UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBlA F I L E D
RORY CAVANAUGH WILSON, _|UN 1 0 2014
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v. Civil Case No. 13-00506 (RJL)

U.S. PARK POLICE, et al.,

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Defendants.
MEMORA DUM OP\INION
(June  2014) [Dkr_ ##10, 11, 141
Plaintiff Rory Cavanaugh Wilson ("plaintiff") filed this action on April 15, 2013
against the United States Park Police, the Department of the Interior, four named Park
Police Off`icers in their individual and official capacities, and two unnamed Park Police
Ofticers in their individual and official capacities, seeking damages pursuant to the
Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. ("FTCA"), and Bz`vens v. Sz`x Unknown
Na)nea’/lgents ofz‘he Fea’. Bureau ofNarcotics, 403 U.S. 388 (l97l). See Cornplaint
("Cornpl.") at M 3-4 [Dkl. #l]. Now before the Court are plaintil`l`s Motion for Default
Judgment [Dkt. #10], defendants’ Motion to Substitute the United States as the Party
Defendant [Dkt. #l l], and defendants’ Motion for Partial Dismissal of Complaint [Dl<t.
#14]. Upon consideration of the parties’ pleadings, the entire record in this case, and
relevant law, the Court GRANTS defendants’ Motion to Substitute the United States as

the Party Defendant, GRANTS defendants’ Motion for Partial Dismissal of Complaint,

and DENIES plaintiff’ s Motion for Default Judgment as moot.
BACKGROUND

On June l, 2011, plaintiff was sitting at the Navy Memorial in Washington, D.C.,
when U.S. Park Police Officers Hayes and Swope approached him and told him he
needed to move along. See Compl. at ‘l[ 6. As plaintiff was leaving the area, the officers
allegedly tackled him to the ground and handcuffed him. See z`d. While handcuffed on
the ground, plaintiff alleges that Park Police Officer Fennely shot him several times with
his taser, causing plaintiffs body to go limp. See ia’. The officers then arrested plaintiff
and took him into custody.’ See z`d. Plaintift"s collar bone was broken during the
altercation. See z'd.

On April 15, 2013, plaintiff filed a two-count complaint alleging tortious conduct
and violation of his civil rights, pursuant to the FTCA and Bz`vens, respectfully. See
Compl. at W 3-4. A summons was served on the Office of the United States Attorney on
May 28, 2013. See May 28, 2013 Proof of Service at l [Dkt. #3]. On June 7, 2013,
summonses for defendants Fennely, Hayes, Swope, and Chambers were served on
"Captain Michael Libby, who is designated by law to accept service of process on behalf
of [the] United States Park Police." See June 7, 2013 Proofof Service at 3-6 [Dkt. #3].

On November 12, 2013, case management orders were served on "Barbara Banks,

1 Plaintiff was later acquitted at trial of all charges against him stemming from the incident. See
Compl. at 11 7.

Supervisor, Park Police Data," for the four named defendants. See Nov. l2, 2013 Proof
ofService [Dkt. #9].

ANALYSIS
I. Motion to Substitute United States as the Party Defendant

On January 29, 2014, defendants moved to substitute the United States as the party
defendant for all FTCA claims brought against the named defendants in their individual
capacities. See Motion to Substitute the United States as the Party Defendant at l.
Attached to defendants’ motion was a certification by the Office of the United States
Attorney for the District of Columbia_commonly referred to as a Westfall
Certificationl_stating that defendants Hayes, Swope, Fennely, and Chambers were
employees of the Government, and that they were acting within the scope of their
employment at all times during the events that allegedly gave rise to plaintiff s claims.
See Certification [Dkt. #l l-l].

The FTCA is the "exclusive remedy for a tort committed by a federal official or
employee within the scope of his employment." Alz` v. Rumsfe]d, 649 F.3d 762, 768
(D.C. Cir. 201 l). The FTCA provides that:

The remedy against the United States . . . for injury or loss of
property, or personal injury or death arising or resulting from

the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or

3 The Westfall Act provides that the Attorney General may certify that a government officer or
employee "was acting within the scope of his office or employment at the time of the incident out
ofwhich the claim arose." 28 U.S.C. § 2679(d)(l).

3

employment is exclusive of any other civil action or

proceeding for money damages by reason of the same subject

matter against the employee whose act or omission gave rise

to the claim.
28 U.S.C. § 2679(b)(1). Government employees sued in their individual capacities for
acts committed within the scope of their official duties are not proper defendants to any
claim brought under the FTCA. See Harbury v. Hayden, 522 F.3d 413, 416 (D.C. Cir.
2008) ("Under the FTCA, plaintiffs may sue the United States in federal court for
state-law torts committed by government employees within the scope of their employment
. . . [b]ut the FTCA does not create a statutory cause of action against individual
govemment employees,"); Voz`d-El v. O’Brz'en, 811 F. Supp. 2d 255, 259 (D.D.C. 201 1).

Once a Westfall Certification is submitted, "any civil action or proceeding

commenced upon such claim in a United States district court shall be deemed an action
against the United States . . . and the United States shall be substituted as the party
defendant." 28 U.S,C. § 2679(d)(1) (emphasis added). Such a certification has been
made here. Accordingly, this Court must GRANT defendant’s Motion to Substitute the
United States as the Party Defendant as to plaintiffs claims brought under the FTCA.
See Compl. at 11 12. The United States is thus the sole remaining defendant with respect
to plaintiffs FTCA claims.
II. Motion for Partial Dismissal of Complaint

Because the United States is substituted as the only proper defendant for the

plaintiffs FTCA claims, the only claims remaining against the individually named

defendants are those brought pursuant to Bz`vens. See Compl. at 11 13. On January 31,
2014, defendants moved for dismissal of the complaint as to all individually named
defendants. Defendants argue that dismissal is warranted on numerous grounds,
including pursuant to Federal Rules of Civil Procedure 4(m) and l2(b)(1), (2), (4), (5),
(6:). See Motion for Partial Dismissal of Complaint at 1. As the parties’ pleadings raise
questions about the sufficiency of service in this case, a discussion of whether service of
process was properly affected is required.

The plaintiff bears the burden of establishing that he has properly effectuated
service on all defendants named in the complaint. See Lz`ght v. Wolf 816 F.2d 746, 751
(D.C. Cir. 1987). Effeetive personal service of process on a defendant, or waiver
thereof, is a "prerequisite to the Court’s exercise ofpersonal jurisdiction over a
defendant." McAlister v. Poz‘ter, 843 F. Supp. 2d 117, 119 (D.D.C. 2012) (citing Murphy
Bros. Inc. v. Mz`chettz` Pipe Strz`ngz`ng Inc,, 526 U.S. 344, 350 (1999)). When a defendant
challenges the sufficiency of service, the plaintiff must show that "the procedure
employed satisfied the requirements of the relevant portions of Rule 4 and any other
applicable provision oflaw." See Lighl, 816 F.2d at 751 (quoting C. Wright & A. Miller,
Federal Practice and Procedure § 1083, at 334 (1969)). 1f the plaintiff fails to meet this
burden, the court may dismiss the complaint for ineffective service of process. See Fed.
R. Civ. P. l2(b)(5); Sz`mpkins v. Disf. ofColumbz`a Gov’z‘, 108 F.3d 366, 368-69 (D.C. Cir.

1997). 1ndeed, Rule 4 states that the court must dismiss an action when the plaintiff fails

to serve the defendant within 120 days the complaint being filed. See Fed. R. Civ. P.
4(m).

When an officer or employee of the government is sued in his or her individual
capacity, as is the case here, personal service on the officer or employee is required. See
Fed. R. Civ. P. 4(i)(3). Personal service can be affected by doing any of the following:

(A) delivering a copy of the summons and of the complaint to
the individual personally; (B) leaving a copy of each at the
individual’s dwelling or usual place of abode with someone of
suitable age and discretion who resides there; or (C)
delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e). Unfortunately for the plaintiff, none of these methods of service
were ever completed.

The summonses served by the plaintiff s process server on June 7, 2l03-and filed
with the Court on June 23, 2013-clearly state that they were served on "Captain Michael
Libby, who is designated by law to accept service of process on behalf of [ the ] United
States Park Polz'ce." See June 7, 2013 Proof of Service at 3-6 (emphasis added).
Nowhere does plaintiff allege that Captain Libby is "an agent authorized by appointment
or by law to receive service of process" on behalf of Officers Fennely, Hayes, Swope, and
Chambers in their individual capacities. See Fed. R. Civ. P. 4(e). The summons served
on Barbara Banks on November 12, 2013 suffers from the same deficiency; plaintiff has

made no claim, nor shown any evidence, that Ms. Banks was an agent authorized to

receive service of process on behalf of the defendants in their individual capacities.

As of January 31, 2014, more than nine months since plaintiff filed the complaint
in this action, plaintiff has submitted no evidence that he has attempted to affect personal
service on the individually named defendants. Beeause plaintiff failed to personally
serve the individual defendants within 120 days of filing the complaint, the Court must
dismiss the Bz`vens claims as to Officers Fennely, Hayes, Swope, and Chambers in their
individual capacities.3

CONCLUSION

Thus, for all the foregoing reasons, the Court GRANTS defendants’ Motion to
Substitute the United States as the Party Defendant [Dkt. #11], GRANTS defendants’
Motion for Partial Dismissal of Complaint [Dkt. #14], and DENIES plaintiffs Motion for
Default Judgment [Dkt. #10] as moot. Accordingly, the only remaining claim in this
action is contained in Count 1 of the complaint, brought against the United States of
America pursuant to the Federal Tort Claims Act. An Order consistent with this decision
accompanies this l\/lemorandum Opinion. n l

,<;iw.@mt /

RICHARD\J.\LlEoN
United States District Judge

3 Beeause 1 have determined that plaintiff failed to affect personal service on the individual
defendants, an in-depth discussion of plaintiffs Motion for Default Judgment is unnecessary, as
it is rendered moot by this Memorandum Opinion and the accompanying Order.

7

