United States District Court, E.D. Kentucky, Central Division, Lexington
ALI SAWAF, Individually and as Administrator of the Estate of Mark S. Sawaf, Deceased, Plaintiff,
LEXINGTON-FAYETTE UBRAN COUNTY GOVERNMENT, et al., Defendants.
MEMORANDUM OPINION AND ORDER
M. HOOD, SENIOR U.S. DISTRICT JUDGE.
matter is before the Court upon Defendants' Motions to
Dismiss [DE 10 and 12]. Plaintiff has filed a Response [DE
17], and Defendants have filed Replies [DE 18 and 19] in
further support of their Motions. For the reasons that
follow, Defendants' Motions will be granted.
avers that, on August 11, 2016, officers from Lexington
Fayette County Urban Government's (LFUCG) Fire Department
and Police Department, Brad Dobrzynski, Matt Greathouse, and
Clayton Roberts, participated in an Bureau of Alcohol,
Tobacco, Firearms, and Explosives (“ATF”)
operation in Harlan County. Captain Dobrzynski was assigned
to the Lexington Hazardous Devices Unit that participated in
the operation as part of the ATF Task Force. (See
Compl., DE 1, ¶¶ 17-21). During the operation
around 6:45 pm, Mark S. Sawaf was being escorted up a
mountain. (See Compl., DE 1, ¶ 75). Sawaf's
hands were cuffed in the front, and those cuffs were attached
to a belly chain that was secured around his waist throughout
the entire operation. (See Compl., DE 1, ¶ 31).
being escorted up the mountain, Dobrynski has claimed that
Sawaf attempted to grab the holstered weapon of Defendant
Matt Greathouse. (See Compl., DE 1, ¶ 75).
Dobrzynski then observed Defendant Greathouse attempting to
retain his weapon. (See Compl., DE 1, ¶ 76). It
was then that an altercation ensued and ATF Agent Todd
Tremain joined in to assist by delivering strikes to Sawaf.
During this altercation, Defendant Greathouse yelled for
Captain Dobrzynski to “shoot” Sawaf.
(See Compl., DE 1, ¶ 77). At that point,
Captain Dobrzynski shot Sawaf in the head. (See
Compl., DE 1, ¶78). Moments after the shooting, ATF
Medic Bobbich arrived and began life-saving procedures.
(See Compl., DE 1, ¶ 82). According to the
timeline of events kept by ATF Agent Russell King,
approximately 20 minutes expired before Bobbich began
treating Sawaf. (See Compl., DE 1, ¶ 83). The
Complaint does not explain how this task force came to be
escorting Mark S. Sawaf up the mountain or to what end.
administrator of the Sawaf's estate filed this lawsuit
against Defendants for alleged violations of the Sixth
Amendment, Fourth Amendment, Eighth Amendment, Fifth
Amendment of the United States Constitution and, Section 17
and Section 1 of the Kentucky Constitution, Paramedic
Malpractice, Compensatory Damages, Loss of Filial Consortium,
Negligence, and Wrongful Death. He seeks relief for himself
as an individual and for the estate of his son. For the
reasons which follow, these claims fail.
plaintiff bears the burden of pleading and establish
jurisdiction. See Fed.R.Civ.P. 8(a)(1); see also Moir v.
Greater Cleveland Reg'l Transit Auth., 895 F.2d 266,
269 (6th Cir. 1990). Unlike the Rule 12(b)(6) analysis, this
court is further “empowered to resolve factual disputes
when subject matter jurisdiction is challenged.”
the Complaint alleges that the events at issue occurred while
the individual defendants, who were otherwise employees of
LFUCG, were on “special detail” to and acting as
“part of” a federal ATF “task force.”
See DE 1, ¶¶17-22. Given Plaintiff's
allegations, the individual defendants qualify as federal
employees for FTCA purposes despite their employment with
LFUCG. 28 U.S.C. § 2671 (defining
“employee of the government” to include
“officers or employees of any federal agency ... and
persons acting on behalf of a federal agency in an official
capacity, temporarily or permanently, in the service of the
United States, whether with or without compensation.”);
5 U.S.C. § 3374(a), (c). (“During the period of
assignment, a State or local government employee on detail to
a Federal agency ... is deemed an employee of the agency for
the purpose of ... the Federal Tort Claims Act and any other
Federal tort liability statute[.]”); cf.
Kentucky Revised Statute 95.019 (allowing urban county
government police jurisdiction “anywhere in the county
in which the urban county government or city is
located”). For “personal injury or death arising
or resulting from the negligent or wrongful act or omission
of any employee of the Government, ” the “remedy
against the United States” provided by the FTCA is
“exclusive.” See 28 U.S.C. §
2679(b)(1); see also Allgeier v. United States, 909
F.2d 869, 871 (6th Cir. 1990) (“The FTCA clearly
provides that the United States is the only proper defendant
in a suit alleging negligence by a federal employee.”);
Galvin v. Occupational Safety & Health Admin.,
860 F.2d 181, 183 (5th Cir. 1988) (“It is beyond
dispute that the United States, and not the responsible
agency or employee, is the proper party defendant in a
Federal Tort Claims Act suit.”).
follows that, because the FTCA and its exclusive remedy apply
in this instance, this court lacks jurisdiction to consider
the state tort claims against the individual actors and, for
that matter, LFUCG since Defendants were serving a task force
outside of their jurisdiction as federal employees at the
time (by statutory definition) on the facts alleged in
Plaintiff's complaint. See Fed. R. Civ. P.
12(b)(1); Allgeier, 909 F.2d at 871 (“Failure
to name the United States as defendant in an FTCA suit
results in a fatal lack of jurisdiction.”);
Galvin, 860 F.2d at 183 (“Thus, an FTCA claim
against a federal agency or employee as opposed to the United
States itself must be dismissed for want of
Plaintiff's federal claim under 42 U.S.C. § 1983
will be dismissed. Section 1983 authorizes a private right of
action to enforce federal constitutional rights against
defendants who were acting under color of state law:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
the defendant acted under color of state law is an essential
element of a Section 1983 claim. See Flagg Bros. v.
Brooks, 436 U.S. 149, 155 (1978). The under color of
state law requirement does not extend to actions taken by
federal officials who are acting under color of federal
authority. SeeDistrict of Columbia v.
Carter, 409 U.S. 418, 424-25 (1973); McCloskey v.
Mueller, 446 F.3d 262, 271 (1st Cir. 2006). For this
reason, courts have long held that relief against federal
officers for federal constitutional violations can only be
pursued through an implied right of action ...