first impression. The Supreme
Court has held that the intentional-tort exception “does not merely bar claims for assault or
battery; in sweeping language it excludes any claim arising out of assault or battery.” United
States v. Shearer, 473 U.S. 52, 55 (1985). The exception thus encompasses claims that “sound in
negligence but stem from a battery.” Id. But no case of which the Court is aware has addressed
whether a claim against the government can “aris[e] out of” an intentional tort even where the
intentional tort was committed by a third party, rather than a government employee or contractor.
Cf. id. at 56–57 (“In enacting the Federal Tort Claims Act, Congress’ focus was on the extent of
the Government’s liability for the actions of its employees,” and the intentional-tort exception
was “at least intended to exclude claims arising from such intentional torts committed by
Government employees.”). That question is best left for another day.
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 CONCLUSION

For the foregoing reasons, it is hereby ORDERED that the government’s motion to

dismiss, Dkt. 30, is GRANTED and that Plaintiff’s claims against the United States are

DISMISSED. It is further ORDERED that, on or before July 21, 2021, Plaintiff shall file proof

of service on Sentinel or shall establish good cause for his failure to effect service. If Plaintiff

fails to do so, the Court will dismiss Plaintiff’s claims against Sentinel without prejudice

pursuant to Federal Rule of Civil Procedure 4(m).

SO ORDERED

/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge

Date: July 6, 2021

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