                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-3347
                                    ___________

Bobby L. Johnson,                       *
                                        *
            Plaintiff - Appellant,      *
                                        * Appeal from the United States
      v.                                * District Court for the District
                                        * of South Dakota.
United States of America,               *
                                        *
            Defendant - Appellee.       *
                                   ___________

                              Submitted: May 13, 2008
                                 Filed: July 25, 2008
                                  ___________

Before LOKEN, Chief Judge, BYE and COLLOTON, Circuit Judges.
                              ___________

BYE, Circuit Judge.

       Bobby L. Johnson brought an action under the Federal Tort Claims Act
(FTCA), 28 U.S.C. §§ 1346(b), 2671, against the United States alleging Bureau of
Indian Affairs (BIA) correctional officer Shobe Little Light (Little Light) and
Standing Rock Sioux Tribal Police Officer Gary Sandland committed the following
torts while arresting him in September 2003: (1) false and unlawful arrest; (2) arrest
without authority and beyond job description; (3) false imprisonment; (4) assault and
battery; (5) negligent exercise of force; (6) failure to secure timely medical care; (7)
deliberate indifference to medical needs; (8) cruel and unusual punishment; and (9)
violation of due process and equal protection of the laws. Pursuant to the
government's motion, the district court1 dismissed all of Johnson's claims for lack of
subject matter jurisdiction, see Fed. R. Civ. P. 12(b)(1). Johnson appeals the dismissal
of his tort claims arising from the conduct of Little Light.2 Because Little Light was
acting outside of the scope of his employment as a BIA correctional officer at the time
of the September 2003 incident, we affirm.

                                          I

       In September 2003, the BIA temporarily stationed Little Light, a correctional
officer from the Crow Agency detention facility in Montana, at the BIA's Standing
Rock Agency detention facility in Fort Yates, North Dakota. The BIA provided Little
Light temporary lodging in Mobridge, South Dakota, which is about an hour south of
Fort Yates. In addition, the BIA provided Little Light a government vehicle equipped
with a police radio.

      On September 23, 2003, while driving to Mobridge after his shift at the
detention facility had ended, Little Light observed Johnson operating his vehicle in
a dangerous manner, swerving from one side of the road to the other. After Johnson
stopped his vehicle on the side of the road, Little Light pulled over near him and
stopped to determine if he was in need of assistance. Johnson was outside of his
vehicle and advised Little Light he had a flat tire. Little Light determined Johnson
reeked of alcohol and was slurring his speech. Believing Johnson to be intoxicated
and a menace on the highway, Little Light, who was wearing his correctional officer




      1
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
      2
        Because Johnson appeals only the district court's dismissal of his tort claims
arising from Johnson's conduct, we do not discuss Johnson's constitutional claims or
his claims arising from Sandland's conduct.

                                          -2-
uniform, attempted to detain him. Johnson took off into a field and Little Light went
after him, initially on foot, and subsequently in his car.

       What transpired next is in dispute. According to Johnson, after Little Light
caught up to him, he was punched in the stomach, causing him to vomit. Little Light
identified himself as an off-duty police officer and advised Johnson he was going to
jail. He placed Johnson in the government vehicle and drove back to where Johnson's
vehicle was parked. As he was moving Johnson from the government vehicle,
Johnson asked him why he was arresting him and, in response, Little Light threw
Johnson to the ground and began beating him. At some point, Standing Rock Tribal
Police Officer Gary Sandland arrived upon the scene and Johnson claims Sandland
stated to Little Light: "[H]e has had enough; just leave him alone." Appellant's Br. at
4.

       The government contends Johnson gave up and approached Little Light, at
which point Little Light handcuffed him, placed him in the back of the government
vehicle, and fastened his seat belt. As Little Light was driving back to where
Johnson's vehicle was located, Johnson jumped out of the car and began running back
towards the river. While running, Johnson lost his footing and fell face first. Little
Light noticed Johnson was moving around so he kept Johnson handcuffed and,
additionally, tied his shoelaces together. Thereafter Little Light made his way back
to the highway and flagged down a bus. The bus driver called for help, and some time
later an ambulance crew and Officer Sandland arrived.

       Following the incident, Johnson was admitted to the hospital with a minor
clavicle fracture, closed head injury, and multiple abrasions and cuts around his eyes,
head, neck, and trunk. His blood alcohol level was .264. Johnson remained a patient
in the hospital for about six weeks, and he subsequently required speech therapy.




                                         -3-
       Subsequently, Johnson brought an action under the FTCA against the United
States asserting various tort and constitutional claims arising from the conduct of
Little Light and Sandland during the September 2003 incident. The government
moved to dismiss Johnson's complaint in its entirety arguing: (1) Johnson could not
establish the threshold requirements of jurisdiction under the FTCA; and (2) even if
the district court did have subject matter jurisdiction over Johnson's claims, Johnson's
complaint failed to state a claim on which relief could be granted. Agreeing with the
government that Johnson could not establish the FTCA's jurisdictional requirements,
the district court dismissed Johnson's complaint under Fed. R. Civ. P. 12(b)(1).

       With respect to Johnson's tort claims arising from Little Light's conduct, first
the district court ruled the FTCA's intentional torts exception, which bars suits against
the government for claims arising out of assault unless the federal employee was an
investigative or law enforcement officer, see 28 U.S.C. § 2680(h), barred Johnson's
claims arising out of Little Light's alleged assault (false arrest, arrest without
authority, assault and battery, false imprisonment, and failure to secure timely medical
care). Specifically, the district court concluded Little Light was not an investigative
or law enforcement officer. Second, the district court ruled it lacked jurisdiction over
Johnson's tort claims arising out of Little Light's alleged negligence because Johnson
failed to establish Little Light was acting within the scope of his employment at the
time he allegedly committed these torts.

       On appeal, Johnson makes two arguments for reversal. First, he argues he has
adequately proven jurisdiction under the FTCA for his tort claims arising from both
the negligent and intentional acts of Little Light and, therefore, the district court erred
in granting the government's Rule 12(b)(1) motion to dismiss. Second, he argues the
district court erred in ruling on the government's 12(b)(1) motion without first
allowing him the opportunity to conduct discovery and without holding an evidentiary
hearing.



                                           -4-
                                           II

       Turning to the merits, Johnson argues the district court wrongly concluded
Little Light's alleged acts were beyond the scope of his employment. Second, he
argues the district court erred in ruling the intentional torts exception to the FTCA
bars his claims arising out of Little Light's alleged assault.

                                           A

       A district court has the authority to dismiss an action for lack of subject matter
jurisdiction on any one of three separate bases: "(1) the complaint alone; (2) the
complaint supplemented by undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the court's resolution of disputed
facts." Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). In this case, the
district court dismissed Johnson's action on the second basis: the complaint
supplemented by undisputed facts. Consequently, we review the record to determine
whether those facts are "indeed undisputed," Osborn v. United States, 918 F.2d 724,
730 (8th Cir. 1990) (citations omitted), and, if they are, we review de novo the district
court's application of the law to those facts, Appley v. United States, 164 F.3d 1164,
1170 (8th Cir. 1999).

                                           B

      The FTCA provides a limited waiver of sovereign immunity, allowing the
United States to be held liable for torts committed by "any employee of the
Government while acting within the scope of his office or employment, 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."
28 U.S.C. § 1346(b); see United States v. Olson, 546 U.S. 43, 44-45 (2005).



                                          -5-
       A threshold requirement to establish jurisdiction under the FTCA is that the
federal employee must have been acting within the scope of his employment when the
tort was committed. See Primeaux v. United States, 181 F.3d 876, 878 (8th Cir. 1999)
("In determining the extent of the government's FTCA liability, 'scope of employment'
sets the line.") (quoting Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 423 (1995)).
Scope of employment questions are governed by the law of the state where the alleged
tortious acts took place, see St. John v. United States, 240 F.3d 671, 676 (8th Cir.
2001) (citing Brown v. Armstrong, 949 F.2d 1007, 1012 n.7 (8th Cir. 1991), which
is South Dakota in this case. "However, FTCA claims are strictly limited to a scope
of employment analysis, regardless of state law doctrines of respondeat superior and
apparent authority." Id. (citing Primeaux, 181 F.3d at 878).

       Under South Dakota law, the scope of employment analysis is based on a
foreseeability test, which "evaluates whether a sufficient nexus exists 'between the
agent's employment and the activity which actually caused the injury.'" Id. (quoting
Leafgreen v. Am. Family Mut. Ins. Co., 393 N.W.2d 275, 280 (S.D. 1986)). In
determining whether an employee's act is within the scope of employment a court
considers a number of factors, including: (1) whether the act is commonly done in the
course of business; (2) the time, place, and purpose of the act; (3) whether the act is
within the enterprise of the master; the similarity of the act done to the act authorized;
(4) whether the means of doing harm has been furnished by the master; and (5) the
extent of departure from the normal method of accomplishing an authorized result.
See Deuchar v. Foland Ranch, Inc., 410 N.W.2d 177, 180, n.2 (S.D. 1987) (quoting
Restatement (Second) of Agency § 229 (1958)).

       In applying the foreseeability analysis to the alleged actions of Little Light, the
district court correctly concluded such actions were not within the scope of his
employment. First, it cannot be said Little Light's actions in detaining and arresting
Johnson were performed in connection with, or were incidental to Little Light's
responsibilities as a BIA corrections officer. The BIA's corrections program is distinct

                                           -6-
from the BIA's law enforcement program. Correctional officers supervise inmates and
maintain order within the BIA's detention facilities. To carry out this function,
correctional officers have limited authority to use restraints, such as handcuffs, when
transporting inmates to and from a facility, and limited authority to conduct
inspections of inmates's cells and other areas of a facility. However, they have no
authority to make arrests. See Addendum, p. 10 [Declaration of Rivera ¶4]
(explaining it is "the BIA's policy not to authorize its corrections officers to make
arrests."). Second, the incident took place on a highway, far removed from the
detention facility where Little Light had authority to act. Third, the incident took
place after his work-shift had ended and while he was on his way to his temporary
abode. These factors, taken together, demonstrate his actions in detaining Johnson
were outside the scope of his employment.

      Johnson argues because the jurisdictional question is "intertwined" with the
merits of his lawsuit, the district court could not determine this issue on a 12(b)(1)
motion. While Johnson is correct that generally, whether an employee's actions are
within the scope of their employment is a question of fact, we fail to see how the
factual nature of this inquiry somehow renders the jurisdictional issue "so bound up
with the merits that a full trial on the merits" is necessary to resolve the issue.
Crawford v. United States, 796 F.2d 924, 929 (7th Cir. 1996). Indeed the issue
whether Little Light's conduct was within the scope of his employment is unrelated
to whether Little Light's conduct was negligent, which is the most important issue on
the merits.

       In this case, it is clear at the time of the September 2003 incident Little Light
was not acting within the scope of his employment as a correctional officer.
Therefore, there was nothing improper in the district court resolving the scope of
employment question in ruling on the government's 12(b)(1) motion. Osborn, 918
F.2d at 730 ("[T]he existence of disputed material facts will not preclude the trial court
from evaluating for itself the merits of jurisdictional claims.") (citations omitted).

                                           -7-
       Accordingly, we conclude Johnson has failed to establish Little Light was
acting within the scope of his employment– a threshold requirement to establish
jurisdiction under the FTCA. Because our conclusion disposes of all of Johnson's
claims arising out of Little Light's conduct, we do not address Johnson's additional
contention that the district court wrongly concluded the intentional torts exception
applied to certain of his claims.

                                           III

      Johnson also seeks reversal of the district court's dismissal on procedural
grounds. Specifically, Johnson contends the district court erred in ruling on the
government's 12(b)(1) motion without first allowing discovery or conducting an
evidentiary hearing. A Rule 12(b)(1) motion challenges whether the district court has
subject matter jurisdiction to hear the matter. Because "there is no statutory procedure
upon an issue of jurisdiction, the mode of its determination is left to the trial court."
Land v. Dollar, 330 U.S. 731, 735 n.4 (1947). Trial courts have "wide discretion to
allow affidavits, other documents, and a limited evidentiary hearing to resolve
disputed jurisdictional facts under Rule 12(b)(1)." Holt v. United States, 46 F.3d
1000, 1003 (10th Cir. 1995). Thus, we review the denial of an evidentiary hearing
and the denial of a request for discovery utilizing an abuse of discretion standard.
United States v. Gines, 964 F.2d 972, 977 (10th Cir. 1992).

       Turning first to the issue whether an evidentiary hearing was necessary, "[a]
court can evaluate its jurisdiction without an evidentiary hearing 'so long as the court
has afforded [the parties] notice and a fair opportunity to be heard.'" McCann v.
Newman Irrevocable Trust, 458 F.3d 281, 290 (3d Cir. 2006) (quoting Tanzymore
v. Bethlehem Steel Corp., 457 F.2d 1320, 1323-24 (3d Cir. 1972)). See also Zappia
Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000).
Here, the parties had ample opportunity to be heard through affidavits and briefs.
Neither party requested an evidentiary hearing, and Johnson did not object to the

                                          -8-
absence of one until after the district court dismissed his complaint. McCann, 458
F.3d at 291 ("A key consideration in determining whether a hearing is required is
whether either party requested one."). Under these circumstances, we cannot say the
district court's failure to hold an evidentiary hearing before ruling on the government's
12(b)(1) motion was an abuse of discretion.

       Nor do we believe the court abused its discretion in failing to afford Johnson
additional discovery. Johnson contends certain statements in his declaration
established a basis for additional discovery. Specifically, Johnson points to his
statement alleging the FBI has photographs of him from the September 2003 incident,
which it refuses to disclose. According to Johnson, this statement establishes an
adequate basis to allow discovery on the jurisdictional issues. We disagree.

       Courts look to decisions under Rule 56 for guidance in determining whether to
allow discovery on jurisdictional facts. See Gualandi v. Adams, 385 F.3d 236, 244
(2d Cir. 2004) ("Although a motion to dismiss for lack of jurisdiction cannot be
converted into a Rule 56 motion, a court may nonetheless look to Rule 56(f) for
guidance in considering the need for discovery on jurisdictional facts.") (citing Kamen
v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986); Exch. Nat'l Bank v.
Touche Ross & Co., 544 F.2d 1126, 1131 (2d Cir. 1976)). To request discovery under
Rule 56(f), a party must file an affidavit describing: (1) what facts are sought and how
they are to be obtained; (2) how these facts are reasonably expected to raise a genuine
issue of material fact; (3) what efforts the affiant has made to obtain them; and (4)
why the affiant's efforts were unsuccessful. Id. (citing Hudson River Sloop
Clearwater, Inc. v. Dep't of the Navy, 891 F.2d 414, 422 (2d Cir. 1989)).

      While the statement in Johnson's declaration arguably establishes the facts
Johnson is seeking and why his efforts to obtain those facts were unsuccessful,
Johnson does not explain how these photographs are reasonably expected to raise a
genuine issue of material fact relevant to whether the district court had subject matter

                                          -9-
jurisdiction under the FTCA. Specifically, these pictures bear no relevance to the
jurisdictional issues decided by the district court in ruling on the government's
12(b)(1) motion. Accordingly, the district court did not abuse its discretion in denying
Johnson the opportunity to conduct discovery.

                                           IV

       Accordingly, based on our determination Little Light was not acting within the
scope of his employment during the September 2003 incident, we affirm the district
court's order dismissing for lack of subject matter jurisdiction Johnson's claims arising
from Little Light's conduct.
                        ______________________________




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