Price v. Rock Hill, City of

                UNITED STATES DISTRICT COURT                             
                  DISTRICT OF SOUTH CAROLINA                             

Travis Price,                   Case No. 0:21-cv-02686-TLW               
          PLAINTIFF,                                                     
     v.                                                                  
                                            Order                        
City of Rock Hill and Ralph Norman,                                      
          DEFENDANTS.                                                    

I. Factual and Procedural History                                         
    Travis Price (“Plaintiff” or “Price”) originally filed this action in the York 
County Court of Common Pleas on July 19, 2021. The case was removed to this Court 
on August 20, 2021. Plaintiff asserts claims against the City of Rock Hill (“City”) and 
one  claim  for  defamation  against  Congressman  Ralph  Norman,  United  States 
Representative for the 5th Congressional District of South Carolina (“Representative 
Norman”). See ECF No. 24 ¶¶ 149-175.                                      
    By way of background, Plaintiff’s operative amended complaint was filed on 
October 21, 2021, and on November 19, 2021, Representative Norman filed a motion 
to dismiss arguing Plaintiff’s claim is barred by the doctrine of sovereign immunity 
because he failed to first exhaust his administrative remedies. ECF Nos. 24, 33. On 
March 16, 2022, United States Magistrate Judge Shiva V. Hodges issued a report and 
recommendation, recommending this Court deny Representative Norman’s motion to 
dismiss. ECF No. 39 at 14. The Court adopted the Report, ECF No. 39, and directed 
the parties to proceed with a certification from the Attorney General as outlined in 
28 U.S.C. § 2679 and 28 C.F.R. § 15.3. See ECF No. 45 at 3. On June 9, 2022, the 
Director of the Torts Branch, Civil Division, United States Department of Justice, 
certified that Representative Norman was acting within the scope of his office as a 

Member of Congress at the time of the alleged conduct. ECF No. 49-2.      
    This matter is back before the Court on the United States’ motion to substitute 
and dismiss, brought pursuant to Fed. R. Civ. P. 12(b)(1) where the United States 
certifies that Representative Norman was acting within the scope of his employment 
when he issued the allegedly-defamatory statements at issue, additionally arguing 
that Plaintiff’s claim must be dismissed against the United States for failure to 

exhaust  his  administrative  remedies  pursuant  to  the  Federal  Tort  Claims  Act 
(“FTCA”). ECF No. 49-1 at 1.                                              
    Presently before the Court is the Report and Recommendation (“Report”) filed 
by United States Magistrate Judge Shiva V. Hodges. ECF Nos. 49, 54. In the Report, 
the Magistrate Judge recommended that the Court grant the United States’ motion 
to substitute and dismiss. Plaintiff filed objections to the Magistrate Judge’s Report 
on July 27, 2022. ECF No. 55. The Government filed a reply brief to Plaintiff’s 

objections. ECF No. 56. This matter is now ripe for review.               
II. Standard of Review                                                    
    The Court is charged with conducting a de novo review of any portion of the 
Magistrate Judge’s Report and Recommendation to which a specific objection is 
registered,  and  may  accept,  reject,  or  modify,  in  whole  or  in  part,  the 
recommendations contained in that report. 28 U.S.C. § 636. In conducting its review, 
the Court applies the following standard:                                 
    The magistrate judge makes only a recommendation to the Court, to    
    which any party may file written objections.... The Court is not bound 
    by the recommendation of the magistrate judge but, instead, retains  
    responsibility for the final determination.  The Court is required to make 
    a de novo determination of those portions of the report or specified 
    findings or recommendation as to which an objection is made. However, 
    the  Court  is  not  required  to  review,  under  a  de  novo  or  any  other 
    standard, the factual or legal conclusions of the magistrate judge as to 
    those portions of the report and recommendation to which no objections 
    are addressed.  While the level of scrutiny entailed by the Court's review 
    of the Report thus depends on whether or not objections have been filed, 
    in either case the Court is free, after review, to accept, reject, or modify 
    any of the magistrate judge's findings or recommendations.           

Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992) 
(citations omitted).                                                      
     In light of the standard set forth in Wallace, the Court has carefully reviewed 
the report, the objections, and all relevant filings—including the cited cases and 
statutes. Specifically, the Court, in addition to carefully reviewing the Report and 
Recommendation, carefully reviewed the objections to the Report, the reply to the 
objections, and the memoranda filed by both parties in connection with the motion to 
substitute and dismiss. The Court also reviewed the existing caselaw that addresses 
the issues of both certification and administrative tort claims.          
III. Discussion                                                           
    A. United States’ Motion to Substitute                               
    First, the Court will address the United States’ motion to substitute. The 
Government argues the Court should substitute the United States as a defendant for 
Representative  Norman.  The  Government  points  to  a  Westfall  Act  Certification 
issued by the Director of the Torts Branch of the Civil Division of the United States 
Department of Justice. The certification, which is included as an exhibit in the 

Government’s Motion to Substitute and Dismiss, ECF No. 49-2, states in part that 
“Defendant Ralph Norman was acting within the scope of his office as a Member of 
Congress at the time of the alleged conduct.”1 The Government argues that “the 
Westfall Act accordingly requires the substitution of the United States as Defendant 
in this action.”                                                          
    Price argues that the United States’ motion to substitute should be denied 

because he challenges the certification and is entitled to conduct limited discovery 
and seeks an evidentiary hearing on the issue. Price argues “limited discovery is 
permitted in a Westfall Act case where a plaintiff alleges sufficient facts that, if taken 
as  true,  would  establish  that  the  defendant’s  actions  exceeded  his  scope  of 
employment.” ECF No. 52 at 6 (citing Wuterich v. Murtha, 562 F.3d 375 (D.C. Cir. 
2009)). Specifically, Price argues that the following facts justify allowing him to 
conduct limited discovery on the scope of employment issue—(1) that Price expressly 

pled that Representative Norman was being sued in his individual capacity, rather 
than in his official capacity as a Member of Congress, (2) that Representative Norman 
“added false allegations to his original social media post that were not included in the 
City’s  official  statement”  and  (3)  that  Representative  Norman  did  not  remove 
negative references to Price after the City’s retraction of its official statement. ECF 


1 The Certification, ECF No. 49-1, is issued pursuant to 28 U.S.C. § 2679 AND 28 C.F.R. § 15.4 by the 
Director of the Torts Branch, Civil Division, United States Department of Justice.  
No. 52 at 7.                                                              
    The Magistrate Judge states in her Report, “the FTCA is the exclusive remedy 
for ‘personal injury . . . 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 employment.’” 28 U.S.C. § 2679(b); ECF No. 54 at 4. As amended by the Federal 
Employees Liability Reform Act and Tort Compensation Act of 1988 (“Westfall Act”), 
the  FTCA  provides  a  mechanism  for  the  United  States  to  substitute  itself  as 
defendant for employees sued in legal actions. Once the Attorney General certifies 
that the defendant federal officer was acting within the scope of his office at the 

relevant time, the statute itself provides that the United States “shall” be substituted 
as the sole defendant in the action. Moreover, the Supreme Court has explained, 
“[w]hen a federal employee is sued for wrongful or negligent conduct, the [Westfall] 
Act empowers the Attorney General to certify that the employee ‘was acting within 
the scope of his office or employment at the time of the incident out of which the claim 
arose.’”  Osborn v. Haley, 549 U.S. 225, 229–30 (2007) (quoting 28 U.S.C. § 2679(d)(2)). 
The Supreme Court  has ruled that “[this] statute is fairly constructed to allow 

[plaintiffs] to present to the District Court their objections to the Attorney General’s 
scope-of-employment certification.” Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 
436–37 (1995).                                                            
    Next,  the  Magistrate  Judge  lays  out  that  “the  scope-of-employment 
certification is prima facie evidence that the defendant employee acted within the 
scope  of  his  employment,  thereby  placing  the  burden  on  the  plaintiff  to  prove 
otherwise.” ECF No. 54 at 5 (citations omitted). Plaintiff must present “specific 
evidence or the forecast of specific evidence that contradicts the Attorney General’s 
certification decision, not mere conclusory allegations and speculation.” Id. “At all 

stages of the process, it is for the district court to weigh the sufficiency of the evidence, 
to determine whether genuine issues of fact exist, and ultimately to resolve these 
factual issues . . . to determine whether the certification should stand.” Borneman v. 
United States, 213 F.3d 819, 827 (4th Cir. 2000). The Magistrate Judge concludes 
that in making this determination, “courts should apply ‘the law of the state in which 
the tort occurred’” and that “South Carolina law recognizes that ‘[a] principal may be 

held liable for defamatory statements made by a servant acting within the scope of 
his employment or within the scope of his apparent authority.’” ECF No. 54 at 6–7 
(citing  Abofreka  v.  Alston  Tobacco  Co.,  341  S.E.2d  622,  625  (S.C.  1986)).  The 
Magistrate Judge applied this standard in concluding that Representative Norman 
was communicating with his constituents about a matter of public concern in his 
official capacity as a Member of Congress. She recommends that the District Court 
grant the United States’ motion to substitute it as a defendant in this action. 

    Federal  courts  have  repeatedly  recognized  that  Members  of  Congress  are 
acting  in  their  official  capacity  when  they  “broadcast  their  views  on  pending 
legislation and related current events through press releases, televised speeches, 
interviews, and, as in the present case, through social media postings.” Does 1-10 v. 
Haaland, 973 f.3d 591, 600 (6th Cir. 2020), cert. denied sub nom. Does v. Haaland, 
209 L. Ed. 2d 529, 141 S. Ct. 2466 (2021). In Haaland, high school students brought 
a libel action against two members of Congress, U.S. Representative Debra Haaland 
and  U.S.  Senator  Elizabeth  Warren,  based  on  a  series  of  statements  made  by 
Representative Haaland and Senator Warren on Twitter in response to a widely 

publicized incident involving students and a Native American activist on the National 
Mall. In that case, the district court found plaintiffs’ defamation claims were barred 
by sovereign immunity, and the 6th Circuit affirmed. The Court stated: (i) Members 
of Congress are government employees for purpose of the FTCA (ii) the statements 
made were in furtherance of the defendants’ employer, (iii) served the interests of 
constituents, were views regarding topical issues and related legislation and, (iv) the 

statements  were  made  in  the  course  of  employment.  Senator  Warren  and 
Representative Haaland were dismissed from the suit.                      
    This Court also finds Council on Am. Islamic Rels v. Ballenger, 444 F.3d 659 
(D.C. Cir. 2006) instructive. There, a Member of Congress made allegedly defamatory 
comments about the Council on American-Islamic Relations, referring to them as a 
“fund-raising arm for Hezbollah,” during a telephone interview related to his pending 
divorce. Id. at 662.  The D.C. Circuit explained that “the appropriate question, then, 

is whether that telephone conversation—not the allegedly defamatory sentence—was 
the kind of conduct [the Congressman] was employed to perform.”  Id. at 664.  Looking 
at the entire phone interview, the D.C. Circuit found that it was an action within the 
scope of the Congressman’s duties and the “allegedly defamatory statement was 
incidental to the kind of conduct he was employed to perform.”  Id. at 664–65.     
    This Court also notes the case Operation Rescue Nat. v. United States, 975 F. 
Supp. 92 (D. Mass. 1997), aff'd, 147 F.3d 68 (1st Cir. 1998). In that case, Senator 
Edward M. Kennedy stated “Operation Rescue . . . has as a matter of national policy 
firebombing and even murder.” Id. at 94–95. The plaintiff sought damages asserting 

a defamation claim. The Court found the remarks were made by Senator Kennedy 
within the scope of employment to inform the public of reasons for his position on 
pending legislation and that the statements were part of the Senator’s duties. The 
Court stated, “the Westfall Act provides Senator Kennedy immunity for his remarks 
regarding Operation Rescue[.]” Id. at 96. This case has application here.  
    Statements issued on a Member of Congress’s official social media accounts “fit 

within  the  wide  range  of  legitimate  errands  performed  for  constituents,  which 
includes preparing so called ‘newsletters’ to constituents, news releases, and speeches 
delivered outside the Congress.”  Haaland, 973 F.3d at 602 (quoting United States v. 
Brewster, 408 U.S. 501, 512 (1972)) (internal quotation marks omitted).  Social media 
platforms are the “modern public square,” Packingham v. North Carolina, 137 S. Ct. 
1730, 1737 (2017), and accordingly, “[t]here is no meaningful difference between 
[social media posts] and the other kinds of public communications between an elected 

official  and  their  constituents  that  have  been  held  to  be  within  the  scope-of-
employment” of a Member of Congress.  Haaland, 973 F.3d at 602.           
    The District Court finds the analysis set forth by the Magistrate Judge in the 
Report regarding the Government’s Motion to Substitute persuasive. In her Report, 
the Magistrate Judge concludes, citing relevant caselaw, that Price has “failed to 
carry his burden to show an issue of material fact concerning whether Norman was 
acting within the scope of his employment when he issued the allegedly-defamatory 
statements” on two separate grounds. ECF No. 54 at 8. First, the Magistrate Judge 
concludes that “Plaintiff does not cite, nor is the court aware of case law indicating 

that because Plaintiff sued Norman in his individual, as opposed to official, capacity, 
this captioning bears upon whether Norman’s actions exceeded the scope of his 
employment.” Id. Second, the Magistrate Judge concludes that Plaintiff’s allegation 
that  Representative  Norman  made  knowingly-false  statements  is  insufficient  to 
warrant discovery. “Even if true, the correct inquiry is not the wrongfulness of the 
conduct, but the type of act at issue that is dispositive . . . a Congressman speaking 

to his constituents about a matter of public concern.” Id.                
    Price filed objections to the Report, ECF No. 55. First, he disagrees with the 
Report’s conclusion that existing caselaw holds that Members of Congress act within 
the course and scope of their office when communicating with constituents via social 
media on matters of public concern. Id. at 1. Second, Price restates that he is entitled 
to conduct limited discovery on the issue “of whether Defendant Norman was in the 
course and scope of his employment and whether the Westfall Certification is correct.” 

Id.                                                                       
    Notably,  Price  does  not  object  to  the  Magistrate  Judge’s  conclusion  that 
Representative Norman’s social media posts were about a matter of public concern. 
ECF No. 54 at 2-3. Moreover, Price’s objections do not cite any specific caselaw 
arguing the contrary, nor do the objections refute the expansive body of caselaw cited 
by the Government in its briefs or the litany of cases set forth by the Magistrate Judge 
in her analysis.                                                          
    In coming to its conclusion, the Court relies on the facts alleged in the Amended 
Complaint. This complaint asserts that, on June 23, the City of Rock Hill distributed 

an official statement addressing the “Arrest of Ricky Roderick Price and Travis 
Price.” Am. Compl. ¶¶ 40-41. The statement indicated Price was not compliant with 
law enforcement during the interaction with officers at the gas station, “yelling 
belligerently,” “us[ing] his body to bump the Officers backward,” and “shov[ing] 
Officers.” Am. Compl. ¶ 42.  Representative Norman, who represents Rock Hill and 
the surrounding communities in Congress, posted a written statement on his official 

“Rep. Ralph Norman” Facebook page the next day. See Am. Compl. ¶¶ 73-74. The 
Amended Complaint states that Representative Norman “specifically adopted and 
referenced … [the] City’s official written and publicly disseminated Memorandum 
and statements” in his post. Am. Compl. ¶ 94. The Amended Complaint asserts that 
the Facebook post incorrectly referred to Mr. Price as a “suspect” and indicated that 
he had “interfere[ed] with things” and was “non-compliant” with police officers. Id. 
Furthermore,  in  the  post  Representative  Norman  discussed  the  protests  that 

occurred following the incident, thanked law enforcement, and expressed support for 
the  law  enforcement  community.  Id. The  Amended  Complaint  includes  thirteen 
counts, one of which is against both Representative Norman and the City of Rock Hill, 
see Am. Compl. ¶¶ 149-75, while the remaining twelve counts are brought only 
against the City.                                                         
    The core issue before the Court is whether Representative Norman acted 
within his official capacity. This Court has reviewed the pleadings and briefings in 
detail, and finds that the Amended Complaint makes clear that Price has sued 
Representative Norman “based on acts or omissions within the scope of [his] federal 

office[].” Keyter v. McCain, 207 F. App’x 801, 802 (9th Cir. 2006) (rejecting argument 
that  plaintiff  sued  federal  official  defendants  in  their  personal  capacities  when 
allegations in the complaint indicated otherwise). Regardless of how Plaintiff may 
label  Representative  Norman’s  capacity,  the  FTCA  precludes  personal  capacity 
actions by providing the “exclusive” remedy for tort claims that may arise from official 
actions by federal employees. See 28 U.S.C. 2679. “Personal capacity suits against 

employees are not cognizable under the FTCA.” Terrell v. United States, No. 08-cv-
2228, 2009 WL 2762516, at *4 (D.S.C. Aug. 27, 2009). Therefore, in accordance with 
the body of caselaw, and based on the assertions in the record, this Court finds that 
Representative Norman acted within the scope of his office. The posted statement 
regarding the plaintiff’s arrest was a matter of public concern, made by an employee 
of the government about a matter of public concern. It was posted on Representative 
Norman’s Facebook page.                                                   

    Thus, this Court concludes that the Magistrate Judge correctly applied the law 
to the allegations in Plaintiff’s Amended Complaint in recommending that the United 
States be substituted for Representative Norman based on the allegations in the 
record. As discovery would not change this conclusion, Plaintiff’s request for limited 
discovery is denied.                                                      
    B. United States’ Motion to Dismiss                                  
    The Government argues that the Court should dismiss Plaintiff’s FTCA claim 
because he has not exhausted his administrative remedies. In the alternative, the 

Government argues Plaintiff’s FTCA claim should be dismissed because the FTCA’s 
limited waiver of sovereign immunity is subject to numerous exceptions. One specific, 
and  important,  exception  under  the  FTCA  including  one  that  preserves  the 
government’s immunity from suit for “[a]ny claim arising out of assault, battery, false 
imprisonment,  false  imprisonment,  false  arrest,  malicious  prosecution,  abuse  of 
process,  libel,  slander,  misrepresentation,  deceit,  or  interference  with  contract 

rights.” See 28 U.S.C. § 2680(h) (emphasis added).  Notably, this exception to liability 
protects “an employee of the Government” from liability based on a claim “arising out 
of . . . libel [or] slander,” which is the focus of the claim brought by Plaintiff.  
    As the Magistrate Judge states in the Report, “Plaintiff responds only that he 
has not had the opportunity to exhaust his administrative remedies, in that he 
brought suit against Norman, not the United States, and ‘[i]f the Court is inclined to 
grant United States’ Motion to Substitute, Plaintiff requests that the Court allow 

Plaintiff the appropriate time to comply with 28 § U.S.C. 2675, to the extent he is 
required to do so.’” ECF Nos. 52 at 8; 54 at 11. Plaintiff essentially concedes that he 
did not pursue the administrative remedy.                                 
    In the Report, the Magistrate Judge concludes that Plaintiff has not carried 
his burden to prove this court has jurisdiction, warranting dismissal of his FTCA 
claim pursuant to Fed. R. Civ. P. 12(b)(1) on grounds that Plaintiff has failed to 
exhaust his administrative remedies. Accordingly, the Magistrate Judge recommends 
this Court grant the Untied States’ motion to dismiss, dismissing Plaintiff’s FTCA 
claim  without  prejudice  to  refile,  if  he  so  choses,  following  exhaustion  of  his 

administrative remedies. ECF No. 54 at 11.                                
    A  motion  to  dismiss  for  lack  of  subject  matter  jurisdiction  raises  the 
fundamental question of whether a court has jurisdiction to adjudicate the matter 
before it. Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 (2006). When a defendant 
makes a facial challenge to subject matter jurisdiction, “the plaintiff, in effect, is 
afforded the same procedural protection as he would receive under a Rule 12(b)(6) 

consideration.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). It is the plaintiff’s 
burden to prove jurisdiction, and the court is to “regard the pleadings’ allegations as 
mere evidence on the issue, and may consider evidence outside the pleadings without 
converting the proceeding to one for summary judgment.” Richmond, Fredericksburg 
& Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).   
    The Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., provides individuals 
injured by the tortious acts of federal government employees with an avenue to seek 

compensation from the federal government where they otherwise would be barred by 
sovereign immunity.                                                       
    As held by the Supreme Court:                                        
    Absent a waiver, sovereign immunity shields the Federal Government and its 
    agencies from suit. Sovereign immunity is jurisdictional in nature. Indeed, the 
    “terms of [the United States’] consent to be sued in any court define that court’s 
    jurisdiction to entertain the suit.”                                 
F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (citations omitted). The FTCA contains a 
limited waiver of sovereign immunity, subject to numerous exceptions. See 28 U.S.C. 
§ 2680 (listing exceptions). To advance a tort claim against the United States, a 

plaintiff  must  establish  that  he  complied  with  the  administrative  presentment 
requirements of the FTCA, 28 U.S.C. § 2675, and bears the burden of establishing 
that an exception to the FTCA’s limited waiver of sovereign immunity does not apply. 
Welch v. United States, 409 F.3d 646, 651 (4th Cir. 2005); see also Henderson v. United 
States, 785 F.2d 121, 123 (4th Cir. 1986) (holding a plaintiff, prior to filing an action 
under the FTCA in federal court, must “first present[] the claim to the appropriate 

Federal  agency,”  noting  “[i]t  is  well-settled  that  the  requirement  of  filing  an 
administrative claim is jurisdictional and may not be waived.”).          
    This Court finds Plaintiff has not administratively presented his defamation 
claim against Representative Norman to the House, as documented by the Office of 
General Counsel, United States House of Representatives. See ECF No. 49-3 at 1. 
Based on the record at this time, the Court finds that Plaintiff has failed to exhaust 
his administrative remedies.                                              

    Even if the Court had subject matter jurisdiction over Price’s claim, this Court 
finds dismissal is still warranted because his claim arises out of torts precluded by 
the FTCA—specifically, defamation. That issue warrants discussion here.   
    The FTCA excludes from the waiver of sovereign immunity specific types of 
tort claims. Those claims generally are intentional torts and claims “arising out of” 
those torts. See 28 U.S.C. § 2680(h). Included on that list of torts for which the federal 
government has not waived its sovereign immunity are the defamation torts. Id. In 
determining whether a claim is excluded, courts determine the nature and extent of 
tort liability by applying the law of the state in which the cause of action arose. 

    If a claim against the United States falls within an exception to the FTCA, the 
cause of action would be properly dismissed for lack of subject matter jurisdiction. 
Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 967 (4th Cir. 1992) (“The 
subject matter jurisdiction of the federal courts is defined by any conditions the 
United  States  attaches  to  its  waiver  of  immunity.”).  The  Fourth  Circuit  has 
consistently applied the libel and slander exception of the FTCA to bar claims that 

“arise out of” claims for defamation, even though a cause of action for defamation is 
not specifically alleged in the Complaint. In Talbert v. United States, the Fourth 
Circuit affirmed a district court in holding that, “artful pleading cannot alter the fact 
that his claim ‘resound[s] in the heartland of the tort of defamation: the injury is to 
reputation;  the  conduct  is  the  communication  of  an  idea,  either  implicitly  or 
explicitly.’” Talbert v. United States, 932 F.2d 1064, 1067 (4th Cir. 1991). The Court 
in Talbert concluded the plaintiff’s claim was barred under § 2680(h) of the FTCA 

because the gist of the plaintiff’s complaint was that the Department of Commerce 
was disseminating false information about plaintiff, rather than acting negligently 
in maintaining plaintiff’s personnel records, as plaintiff alleged. Id. at 1066. 
    This District Court recently dismissed a case involving defamation claims 
levied against a member of the United States Senate. Order Granting Motion to 
Dismiss, Quinn v. United States, No. 0:21-cv-02950 (D.S.C. March 29, 2022), ECF No. 
11. In that case, a professional bass fisherman alleged state law tort claims of 
invasion of privacy and negligence against U.S. Senator Bernie Sanders for using his 
image in a policy video shared on Sanders’ social media pages entitled “5 Reasons the 

Border Wall Won’t Stop Drugs.” Id. at 1. Plaintiff alleged that Senator Sanders did 
not obtain his permission to use his likeness or identity in the video and that Senator 
Sanders knew or should have known that these assertions were false and harmful to 
Plaintiff,  specifically  stating  that  the  suit  was  to  “vindicate  an  egregious,  false 
association created by the video” which falsely implied he was “associated in criminal 
activities.” Id. at 1-2. The Court determined Plaintiff was barred from proceeding 

with his lawsuit based on § 2680 of the FTCA because (i) the discretionary function 
exception to sovereign immunity applied, and (ii) the claim asserted was a defamation 
claim which precludes liability in § 2680(h) of the FTCA. Therefore, Plaintiff’s claims 
were outside the FTCA’s limited waiver of immunity, thus the Court lacked subject 
matter jurisdiction.                                                      
    Here, Plaintiff has expressly pled the intentional tort of defamation, a named 
exception to the FTCA’s limited waiver of sovereign immunity. It is the Government’s 

position that Plaintiff’s FTCA claim should be dismissed because of the FTCA’s 
limited waiver of sovereign immunity is subject to numerous exceptions, as discussed 
above. The Court agrees. As noted by the Magistrate Judge in the Report, Plaintiff 
does not directly address this argument in neither his briefing nor his objections. See 
ECF No. 54 at 11. Therefore, because Price’s claim arises out of allegedly defamatory 
acts, his claim is barred under § 2680 of the FTCA.                       
IV. Conclusion                                                            

    In light of the standard set forth in Wallace, the Court has reviewed, de novo, 
the Report, the objections, and the reply briefs. In summary, after careful review of 
the Report and the objections, and for the reasons stated by the Magistrate Judge, 
the Report, ECF No. 54 is ACCEPTED, and the Objections to the Report, ECF No. 
55, are OVERRULED. The United States’ motion to substitute, ECF No. 49, is 
GRANTED.   Furthermore,  Defendant’s  Motion  to  Dismiss,  ECF.  No.  49  is 

GRANTED, dismissing Plaintiff’s FTCA claim without prejudice.             
    IT IS SO ORDERED.                                                    

                                  __s/Terry L. Wooten______              
                                  Senior United States District Judge    

October 17, 2022                                                          
Columbia, South Carolina