Marcell Hill v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11970
Non-Argument Calendar
____________________
MARCELL HILL,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:22-cv-01854-WFJ-MRM
____________________
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2 Opinion of the Court 23-11970
Before JORDAN, LAGOA AND DUBINA, Circuit Judges.
PER CURIAM:
Marcell Hill, proceeding pro se, appeals the district court’s
order dismissing with prejudice her second amended complaint
that asserted twelve various claims against the United States pur-
suant to the Federal Tort Claims Act (“FTCA”). Hill asserted
claims of gross negligence and negligence arising from an incident
involving Marine officers that allegedly occurred many years prior
to her memory of the events. Hill claimed that a Marine Major
ordered his subordinates, as part of a hazing/initiation, to drug and
sexually assault Hill and her companion. Hill also claimed that the
Major breached his duty, under the Marine Officer Oath and Code
of Conduct, by ordering his subordinates to perform these illegal
acts and to cover-up the incident. The district court dismissed the
complaint on the grounds that it was a shotgun pleading, was
barred by sovereign immunity, and was untimely. On appeal, Hill
argues that her claims under Counts I and II were not barred by
sovereign immunity because they related to negligence, not inten-
tional torts. She also contends that her claims were timely and that
that her complaint was not a shotgun pleading. After reviewing
the record and reading the parties’ briefs, we affirm in part, vacate
and remand in part, with instructions that the district court dismiss
Counts I and II without prejudice.
I.
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23-11970 Opinion of the Court 3
We review de novo a district court’s determination of sover-
eign immunity, Nat’l Ass’n of Bds. of Pharmacy v. Bd. of Regents of the
Univ. Sys. of Ga., 633 F.3d 1297, 1313 (11th Cir. 2011), and a district
court’s subject matter jurisdiction. Motta ex rel. A.M. v. United
States, 717 F.3d 840, 843 (11th Cir. 2013). Jurisdiction is a “threshold
issue.” United States v. Moore, 954 F.3d 1322, 1332 (11th Cir. 2020).
“Sovereign immunity is inherently jurisdictional in nature.” Dupree
v. Owens, 92 F.4th 999, 1005 (11th Cir. 2024). Thus, where a district
court’s dismissal is “based on sovereign immunity grounds, the ju-
risdictional nature of the dismissal requires it to be entered without
prejudice.” Id. at 1008 (vacating and remanding “for the limited
purpose of allowing the district court to dismiss the case without
prejudice”). The federal government is entitled to sovereign im-
munity from civil lawsuits, except to the extent that it consents to
be sued. United States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349,
1351 (1980).
II.
The FTCA provides a limited waiver of sovereign immunity
for tort claims. Motta ex rel. A.M., 717 F.3d at 843. It confers on
federal district courts exclusive jurisdiction to hear claims against
the United States for money damages “caused 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. § 1346(b)(1). This limited waiver of sovereign immunity is
strictly construed in favor of the United States. Lane v. Pena, 518
U.S. 187, 192, 116 S. Ct. 2092 (1996).
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4 Opinion of the Court 23-11970
The FTCA makes the United States liable to the same extent
as a private individual under similar circumstances under the law
of the place where the tort occurred, subject to enumerated excep-
tions to the immunity waiver. Levin v. United States, 568 U.S. 503,
506-07, 133 S. Ct. 1224, 1228 (2013). The relevant exception in this
case is 28 U.S.C. § 2680(h), which preserves the government’s im-
munity from suit on “[a]ny claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of pro-
cess, libel, slander, misrepresentation, deceit, or interference with
contract rights.” 28 U.S.C. § 2680(h) (emphasis added). We have
referred to § 2680(h) as the “intentional tort exception.” Levin, 568
U.S. at 507, 133 S. Ct. at 1228. The intentional tort exception con-
tains a proviso that waives sovereign immunity when such torts
are committed by “investigative or law enforcement officers of the
United States Government.” 28 U.S.C. § 2680(h).
Further, we have noted that “the phrase ‘arising out of ’
should be broadly construed.” Metz v. United States, 788 F.2d 1528,
1533 (11th Cir. 1986) (citing Kosak v. United States, 465 U.S. 848, 104
S. Ct. 1519 (1984)). Under this broad construction, a claim arises
out of “a § 2680 excepted tort if the governmental conduct that is
essential to the plaintiff’s cause of action is encompassed by that
tort.” Zelaya v. United States, 781 F.3d 1315, 1333 (11th Cir. 2015).
This is true “even if the plaintiff has denominated, as the basis for
the cause of action, a tort not found within § 2680(h)’s list of ex-
cepted torts.” Id. “Accordingly, it is the substance of the claim and
not the language used in stating it which controls.” Id. at 1334
(quotation marks omitted).
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23-11970 Opinion of the Court 5
III.
Pro se pleadings will be liberally construed. Campbell v. Air
Jam. Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014). Nevertheless, “is-
sues not briefed on appeal by a pro se litigant are deemed aban-
doned.” Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). Fur-
thermore, “we do not address arguments raised for the first time in
a pro se litigant’s reply brief.” Id. We may affirm on any ground
supported by the record. Wright v. City of St. Petersburg, Fla., 833
F.3d 1291, 1294 (11th Cir. 2016).
As an initial matter, Hill only challenges the district court’s
dismissal of her claims raised in Counts I and II of her second
amended complaint. Thus, she has abandoned any challenge to
the dismissal of the remaining counts. Moreover, we decline to
address any arguments Hill raises for the first time in her reply brief
regarding the federal law enforcement proviso of § 2680(h). See
Timson, 518 F.3d at 874.
In a similar case to the present one, the Supreme Court ad-
dressed “whether the survivor of a serviceman, who was murdered
by another serviceman, may recover from the Government under
the [FTCA] for negligently failing to prevent the murder.” United
States v. Shearer, 473 U.S. 52, 53, 105 S. Ct. 3039, 3040 (1985). The
Supreme Court determined that the plaintiff’s claim arose out of
the battery committed by another service member such that the
claim was barred by sovereign immunity. Id.at 55, 105 S. Ct. at
3041. The Supreme Court reasoned that the plaintiff could not
“avoid the reach of § 2680(h) by framing her complaint in terms of
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6 Opinion of the Court 23-11970
negligent failure to prevent the assault and battery. Id. The Su-
preme Court stated that § 2680(h) “in sweeping language . . . ex-
cludes any claim arising out of assault or battery. Id. Hill’s claim is
similar and arises out of an alleged assault or battery.
The record demonstrates that the district court appropri-
ately determined that Counts I and II were barred by sovereign im-
munity. Although Hill argues that the Marine Major was negligent
in issuing illegal orders, and the Marine subordinates were negli-
gent by complying with those orders, her claims nevertheless arise
out of intentional torts, as she asserts that the orders were to com-
mit assault and battery. Hill cannot change the essence of these
allegations by using language that sounds in negligence. See Zelaya,
781 F.3d at 1334 (“it is the substance of the claim and not the lan-
guage used in stating it which controls”).
In any event, even if Hill’s negligence claims did not arise
out of intentional torts, they would still be barred, as her negli-
gence claims are based on a breach of duty arising from a military
oath and code of conduct and are not independently tortious under
applicable state law. See Smith v. United States, 14 F.4th 1228, 1233
(11th Cir. 2021) (finding that an alleged duty created under the
Postal Operations Manual would arise only under federal law and
noting that a federal employee’s conduct must be independently
tortious under applicable state law to be liable under the FTCA);
see also Dalrymple v. United States, 460 F.3d 1318, 1327 (11th Cir.
2006).
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23-11970 Opinion of the Court 7
Accordingly, based on the aforementioned reasons, we af-
firm the district court’s determination that Counts I and II were
barred by sovereign immunity without reaching other issues raised
on appeal. However, we vacate and remand for the limited pur-
pose of allowing the district court to dismiss the claims without
prejudice.
AFFIRMED IN PART, VACATED AND REMANDED IN
PART.
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