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Webb-Beigel v. United States

United States District Court, D. Arizona

September 30, 2019

Kim Marie Webb-Beigel, Plaintiff,
v.
United States of America, Defendant.

          ORDER

          Honorable Jennifer G. Zipps United States District Judge.

         Plaintiff brings this action under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b)(1), asserting various tort and constitutional claims against the United States arising out of her security screening by Transportation Security Administration (TSA) agents at an airport checkpoint. Plaintiff alleges that the manner in which she was screened caused her physical pain and emotional distress and resulted in a muscle spasm that rendered her unable to walk from the checkpoint to the gate for her flight. (Doc. 1.) She seeks $500, 000 in damages.

         Pending before the Court is the United States' Motion to Dismiss the Complaint for lack of subject matter jurisdiction. (Doc. 9.) For the following reasons, the Court will deny the Motion to Dismiss Plaintiff's intentional tort and negligent infliction of emotional distress claims, but will grant the Motion to Dismiss the remaining constitutional claims.

         Factual Background

         Plaintiff alleges the following. On April 26, 2017, after having undergone neck surgery a few months prior, Plaintiff arrived at New York's John F. Kennedy Airport for her flight home to Tucson. She was 59 years old and was accompanied by her 72-year-old husband, who had recently undergone hip surgery. Due to Plaintiff's surgery and other injuries to her rotator cuff, doctors informed her she could not raise her arms and that she should limit her walking. Upon arriving at the airport, Plaintiff and her husband each requested a wheelchair, but there was only one available, so Plaintiff's husband used it while Plaintiff walked.

         Once Plaintiff and her husband arrived at the security checkpoint, TSA agents directed Plaintiff's husband through the standard scanner. Agent 1 directed Plaintiff to the full-body scanner, however, despite the fact that Plaintiff had informed Agent 1 that she could not raise her arms above her head, as required for the full-body scanner. A second agent nonetheless instructed Plaintiff to raise her arms, ignoring her earlier request to be exempt. Plaintiff attempted to follow Agent 2's orders, but experienced pain and was unable to complete the request. Agent 2 then escorted Plaintiff to an area near the security conveyor belt, where she was told a pat-down search would occur. Due to Plaintiff's increasing pain, she requested her purse, which had successfully gone through the x-ray machine, so that she could retrieve her pain medication. Agent 3, now participating in the pat-down, ignored Plaintiff's requests and ordered her to remove her boots, which Plaintiff explained she was unable to do without the assistance of a chair. Plaintiff once again asked for her purse and for the agents to assist her in taking off her shoes. Agent 3 refused to help Plaintiff and threatened to contact another TSA agent if Plaintiff did not comply. Plaintiff once again requested her pain medication, as well as her anti-anxiety medication.

         Worried that she may miss her flight, Plaintiff attempted to remove her shoes and almost fell in the process. Her husband told the agents she was not allowed to perform such actions, and, shortly thereafter, TSA supervisor John Lamb approached Plaintiff. She asked Lamb for her medication, but he also refused. Plaintiff voiced her frustration with Lamb, who responded by telling Plaintiff that she must “talk nice” to him. Plaintiff asked Lamb to proceed with the pat-down search as well as for her medication, but Lamb refused. Lamb instead called the airport police, who arrived but refused to arrest Plaintiff.

         Plaintiff was then escorted to a private room for a pat-down search. She requested her husband's presence, but the agents refused and three female agents “proceeded to conduct a prolonged pat-down search . . . and treated [Plaintiff] in a mocking fashion.” During the search, which lasted over 15 minutes, the agents rubbed Plaintiff's hip, despite knowing of its sensitivity due to a bone graft used for her neck surgery. As a result of the incident, Plaintiff's muscles spasmed, and she was unable to walk to her flight's gate, requiring her to use the wheelchair while her husband walked.

         On May 25, 2017, Plaintiff submitted a claim to TSA. The claim was denied by letter dated January 24, 2018, and Plaintiff filed this suit. Plaintiff asserts claims for assault, battery, false imprisonment, negligent infliction of emotional distress, [1] and constitutional violations arising out of the TSA agents' alleged conduct during Plaintiff's screening and pat-down search.

         Standard of Review

         Federal Rule of Civil Procedure 12(b)(1) allows litigants to seek the dismissal of an action from federal court for lack of subject matter jurisdiction. Tosco Corp. v. Communities for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001) (per curiam), overruled on other grounds by Hertz Corp. v. Friend, 559 U.S. 77 (2010). Federal courts are courts of limited jurisdiction, and can only hear those cases authorized by the Constitution and by statute-namely, cases involving diversity of citizenship, a federal question, or cases to which the United States is a party. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “It is to be presumed that a cause lies outside this limited jurisdiction . . . and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Id. (internal citations omitted). Accordingly, on a motion to dismiss for lack of subject- matter jurisdiction, the plaintiff generally must demonstrate that subject-matter jurisdiction exists to defeat dismissal. See A-Z Int'l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) (citing Stock W., Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989)).

         A party may bring a facial or factual attack on subject matter jurisdiction under Rule 12(b)(1). See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A “facial attack” accepts the truth of the complaint's allegations, but asserts that they are “insufficient on their face to invoke federal jurisdiction.” Id. A “factual attack” challenges the truth of the complaint's allegations, and asserts that federal jurisdiction does not exist in fact by introducing evidence outside the pleadings. Id. Because the United States does not substantially challenge the truth of the underlying facts in the complaint for purposes of this Motion, the United States' Motion to Dismiss is a facial attack, and the Court will therefore accept the facts asserted in the Complaint as true.

         Discussion

         Under the doctrine of sovereign immunity, “the United States may not be sued without its consent.” United States v. Mitchell, 463 U.S. 206, 212 (1983). The FTCA provides a limited waiver of the government's sovereign immunity for certain tort claims “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 “United States bears the burden of proving the ...


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