The opinion of the court was delivered by: Michael J. Reagan United States District Judge
Before the Court is the defendant United States of America's motion to dismiss Count 1 of the First Amended Complaint (Doc. 56.).*fn1 The government seeks dismissal of Count 1 for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim under Rule 12(b)(6). Plaintiff filed a response (Doc. 63), to which no reply was filed. As such, the motion is fully briefed and the Court now rules as follows.
The purpose of a motion to dismiss is not to decide the merits of the case. A Rule 12(b)(1) motion tests whether the Court has subject matter jurisdiction, (Long v. Shorebank Development Corp., 182 F.3d 548, 554 (7th Cir.1999)), while a Rule 12(b)(6) motion tests the sufficiency of the complaint (Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.1990)). In reviewing a motion to dismiss under either rule, the Court takes as true all factual allegations in plaintiff's First Amended Complaint (Doc. 55), and draws all reasonable inferences in plaintiff's favor. Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 7th Cir. 2007).
Rule 12(b)(1) and Subject-Matter Jurisdiction
Federal Rule of Civil Procedure 12(b)(1) is the mechanism by which subject-matter is challenged. The plaintiff bears the burden of proving that the jurisdictional requirements have been met. United Phosphorus, Ltd. v. Angus Chemical Co., 322 F.3d 942, 946 (7th Cir. 2003).
Count 1 of plaintiff's Complaint is captioned: "FEDERAL TORT CLAIMS ACT 28 U.S.C. § 2671, et seq. (Against Defendant United States of America)" (Doc. 55, p. 8.). In Count 1, plaintiff alleges that the United States of America-through individual defendants George Sample, Jon Reynolds, Marvin Thompson and R.L. (Cruse) Reynolds, acting within the scope of their employment as employees, servants and/or agents of the Bureau of Prisons-subjected plaintiff to "malicious violence and sexual assault," tortured, beat and abused plaintiff, "violating Plaintiff's Eighth Amendment rights under the Constitution to be free from cruel and unusual punishment" (Doc. 55, pp. 8-9). Numerous specific tortious acts are described (Doc. 55, pp. 3--8).
It is well settled that a suit against federal officers in their official capacities is a suit against the United States. Del Raine v. Carlson, 826 F.2d 698, 703 (7th Cir.1987). The Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671, et seq., is the exclusive remedy for certain common-law torts committed by federal employees acting within the scope of their employment.*fn2
28 U.S.C. § 2679(b)(1). So-called "official capacity" constitutional claims against individual federal employees are really claims against the United States and must be dismissed because the United States cannot be sued for constitutional torts absent a waiver. F.D.I.C. v. Meyer, 510 U.S. 471, 485-486 (1994); see also United States Postal Serv. v. Flamingo Industries (USA) Ltd., 540 U.S. 736, 743 (2004). Instead, constitutional tort claims are brought under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). More to the point, district courts have exclusive jurisdiction over any civil action against the United States for money damages or personal injury caused by the negligent or wrongful act or omission of a government employee acting within the scope of his or her employment. 28 U.S.C. § 1346(b)(1).
The government does not dispute that the Court has jurisdiction under Section 1346(b)(1) over FTCA claims (Doc. 56, p. 4 n.1). Rather, by focusing on the specific reference to the Eighth Amendment and other related language contained in Count 1, the government characterizes Count 1 as alleging a constitutional tort. Citing F.D.I.C. v. Meyer, 510 U.S. 471, 479, 485-486 (1994), the government asserts that the Court lacks subject-matter jurisdiction because constitutional claims cannot be brought against the United States under the FTCA. The government also takes an alternate tact in a footnote (Doc. 56, p. 4 n. 1). The government observes that in Sobitan v. Glud, 589 F.3d 379, 388 (7th Cir. 2009), the Court of Appeals for the Seventh Circuit read F.D.I.C. v. Meyer, 510 U.S. at 479, as holding that the scope of jurisdiction in 28 U.S.C. § 1346 is "co-extensive" with the United States's waiver of sovereign immunity under the FTCA. Thus, the government implies that Rule 12(b)(1) can be used to delve deeper than the face of the complaint.
Like the government, plaintiff muddles his arguments regarding subject-matter jurisdiction and the adequacy of the claim. Plaintiff generally counters that, under the notice pleading standard of Rule 8(a), Count 1 adequately states an FTCA claim for assault and battery. Plaintiff does not specifically address the use of language relating to, and the specific reference to the Eighth Amendment contained in Count 1, but he argues in the alternative for leave to amend the First Amended Complaint by interlineation to cure any pleading error. Plaintiff also does not specifically address the government's procedural argument about the scope of Rule 12(b)(1).
Insofar as the government intertwines subject-matter jurisdiction and waiver of sovereign immunity, the Court of Appeals for the Seventh Circuit adheres to the minority position that the issue of waiver of sovereign immunity under the FTCA should not be characterized as jurisdictional. As the Court of Appeals for the Seventh Circuit stated most recently in Williams v. Fleming, 597 F.3d 820, 823-824 (7th Cir. 2010), the sovereign immunity waiver exceptions in 28 U.S.C. § 2680 are "mandatory rules of decision," but they do not withdraw subject-matter jurisdiction. Williams makes clear that dismissal of an FTCA action based on one of the exceptions to the waiver of sovereign immunity is a decision on the merits of the case, rather than on subject-matter jurisdiction.*fn3 Id. at 823.
The government's reliance on F.D.I.C. v. Meyer and Sobitan v. Glud is misplaced.
In F.D.I.C. v. Meyer, the Supreme Court, in dicta, addressed an attempt to have the jurisdictional grant in 28 U.S.C. § 1346(b) read broadly and the government's waiver of immunity in the FTCA read narrowly. 510 U.S. at 479. The Supreme Court declined to "parse" or "uncouple" the statutes. In Sobitan v. Glud, 589 F.3d 379, 388 (7th Cir. 2009), the Court of Appeals for the Seventh Circuit intermingled the FTCA waiver exceptions and resulting claim preclusion with an analysis of the adequacy of a Westfall Act claim-a Rule 12(b)(6) analysis. See Sobitan v. Glud, No. ...