United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM OPINION AND ORDER
N. Stivers, Judge United States District Court
matter comes before the Court on Defendant U.S. Department of
Transportation’s Motion to Dismiss (DN 23), Defendant
Kentucky Transportation Cabinet’s Motion to Dismiss (DN
28), Plaintiff’s Motions for Summary Judgment (DN 24,
33, 34), and Defendant U.S. Department of
Transportation’s Motion to Strike Plaintiff’s
Motions for Summary Judgment (DN 35). For the following
reasons, Defendants’ Motions to Dismiss are
GRANTED, Defendant’s Motion to Strike
is DENIED AS MOOT, and Plaintiff’s Motions for Summary
Judgment are DENIED AS MOOT.
Peppy Martin (“Martin”), appearing pro
se, brings this action against the U.S. Department of
Transportation (“USDOT”) and Kentucky
Transportation Cabinet (“KYTC”) for alleged
damages incurred as a result of the design and construction
of the I-65 widening project that occurred adjacent to
Martin’s property. (See Compl., DN 1-2).
Martin alleges that the project has damaged her
“health, wealth, and welfare . . . loss of privacy, and
loss of future income” and seeks $100 million in
damages. (Compl. 13). USDOT and KYTC have moved to dismiss
the Complaint arguing that this Court lacks subject matter
jurisdiction and that the Complaint fails to state a claim.
(Def.’s Mot. Dismiss, DN 23; Def.’s Mot. Dismiss,
DN 28). USDOT has also moved to strike Martin’s Motion
for Summary Judgment from the record. (Def.’s Mot.
Strike, DN 35). These matters are ripe for adjudication.
USDOT’s Motion to Dismiss
moves pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) to
dismiss all claims against it. (See Def.’s
Mem. Supp. Mot. Dismiss 2-9, DN 23-1 [hereinafter
USDOT’s Mot.]). In order to survive a motion to dismiss
alleging a lack of subject matter jurisdiction under Fed. R.
Civ. P. 12(b)(1), the plaintiff bears the burden of proving
subject matter jurisdiction. See Adams v. Bain, 697
F.2d 1213, 1219 (4th Cir. 1982). The Court must
“construe the Complaint liberally and treat all
well-pleaded facts as true, according the plaintiff the
benefit of all reasonable inferences.” Murphy v.
United States, 45 F.3d 520, 522 (1st Cir. 1995)
(citation omitted). “‘It is axiomatic that the
United States may not be sued without its consent and that
the existence of consent is a prerequisite for
jurisdiction.’” Munaco v. United States,
522 F.3d 651, 652 (6th Cir. 2008) (internal quotation marks
omitted) (quoting United States v. Mitchell, 463
U.S. 206, 212 (1983)).
sovereign immunity of the United States extends to federal
agencies and federal officers in their official capacities.
Muniz-Muniz v. U.S. Border Patrol, 741 F.3d 668, 671
(6th Cir. 2013). Without a “clear relinquishment”
of sovereign immunity, a court has no jurisdiction overt tort
actions against the United States. Dalehite v. United
States, 346 U.S. 15, 31 (1953). Among the limited
waivers of the government’s sovereign immunity is the
Federal Tort Claims Act (“FTCA”), which provides
a remedy against the United States for the torts of its
officers and employees. United States v. Orleans,
425 U.S. 807, 813 (1976). The FTCA waives the
government’s sovereign immunity for claims brought
against it “for injury or loss of property, or personal
injury or death 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.
alleged various state tort claims may not be maintained
against USDOT. Aside from the fact that Martin has neither
brought her state tort claims under the FTCA nor named the
United States as a defendant, an actionable FTCA claim must
be for injury caused by the negligent or wrongful conduct of
a federal employee. FDIC v. Meyer, 510 U.S. 471, 477
(1994). The alleged negligent conduct of which Martin
complains, however, was committed by employees either of the
state or contracted by the state during the I-65 construction
project. (See Compl.). The only link Martin alleges
between the USDOT and the latter entities is that USDOT
provides federal funds to those entities, and thus should
have provided more oversight. (Pl.’s Resp. Def.’s
Mot. Dismiss 1-2, DN 26 [hereinafter Pl.’s Resp.
USDOT’s Mot.]). But “the existence of federal
funding, standing alone, does not establish an
individual’s status as a federal employee and hence the
government’s liability under the [FTCA] . . . .”
Haugen v. United States, 492 F. Supp. 398, 401
(E.D.N.Y. 1980), aff’d, 646 F.2d 560 (2d Cir.
1980) (citations omitted); see Orleans, 425 U.S. at
813 (“The Tort Claims Act was never intended, and has
not been construed by this Court, to reach employees or
agents of all federally funded programs that confer benefits
on people.”). Because Martin has alleged no more than a
funding relationship between the USDOT and the state
employees whose conduct she challenges, she could not have
stated a valid FTCA claim against the USDOT even if she had
brought one. Accordingly, the Court concludes that USDOT is
immune from suit.
to USDOT’s argument that the claims asserted against it
should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6), a
complaint is subject to dismissal if it “fail[s] to
state a claim upon which relief can be granted.” Fed.
R. Civ. P. 12(b)(6). When considering a motion to dismiss
under Rule 12(b)(6), the Court must construe the complaint in
a light most favorable to the nonmoving party, accepting
“as true all factual allegations and permissible
inferences therein. Gazette v. City of Pontiac, 41
F.3d 1061, 1064 (6th Cir. 1994) (citing Westlake v.
Lucas, 537 F.2d 857, 858 (6th Cir. 1976)). The nonmoving
party, however, must plead more than bare legal conclusions.
Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716,
726 (6th Cir. 1996). In order to survive a Rule 12(b)(6)
motion, “[the] complaint must contain (1) ‘enough
facts to state a claim to relief that is plausible,’
(2) more than ‘a formulaic recitation of a cause of
action’s elements,’ and (3) allegations that
suggest a ‘right to relief above a speculative
level.’” Tackett v. M & G Polymers, USA,
LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While
the pleadings do not need to contain detailed factual
allegations, the nonmoving party must allege facts that when
“accepted as true . . . ‘state a claim to relief
that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009).
contends that although the Complaint names USDOT as a
defendant, she makes no mention of any legal wrongdoing
specifically by USDOT. (USDOT’s Mot. 4-5). Her
allegations involving both Defendants include the following:
• “Defendants have, without her knowledge or
express permission, effectively obviated her visibility on
I-65 by creating a huge and expensive setback, some 15 feet
thick and 50 feet deep.” (Compl. 10).
• “[t]he 3 Defendants have made a sheer mess not
only of Plaintiffs frontage which has value for its
visibility but also of the medians at the Bonnieville exit,
particularly on the northbound side.” (Compl. 11).
• “Her land has been defaced, and its commercial
development is hurt by the lack of vision of