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Sharrer v. United States

United States District Court, W.D. Virginia, Roanoke Division

May 20, 2019



          Michael F. Urbanski, Chief United States District Judge.

         This matter comes before the court on defendant the United States of America's ("United States") motion to dismiss, ECF No. 60, plaintiff Mary Lee Sharrer's ("Sharrer") Amended Complaint, ECF No. 53. Sharrer responded to the United States' motion on May 6, 2019. ECF No. 65. The United States replied on May 13, 2019. ECF No. 66. For the reasons below, the court will GRANT the United States' motion and DISMISS with prejudice all counts brought against the United States.

         As the court exercised supplemental jurisdiction over Sharrer's claims against defendant Walter Sova ("Sova") dependent on its jurisdiction over the claims against the, United States, the court will also DISMISS Sharrer's claims against Sova. These claims must be brought in state court, should Coffey choose to do so.


         Sharrer works for KGS, Inc., a contract mail delivery service that delivers for the United States Postal Service ("USPS"). ECF No. 53, at 2-3. Sharrer picks up mail at the USPS main post office in Roanoke and delivers it to various locations in Virginia. Id. Sova, the only individual named by the Amended Complaint as a defendant, is a USPS employee who worked at the Roanoke Main Branch where Sharrer picks up the mail. Id.

         Sharrer alleges that Sova sexually harassed, assaulted, and battered her during work hours. Id. Sharrer's complaint includes a number of specific incidents of physical and verbal harassment and sexual assaults and batteries. Id. Sharrer alleges that she repeatedly told Sova to stop and consistently reported his behavior to other USPS employees, starting in September 2016. ECF No. 53, at 4. She claims USPS refused to prevent Sova from interacting with her and that USPS managerial employees were aware of prior complaints of sexual harassment against Sova.[2] Id. Sova was finally arrested after Sharrer initiated state criminal proceedings. Id.

         Sharrer now seeks to hold the United States and USPS liable for the assaults and batteries committed by Sova through the Federal Tort Claims Act, 28 U.S.C. §§ 2671 -2680. ("FTCA"), on the basis of respondeat superior liability and a theory of negligent retention. ECF No. 53, at 5-7. Sharrer filed her original Complaint on July 23, 2018. ECF No. 1. After the court granted die United States' first motion to dismiss, ECF No. 52, Sharrer filed her Amended Complaint on April 8, 2019, ECF No. 53. Count One alleges assault and battery not only against Sova, but against the United States and USPS, through Sova as their agent and employee. Id. at 5. This claim is brought "under the FTCA or under the theory of respondeat superior or otherwise under Virginia law." Id. at 5-6. Count Two alleges negligent retention against the United States and USPS pursuant to the FTCA. Id. at 6. In Count Two, Sharrer claims that the United States and USPS knew or should have known through the use of ordinary care of Sova's propensities and negligently placed him in a position where he could have access to potential victims. Id.

         On April 24, the United States filed a motion to substitute the United States as a defendant for USPS. ECF No. 58. This motion was granted. ECF No. 64.


         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges a court's subject matter jurisdiction. Absent subject matter jurisdiction, a court must dismiss the action. Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 653 (4th Cir. 1999). Whether a plaintiff has standing to bring a cause of action "is generally associated with Civil Procedure Rule 12(b)(1) pertaining to subject matter jurisdiction." CGM. LLC v. BellSouth Telecomms., Inc., 664 F.3d 46, 52 (4th Cir. 2011). "That is because Article III gives federal courts jurisdiction only over cases and controversies,' and standing is 'an integral component of the case or controversy requirement.'" Id. (quoting Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006)). When a defendant raises substantive challenges to a court's jurisdiction under Rule 12(b)(1), the court need not accept the complaint's allegations as true and may consider facts outside the complaint to determine if it can properly exercise subject matter jurisdiction. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). At all times, "[t]he plaintiff has the burden of proving that subject matter jurisdiction exists." Evans, 166 F.3d at 647.

         Meanwhile, Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move for dismissal of a complaint for failure to state a claim upon which relief can be granted. To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must plead sufficient facts "to raise a right to relief above the speculative level" and "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). A plaintiff establishes "facial plausibility" by pleading "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). In ruling on a 12(b)(6) motion, the court must accept all well-pleaded allegations in the complaint as true and draw all reasonable factual inferences in the light most favorable to the plaintiff. Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678; see Wag More Dogs. LLC v. Cozart, 680 F.3d 359, 365 (4th Or. 2012) (holding the court "need not accept legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments") (internal quotation marks omitted).


         The changes Sharrer has made to her complaint do not alter the court's prior ruling. The only meaningful changes Sharrer has made are listed below:

(1) On page 5 of the Amended Complaint, Sharrer adds that a factual allegation that -"the United States and the United States Postal Service had a zero tolerance policy which prohibited Sova and other federal employees from sexually harassing and.. .assaulting and battering female employees of the federal well as other women with whom federal ...

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