Opinion
Civil Action No. 4:04-cv-21900-TLW-TER.
July 27, 2005
REPORT AND RECOMMENDATION
I. PROCEDURAL BACKGROUND
The plaintiff, Carlton Buckley, ("plaintiff" or "Buckley") filed this action pro se on August 19, 2004. The plaintiff is an inmate presently incarcerated at the Federal Correctional Institution (FCI), Edgefield, South Carolina. The plaintiff has filed this lawsuit under the Federal Torts Claim Act (FTCA) claiming that the Bureau of Prisons (BOP) in Florida negligently lost a civil summons that was issued for him and negligently caused him to incur a $51,000,000.00 judgment due to an entry of default judgment in the civil matter. Defendant filed a motion to dismiss, or in the alternative, for summary judgment along with a memorandum in support on December 20, 2004. Because the plaintiff is proceeding pro se, he was then advised on January 6, 2005, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), that a failure to respond to defendant's motion to dismiss/summary judgment could result in the dismissal of his complaint. Plaintiff filed a response in opposition on January 10, 2005.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(d), DSC. Because this is a dispositive motion, the report and recommendation is entered for review by the District Court.
II. DISCUSSION A. ARGUMENT OF PARTIES/FACTUAL ALLEGATIONS
The plaintiff alleges that he was called to the Receiving and Discharge area at FCI Coleman on April 12, 2001, where a Sumter County Deputy Sheriff attempted to serve him papers. Plaintiff alleges that he advised the Deputy Sheriff that all legal papers should be served upon his trustee and/or legal counsel in Orlando. Plaintiff alleges that he was forcefully removed from the Receiving and Discharge area by the BOP staff causing him not to be able to complete his business with the Deputy Sheriff. Plaintiff asserts that when he inquired as to his documents on April 14, 2001, he was told that he could obtain the documents from his case manager. Plaintiff alleges that his case manager advised him that the documents had been misplaced. Plaintiff asserts that he filed various grievances complaining about the loss of his documents. Plaintiff contends that he was informed by the case manager on May 8, 2001, that he had received a faxed copy of the documents from the Deputy Sheriff. Plaintiff states that he participated in court mediation and negotiation throughout November and December 2001, and appeared via telephone for a two-hour court appearance on January 17, 2002, wherein he agreed to a settlement of $51,000,000.00. Plaintiff asserts that the failure to properly deliver the summons resulted in a default judgment against him for $51,000,000.00.
In the complaint, plaintiff admits that he may be out of time in filing this action but submitted a statement wherein he contends that any delay resulted from improper actions of the BOP staff by transferring him to different locations and not promptly forwarding his legal materials.
Defendant asserts that plaintiff was incarcerated at FCI Coleman in April 2001 and on April 12, 2001, a Sumter County Deputy Sheriff arrived at FCI Coleman in order to serve papers on plaintiff. Defendant asserts that plaintiff was called to the Receiving and Delivery area to meet with the Deputy Sheriff, but refused to accept the document and advised that the document should be served upon his Trustee or legal counsel in Orlando, Florida. The Deputy Sheriff left the documents in the Receiving and Delivery area and plaintiff did not take them. Defendant contends that the BOP forwarded the document to plaintiff's Unit Team, but the document was misplaced during the process. Defendant alleges that sometime thereafter, plaintiff asked his Case Manager what happened to the document the Deputy Sheriff brought for him. Plaintiff told his case Manager that the Deputy Sheriff left the document on the counter and he "refused to take them because he `doesn't get served,' he has an attorney who receives all his legal work." (Memorandum p. 4). Defendant contends that he Case Manager contacted Receiving and Delivery staff about the document and was told it was forwarded to the Unit Team. Defendant asserts that Unit Team never received the document and advised petitioner that the document could not be located. Defendant states that when plaintiff complained that he could now not respond to the court because the document was "lost," the Case Manager contacted the Sheriff's Office and obtained a telefaxed copy of the material. (Defendant's exhibit 1). However, defendant states that plaintiff refused to take the material so the Case Manager placed the document in plaintiff's Central File and advised him that it was available when he wanted to get it. Defendant asserts that the action was a divorce case filed against plaintiff and disposed of on October 23, 2001.
B. STANDARD FOR SUMMARY JUDGMENT
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972), and Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Department of Social Services, 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c).The movant has the burden of proving that a judgment on the pleadings is appropriate. Once the moving party makes this showing, however, the opposing party must respond to the motion with "specific facts showing that there is a genuine issue for trial." The opposing party may not rest on the mere assertions contained in the pleadings. Fed.R.Civ.P. 56(e) and Celotex v. Catrett, 477 U.S. 317 (1986).
The Federal Rules of Civil Procedure encourage the entry of summary judgment where both parties have had ample opportunity to explore the merits of their cases and examination of the case makes it clear that one party has failed to establish the existence of an essential element in the case, on which that party will bear the burden of proof at trial. See Fed.R.Civ.P. 56(c). Where the movant can show a complete failure of proof concerning an essential element of the non-moving party's case, all other facts become immaterial because there can be "no genuine issue of material fact." In the Celotex case, the court held that defendants were "entitled to judgment as a matter of law" under Rule 56(c) because the petitioner has failed to make a sufficient showing on essential elements of his case with respect to which he has the burden of proof. Celotex, 477 U.S. at 322-323.
C. SUBJECT MATTER JURISDICTION/STATUTE OF LIMITATIONS
Defendant argues that this case should be dismissed because the United States may not be sued without its consent. Defendant argues that subject matter jurisdiction is appropriate under the FTCA but the claim is barred by the "Detention of Goods" exception in § 2680(c). Further, defendant argues that subject matter jurisdiction is lacking due to plaintiff's failure to file this case within the statute of limitations.
As stated above, defendant argues that the suit is barred by the statute of limitations. Under 28 U.S.C. § 2401(b), a tort claim against the United States is barred "unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented." See Gallo v. United States, 331 F.Supp.2d 446. (E.D. Va. 2004). Complaints filed under the FTCA against the United States are governed by 28 U.S.C. § 2401, which reads in pertinent part:
A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.28 U.S.C. § 2401(b). This provision requires that, in order to invoke a district court's jurisdiction, a plaintiff must first file an administrative claim within two years of the date his claim accrues and then file an action within six months of the federal agency mailing its notice of denial of the administrative claim. Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986). The requirement that a suit be properly filed within six months of the agency's denial of the administrative claim is entitled to strict construction. Johnson v. United States, 652 F.Supp. 407, 409 (E.D.Va. 1987). "[F]ederal law defines the limitations period and determines when that cause of action accrued" for all claims made pursuant to the FTCA. Miller v. United States, 932 F.2d 301, 303 (4th Cir. 1991). In other words, state laws do not serve to toll or delay the accrual date or statute of limitations of the FTCA claim. See Miller, 932 F.2d at 303; see also Phillips v. United States, 260 F.3d 1316, 1319 (11th Cir. 2001) (dismissing lawsuit that was re-filed after voluntary dismissal and finding that Georgia Code did not extend limitations period of 28 U.S.C. § 2401(b)). Moreover, there is no provision applicable to 28 U.S.C. § 2401(b) that automatically tolls the limitation period. See 28 U.S.C. § 2401. Therefore, if the Plaintiff's claim is not timely filed within six months after the agency decision pursuant to the FTCA, the claim must be dismissed.
In this case, plaintiff filed an administrative claim on June 14, 2002. (Plaintiff's exhibit 7). A letter dated July 25, 2002, which denied the claim, was sent via certified mail to plaintiff on July 26, 2002. (Document # 8 and 9). The letter contains a statement telling the plaintiff that if he is dissatisfied with the agency's determination, he may file in the appropriate U.S. District Court within six months of the date the denial letter was mailed. The denial letter in this case complied with this requirement. (See exhibit 8). The denial letter was received at FCI Coleman and delivered to plaintiff who admits on the first page of his complaint that he "received disposition from the FTCA coordinator on July 25, 2002, denying Mr. Buckley's claims." See complaint. Thus, plaintiff had six months from that date to file his suit but did not file the complaint in this action until August 19, 2004 (August 4, 2004, Houston v. Lack delivery date). Plaintiff has admitted that he knew that he had six months to file the action but did not file it until almost nineteen (19) months later. Accordingly, it is recommended that this action be dismissed as it is barred by the statute of limitations.
The letter was not mailed until July 26, 2002, but was dated July 25, 2002.
Further, plaintiff has not presented sufficient evidence to warrant equitable tolling. Courts have held that in exceptional circumstances, equitable tolling may be available in suits against the United States. See Muth v. United States, 1 F.3d 246, 251 (4th Cir. 1993). Specifically, equitable tolling is only appropriate when the claimant has exercised due diligence in preserving his legal rights. Id. Moreover, to invoke the doctrine, the claimant must show that the "defendant attempted to mislead him and that the plaintiff reasonably relied on the misrepresentation by neglecting to file a timely charge." See English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987); Lawson v. Burlington Inds., 683 F.2d 862, 864 (4th Cir. 1982).
Based on the evidence presented, plaintiff's argument for equitable tolling should be denied. Plaintiff has failed to show that the defendant attempted to mislead him and that he reasonably relied on the misrepresentation in neglecting to file a timely charge. Lawson, supra. Plaintiff was advised in the letter he received that he had a six-month deadline to respond and has admitted that he knew he only had six months to file suit. As the denial of his administrative tort claim was received in July 2002, he had until January 2003, to file his civil suit.
Next, plaintiff alleges that he could not file suit within the time period because he was transferred in January 2003 to a contract facility in McRae Georgia and alleges his property was not transferred with him. However, defendant submitted an exhibit dated January 7, 2003, showing that a variety of property was packed for shipment to the contract facility in McRae Georgia. (Exhibit 13). Defendant also submitted an exhibit dated January 13 and 17, 2003, revealing that plaintiff was issued personal property, including a large amount of legal materials at McRae. The exhibit reveals that some of the property was mailed to his home and the remainder was issued to him on January 13 and 17, 2003. (Exhibit 14). Plaintiff signed the forms acknowledging the receipt or other disposition of the property. Defendant has submitted evidence that plaintiff was housed at the Federal Correctional Institution in Yazoo City, MS, from April 29, 2002, until his transfer to the McRae Correctional Center on January 7, 2003. (Exhibit 3). Plaintiff's transfer occurred on the same day. (Exhibit 3). Plaintiff was transferred from the McRae facility on July 9, 2003, stopped temporarily at the U.S. Penitentiary in Atlanta, Georgia, and arrived at FCI Edgefield on July 31, 2003. (Exhibit 3).
Plaintiff has further alleged that he filed a § 1983 complaint in the United States District Court of the Southern District of Georgia while at McRae Correctional Center which should preserve his right to sue in the instant case. Defendant submitted exhibit 15 which reveals that plaintiff did not file that complaint until March 3, 2003, which was also after the six-month deadline. Further, as defendant pointed out, plaintiff filed approximately seventeen (17) motions and two amended complaints in that case prior to its termination for failure to exhaust administrative remedies. This does not support his argument that he did not have his legal materials. (Exhibit 16). Based on the fact that plaintiff knew of the six-month deadline and did not use due diligence to preserve it, (filed action almost nineteen months late) and because plaintiff has failed to present a valid argument based on detrimental reliance, this action should be dismissed as the statute of limitations should not be tolled. Therefore, it is recommended that the motion for summary judgment be granted and this action dismissed for lack of subject matter jurisdiction based on a failure to comply with the statute of limitations.
D. SOVEREIGN IMMUNITY
Additionally, defendant has argued that it is a fundamental principle of sovereign immunity that federal courts do not have jurisdiction over suits against the United States unless Congress, via a statute, expressly and unequivocally waives the United States' immunity to suit. Defendant asserts that the FTCA is such a waiver, and it grants subject matter jurisdiction to federal courts for claims that arise from certain tortious conduct by government employees. Defendant contends at issue is this case is the "detention of goods" exception.
The FTCA waives sovereign immunity and allows suits against the United States for personal injuries caused by governmental employees acting within the scope of their employment. Under this act a plaintiff may recover monetary awards from the United States for property loss "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope . . . of employment." 28 U.S.C. § 1346(b). Whether any government employee was negligent is to be determined "in accordance with the law of the place where the act or omission occurred." Id. However, defendant asserts, inter alia, that plaintiff's FTCA claim is subject to dismissal because it falls under an exemption to the FTCA; specifically, that plaintiff's claim is barred by the "detention of goods" exception set forth in 28 U.S.C. § 2680(c), under which the Government retains immunity from suit for any claim arising from the detention of goods, merchandise, or other property by any law enforcement officer. Defendant notes that several circuits have held that the term "law enforcement officer" under § 2680(c) includes BOP personnel. See Steele v. Federal Bureau of Prisons, No. 02-1492, 2003 WL 23019855 (10th Cir. 2003); Chapa v. United States Department of Justice, 339 F.3d 388, 390 (5th Cir. 2003); Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804, 808 (9th Cir. 2003); Hatten v. White, 275 F.3d 1208, 1210 (10th Cir. 2002); United States v. Bein, 214 F.3d 408, 415 (3d Cir. 2000).
Although the Fourth Circuit has not yet addressed this issue, the undersigned finds the Third Circuit's reasoning in Chapa persuasive and applicable to the facts in this case. In Chapa, the Third Circuit found,
[The Plaintiff] argues that his claim is not barred by 28 U.S.C. § 2680(c) because BOP employees are not law enforcement officers within the meaning of the statute. This court has applied § 2680(c) to law enforcement officers other than customs or tax agents. In Halverson v. United States, 972 F.2d 654, 656 (5th Cir. 1992), we held that 28 U.S.C. § 2680(c) bars claims arising from the detention of goods by any federal law enforcement officers in the performance of their lawful duties. Id. Other circuits have also broadly interpreted the term "law enforcement officer" in applying 28 U.S.C. § 2680(c). See Schlaebitz v. United States Dep't of Justice, 924 F.2d 193, 194 (11th Cir. 1991)[federal Marshals included]; see also Ysasi v. Rivkind, 856 F.2d 1520, 1525 (Fed. Cir. 1988)[INS border patrol agents included]; Formula One Motors, Ltd. v. United States, 777 F.2d 822, 823 (2nd Cir. 1985)[DEA agents included]; United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481, 1490-91 (10th Cir. 1984)[USDA inspectors included]; United States v. Lockheed L-188 Aircraft, 656 F.2d 390, 397 (9th Cir. 1979)[FAA employees included].
Although the term "law enforcement officer" is not defined in the text of 28 U.S.C. § 2680(c), that term is defined in 28 U.S.C. § 2680(h) as "any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law." 28 U.S.C. § 2680(h). The Supreme Court has held that a victim of unlawful conduct, at the hands of BOP officials, would have a cause of action against the United States under 28 U.S.C. 2680(h). See Carlson v. Green, 446 U.S. 14, 17, 20 (1980). Thus, as defined in § 2680(h), a BOP official is a federal law enforcement officer. Although Carlson relied on 28 U.S.C. § 2680(h), and not on 28 U.S.C. § 2680(c), the two sections should be considered in pari materia, and the holding of Carlson is therefore instructive in construing the term "law enforcement officer" under 28 U.S.C. § 2680(c).
We also find instructive the fact that BOP employees are considered "law enforcement officers" in various other contexts. Congress has determined that BOP employees are "law enforcement officers" for purposes of eligibility for Civil Service premium pay, for retirement benefits, and for survivorship annuities. See 5 U.S.C. §§ 5541(3), 8331(20) and 8401(17)(D)(I). BOP employees are also "law enforcement officers" whose surviving spouses and minor children may claim eligibility for "Public Safety Officers' Death Benefits." See 42 U.S.C. § 3796(b)(5). Additionally, one who fatally injures a BOP employee, while the employee is engaged in his official duties, can be charged with the offense of killing a "law enforcement officer", with the potential for a federal death penalty upon a finding of guilt. See 18 U.S.C. § 3592(c)(14)(D); 21 U.S.C. § 848(e)(2). Construing the FTCA's waiver of sovereign immunity strictly, we hold that BOP employees are "law enforcement officer[s]" for purposes of 28 U.S.C. § 2680(c).
[The Plaintiff] also argues that because the BOP's process of inspection and inventory before shipping a prisoner's property is not a search, seizure, or arrest, his property was not "detained" within the meaning of 28 U.S.C. § 2680(c). As the Sixth Circuit in Kurinsky v. United States, 33 F.3d 594, 597 (6th Cir. 1994), 28 U.S.C. § 2680(c) uses the word "detention", which is generally associated with a period of temporary custody or delay, and not "seizure", which is the act of taking possession of property, for example, by virtue of execution or for a violation of the law. Pursuant to the process of inspection and inventory, BOP officials took temporary custody of and detained [Plaintiff's] property. Resolving, as we must, any ambiguity in favor of sovereign immunity. Linkous, 142 F.3d at 275, we hold that there was a detention for purposes of 28 U.S.C. § 2680.Chapa, 339 F.3d at 390-391.
Based on the above reasons and case law, it is recommended that this claim be dismissed as plaintiff's claim is barred by the "detention of goods" exception set forth in 28 U.S.C. § 2680(c).
IV. CONCLUSION
For the reasons set forth herein, it is RECOMMENDED that defendant's motion for summary judgment be GRANTED. (Document #9).