United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON UNITED STATES OF AMERICA'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT
WILLIAM T. LAWRENCE, District Judge.
This cause is before the Court on the United States of America's Motion to Dismiss or, in the alternative, Motion for Summary Judgment (Dkt. No. 13 in Cause No. 1:15-cv-160-RLY-TAB (S.D. Ind. Filed Feb. 5, 2015)). The motion is fully briefed and the Court rules as follows.
I. FACTUAL BACKGROUND
The facts as alleged in Bunch's Complaint (Dkt. No. 1 in Cause No. 1:15-cv-160-RLY-TAB) are as follow.
Bunch's Greensburg, Indiana mobile home caught fire in the early morning hours of June 30, 1995, killing her three-year-old son, Anthony. An investigation into the cause of the fire soon ensued. Indiana Fire Marshal investigators Bryan Frank and James Skaggs gathered evidence from Ms. Bunch's home and quickly concluded that "the fire was deliberately set, that accelerants had been used to cause the fire, that there were pour patterns' in the burned out home where accelerants had been poured, and that the fire had started in two separate locations, one of which was the bedroom in which Anthony was sleeping." Compl. ¶ 8.
In support of their theory, Frank and Skaggs sent the evidence to the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") to be tested. William Kinard, a forensic chemist with the ATF, was assigned to the case. Kinard concluded that several samples, including those from Anthony's bedroom (Exhibit 8) and the living room (Exhibit 6), had no traces of Heavy Petroleum Distillates ("HPDs") or any other accelerants. He documented these findings in his initial report and communicated them to Skaggs and Frank.
Because Kinard's findings were inconsistent with Skaggs and Franks' theory of the case, they "caused Kinard's report to be altered so that it falsely stated that accelerants were found in exhibits 6 and 8, " Compl. ¶ 24, and "Kinard agreed to alter his report to state that accelerants were found in exhibits 6 and 8, and concocted an official' report which falsely so stated." Id. ¶ 25. Kinard also agreed not to include his finding that the areas that tested positive for HPDs were only "consistent with the presence of kerosene, for which there was an innocent explanation"; rather his official report would state that "they were consistent with a much broader array of HPDs[.]" Id. ¶ 26. Skaggs, Frank, and Kinard submitted only the "official" report to the Decatur County State's Attorney in July 1995.
In 1996, Bunch was convicted of murder and sentenced to sixty years in prison. In 2006, Bunch filed a post conviction petition challenging her conviction. During the post conviction proceedings,
it was first revealed that Kinard had prepared at least two reports that found no HPDs in exhibits 6 and 8-the crucial evidence from the bedroom and the "pour pattern" in the living room-and that Kinard had also determined that the HPDs found in other parts of the home were consistent only with kerosene, not other HPDs.
It also was revealed for the first time in the course of these proceedings that Kinard had communicated his real findings to Skaggs and Frank, that these findings had been suppressed, and that subsequently his official report had been altered and fabricated to inculpate [Bunch].
Id. ¶¶ 38-39. The Indiana Court of Appeals reversed Bunch's conviction on March 21, 2012, finding that "the State's failure to turn over a report from the ATF testing of floor samples violates Brady [.]" Id. ¶ 41; see also Bunch v. State, 964 N.E.2d 274 (Ind.Ct.App. 2012). Transfer to the Indiana Supreme Court was denied, and on December 17, 2012, all charges against Bunch were dropped. In all, Bunch spent seventeen years in jail.
After filing her notice of claim, Bunch filed this suit against Kinard on February 5, 2015. She brings two counts under the Federal Tort Claims Act ("FTCA"): 1) a claim for malicious prosecution; and 2) a claim for intentional infliction of emotional distress ("IIED").
II. APPLICABLE STANDARD
The United States has moved to dismiss Bunch's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and 12(b)(6), for failure to state a claim. While the United States takes the position that "the Court lacks subject matter jurisdiction over a case in which Congress has not waived sovereign immunity, " it also recognizes that the Seventh Circuit has rejected this position. See, e.g., United States v. Cnty. of Cook, Ill., 167 F.3d 381, 389 (7th Cir. 1999) ("[W]hat sovereign immunity means is that relief against the United States depends on a statute; the question is not the competence of the court to render a binding judgment, but the propriety ...