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Butts v. Department of The Navy

United States District Court, E.D. Virginia, Norfolk Division

March 5, 2014



REBECCA BEACH SMITH, Chief District Judge.

This matter comes before the court on the Motion to Dismiss ("Motion") and accompanying Memorandum in Support, filed by the Defendant, the Department of the Navy ("Navy"), pursuant to Federal Rule of Civil Procedure 12(b)(1), and in the alternative, Federal Rule of Civil Procedure 12(b)(6). ECF No. 5.


This suit arises out of an accident that occurred at the Portsmouth Commissary on January 26, 2012. The pro se Plaintiff, Jacqueline Ray Butts, alleges that she "slipped and fell on a mat in front of the romaine lettuce refrigerator in the produce section" of the Portsmouth Commissary on the afternoon of January 26, 2012. Compl. at 2, ECF No. 1. She explains that, following her fall, two Commissary patrons helped her to her feet, and that one of the patrons "made her aware of the water under the mat." Id . The Plaintiff alleges that the Commissary called paramedics after being notified of the accident, and that the paramedics transported her to Maryview Medical Center, where she was diagnosed with a concussion. Id.

The Plaintiff explains that she saw several doctors and underwent numerous medical tests in the months following the accident. Id . at 2-4, 6-7. She claims that myriad physical injuries resulted from the accident, including "severe headaches every day, eye pain, eye sensitivity, facial numbness, slurred speech, neck pain, back pain, weakness in both legs, left arm and hand pain, pain in both knees and feet, tic (involuntary movements), dizziness, numbness of both legs and feet and left hip pain." Id . at 2. The Plaintiff also claims that the accident caused her arthritis of the spinal cord, left hip, left knee, and right knee. Id . at 8.

In addition to her physical injury claims, the Plaintiff alleges that the Navy failed to conduct a proper investigation of her slip-and-fall accident. Id . at 2. She claims that the Navy's investigation involved surveillance of her through the cable box in her bedroom; monitoring her computer activity, email, cell phone, land line, and security system; nuisance phone calls; and the delivery of unwanted food to her home on two occasions. Id . at 2, 4-8. In support of this claim, the Plaintiff asserts that a change in the number of times she had to press the buttons on her television remote alerted her that "the remote control to the T.V. in her bedroom had to be turning on a mechanism inside her T.V." Id . at 4-5. She also asserts that a Verizon representative told her "in a soft voice that the cable boxes she has in her home have cameras and microphones in them." Id . at 5. Additionally, the Plaintiff claims that the Navy conspired with some of her doctors to "find no fault with her claim, " and that her doctors "deliberately avoided and withheld treatment of her left leg." Id . at 3.

Based on these allegations, the Plaintiff asserts claims for personal injury and invasion of privacy under the Federal Tort Claims Act ("FTCA"), and for violation of her civil rights under 42 U.S.C. ยง 1983. Id . at 1, 8. She also requests an injunction prohibiting the Navy from accessing "digital and electronic devices in her home." Id . at 8.

On or about May 17, 2012, the Plaintiff filed an administrative claim with the Navy. Id . at 3. The Navy denied her claim approximately one year later. Id . at 7. The Plaintiff filed her complaint in the instant case on October 15, 2013. On December 16, 2013, the Navy filed the instant Motion to Dismiss, arguing that the court lacks subject matter jurisdiction to consider the Plaintiff's claims under Federal Rule of Civil Procedure 12(b)(1); alternatively, the Navy argues that the Plaintiff's complaint fails to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). The Plaintiff was advised of her right to respond pursuant to Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975), and this court's Local Civil Rule 7(K), and she did respond. The Motion has been fully briefed, and is now ripe for review.


A. Subject Matter Jurisdiction Under Federal Rule of Civil Procedure 12 (b) (1)

The plaintiff bears the burden of proving that subject matter jurisdiction exists by a preponderance of the evidence. See, e.g., United States ex rel. Vuyyuru v. Jadhav , 555 F.3d 337, 347-48 (4th Cir. 2009) (citing Adams v. Bain , 697 F.2d 1213, 1219 (4th Cir. 1982)). When a defendant challenges the existence of the court's subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), "the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.'" Evans v. B.F. Perkins Co. , 166 F.3d 642, 647 (4th Cir. 1999) (quoting Richmond, Fredericksburg & Potomac R.R. Co. v. United States , 945 F.2d 765, 768 (4th Cir. 1991)). The district court should grant the Rule 12(b)(1) motion to dismiss "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.'" Id . (quoting Richmond, Fredericksburg & Potomac R.R. Co. , 945 F.2d at 768).

B. Failure to State a Claim Upon Which Relief Can Be Granted Under Federal Rule of Civil Procedure 12(b)(6)

Federal Rule of Civil Procedure 8(a)(2) provides, in pertinent part, "[a] pleading that states a claim for relief must contain.. a short and plain statement of the claim showing that the pleader is entitled to relief." The complaint need not have detailed factual allegations, but Rule 8 "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). "To survive a 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 , 556 U.S. 662, 678 (2009) (quoting Twombly , 550 U.S. at 570). Facial plausibility means that a "plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id ...

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