Opinion
Civil Action No. 97-3411-CM.
February 27, 2001.
MEMORANDUM AND ORDER
Plaintiff Timothy Hatten, a federal inmate, filed in forma pauperis suit against current and former employees of the Federal Bureau of Prisons seeking relief for alleged tortious activity under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346 2671, et seq. Plaintiff also asserts claims against defendant employees in both their official and individual capacities for alleged constitutional violations in a Bivens action. In both claims, plaintiff seeks declaratory judgment and damages for the alleged mishandling of his property by staff at the United States Penitentiary in Leavenworth, Kansas (USPL), through their alleged premature application of a prison property regulation. Plaintiff also seeks relief in his Bivens action for the disciplinary actions taken against him related to his efforts to retain his personal property. Plaintiff is proceeding pro se. This matter is before the court on defendants' motion to dismiss or, in the alternative, for summary judgment (Doc. 25). As set forth below, defendants' motion is granted in part. Plaintiff's complaint is dismissed in its entirety.
Facts Plaintiff's Transfer to Florida
In accordance with the applicable summary judgment standards, the facts relayed are uncontroverted or related in the light most favorable to plaintiff, the non-moving party. Fed.R.Civ.P. 56.
Plaintiff is confined at the United States Penitentiary in Lewisburg, Pennsylvania. He was confined at USPL from December 20, 1994 until his transfer on a federal writ on October 31, 1995. While on writ, plaintiff was housed at the Federal Detention Center (FDC) in Miami, Florida. Plaintiff returned to USPL on March 6, 1996, where he remained until his transfer to Florida on August 21, 1997.
Prior to plaintiff's departure for the FDC, his personal property was inventoried on two inmate personal property records and the property placed in a secure storage area. While plaintiff was housed at FDC, he requested through his counsel there that his personal property be sent to him at FDC. Although plaintiff intended to have only his legal property forwarded to him, his counselor detailed the request as one for "his personal property." Plaintiff's request was granted and all of plaintiff's property in storage at USPL was mailed to FDC.
Program Statement — Policy No. 5580.04
In November 1995, the Federal Bureau of Prisons issued a new program statement on inmate personal property, No. 5580.04. The policy was effective upon its issuance. This new policy sharply reduced the amount of personal property inmates could retain. The policy's terms required each institution to "develop an Institution Supplement describing that institution's procedures regarding inmate personal property." Further, the policy required that a "copy of the Institution Supplement shall be forwarded for approval to the appropriate Regional Director prior to initial issuance or any change."
Defendants assert through the verified affidavits of defendants Justin Harsha, a Legal Instruments Examiner at USPL, Alex Fekete, a Unit Manager I at USPL, and Joe White, a former Inmate Systems Manager at USPL, that the Program Statement on personal property, No. 5580.04 was instituted at USPL in November 1995. However, plaintiff provides a copy of the first page of a document entitled "Institution Supplement" regarding "Personal Property of Inmates: Definition, Limitation, Disposal, Standards, and Contraband," dated June 8, 1996. This Supplement references policy No. 5580.04 as one of the directives covered in the supplement. No further evidence regarding this Institutional Supplement or its effect upon the implementation of policy No. 5580.04 has been provided to the court.
Plaintiff's Return to USPL
Upon plaintiff's return to USPL in March 1996, certain items of property could not be released to plaintiff based upon the guidelines in the Program Statement 5580.04. Upon plaintiff's arrival in Receiving and Discharge (R D) at USPL on March 8, 1996, defendant Harsha informed plaintiff of the new policy. Plaintiff refused to accept any of his property, and requested to speak with defendant White about the new policy. When plaintiff spoke with defendant White, he was informed that all of plaintiff's property would remain inventoried under the new guidelines.
Plaintiff refused numerous times to pick up his authorized personal property in the R D Department. On March 12, 1996, plaintiff was called to R D to review his personal property before it was issued to him. While the property was being separated plaintiff became irate with the Inmate Systems Officer, and plaintiff was ordered to leave the area. On March 21, 1996, plaintiff was again called to R D. When the officer attempted to issue the authorized property to plaintiff, plaintiff informed the officer that none of his property was going to be confiscated. Plaintiff was then ordered to leave RD.
On March 22, 1996, defendant Fekete, plaintiff's Unit Manager, spoke with plaintiff regarding his property. Defendant Fekete informed plaintiff he must pick up his property that day before 11:00 a.m. or the Inmate Systems Department would mail it out of the institution to a family member. Plaintiff became verbally abusive towards defendant Fekete.
Incident Reports
Following the March 22 encounter, defendant Fekete wrote an Incident Report charging plaintiff with being insolent to a staff member. Plaintiff was given advance written notice of the charge on March 22, 1996 at 1:45 p.m. The Incident Report was investigated, revealing the incident report was true as written based upon the facts within the report. Accordingly, the Incident Report was referred to the Unit Discipline Committee (UDC) and plaintiff was placed in the Special Housing Unit (SHU).
The UDC determined the Incident Report should be referred to the Discipline Hearing Officer (DHO) for further hearing. Plaintiff appeared before the DHO on March 28, 1996, and after considering the documentary evidence, the Incident Report, the investigation and a memorandum from Correctional Officer, S. Cooley, the DHO found plaintiff guilty as charged. The DHO report contains an accounting of the hearing. As sanctions, plaintiff received fifteen days of disciplinary segregation.
Plaintiff was issued a second Incident Report on March 22, 1996. This Incident Report charged plaintiff with refusing an order because plaintiff refused to remove his clothes for a strip search in SHU after twice being ordered to do so. Per policy, every inmate is strip searched upon placement into a secure unit, like SHU. Plaintiff was given advance written notice of the charge on March 23, 1996, at approximately 10:30 a.m. The Incident Report was investigated and a determination was made there was sufficient evidence to support the report as written. The report was forwarded to the UDC for further processing. The UDC met with plaintiff on March 26, 1996, and at that time plaintiff admitted that he had refused to remove his clothes. The UDC referred the incident to the DHO. The DHO hearing was held on March 28, 1996. Based upon the staff eyewitness account of the incident, the DHO found plaintiff guilty as charged. The DHO report contains an account of the hearing. As sanctions, plaintiff received fifteen days disciplinary segregation. Plaintiff was released from SHU to the general population on April 25, 1996.
Final Disposition of Plaintiff's Personal Property
Because plaintiff refused to pick up his property after three attempts, all property was mailed home, except his legal materials. Staff used the address provided by plaintiff on prison forms. Plaintiff had provided the name and address of his mother. Plaintiff's property was inventoried on two Inmate Personal Property Records and mailed via certified mail on March 29, 1996 to plaintiff's mother. Plaintiff's mother signed for the property on April 3, 1996.
Plaintiff exhausted all available administrative remedies regarding the alleged mishandling of his property by staff at USPL.
II. Pro Se Litigation
The court is mindful that plaintiff in this action appears pro se. A pro se litigant's pleadings are to be construed liberally and are held to a less stringent standard than formal pleadings drafted by lawyers. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Tenth Circuit has stated, "We believe that this rule means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Id. The court may not, however, assume the role of advocate for the pro se litigant. See Van Deelen v. City of Eudora, Ks., 53 F. Supp.2d 1223, 1227 (D.Kan. 1999).
Discussion
Defendants assert six separate arguments seeking dismissal and/or summary judgment. First, defendants assert the court lacks subject matter jurisdiction over plaintiff's claim against the defendants in their official capacities. Second, defendant White asserts that plaintiff's failure to personally serve him deprives the court of personal jurisdiction over White. Third and fourth, defendants assert entitlement to both qualified and absolute immunity. Fifth, defendants assert plaintiff fails to state a claim entitling him to relief, arguing plaintiff's claims are too conclusory. Finally, defendants claim they are entitled to summary judgment because plaintiff has not set forth evidence to establish any act or omission by any defendant that could establish a constitutional violation.
Motion to Dismiss 12(b)(1) Motion to Dismiss Standard
Pursuant to Rule 12(b)(1), facts outside the pleadings have been considered to determine the court's subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1); Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995)("A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not controvert the motion to a Rule 56 motion.").
Federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so. Castaneda v. Immigration Naturalization Serv., 23 F.3d 1576, 1580 (10th Cir. 1994). This court's jurisdiction is established by the United States Constitution and by acts of Congress. United States v. Hardage, 58 F.3d 569, 574 (10th Cir. 1995). "Federal courts have limited jurisdiction . . . and they are not omnipotent. They draw their jurisdiction from the powers specifically granted by Congress, and the Constitution, Article III, Section 2, Clause 1." Id. (citations omitted).
A party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper. Basso v. Utah Power Light Co., 495 F.2d 906, 909 (10th Cir. 1974). When federal jurisdiction is challenged, plaintiff bears the burden of showing why the case should not be dismissed. See Penteco Corp. v. Union Gas Sys., 929 F.2d 1519, 1521 (10th Cir. 1991) (noting because federal courts are courts of limited jurisdiction, there is a presumption against jurisdiction, and the party invoking federal jurisdiction bears the burden of proof) (citation omitted);
"A court lacking jurisdiction must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Scheideman v. Shawnee County Bd. of County Comm'rs, 895 F. Supp. 279, 280 (D.Kan. 1995) (citing Basso, 495 F.2d at 909); Fed.R.Civ.P. 12(h)(3).
Subject Matter Jurisdiction Over Plaintiff's Claims Against Defendants in an Official Capacity
Defendants seek dismissal of plaintiff's claims against defendants in their official capacity under Rule 12(b)(1), arguing the court lacks subject matter jurisdiction over these claims. The court construes defendants' motion to dismiss for lack of subject matter jurisdiction as seeking dismissal of plaintiff's FTCA claims against the defendants as employees of the United States and seeking dismissal of plaintiff's Fifth and Fourteenth Amendment claims against defendants in their official capacity.
Federal Tort Claims Act
Plaintiff filed suit against defendants, current and former USPL employees, under the FTCA. See 28 U.S.C. § 1346(b), 2671-2680. Under the FTCA, the United States is liable for money damages for personal injuries caused by a governmental employee acting within the scope of his employment "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b).
FTCA Claims Construed as Suit Against United States
Pursuant to § 2679(b)(1) and § 2679(d)(1) of the FTCA, the court construes plaintiff's FTCA claim as a claim against the United States, rather than the defendants in any individual capacity. Section 2679(b)(1) provides that the "remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property . . . 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 is exclusive of any other civil action or proceeding for money damages . . . Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee . . . is precluded. . . ." 28 U.S.C. § 2679(b)(1).
Section 2679(d)(1) provides that "[u]pon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States . . . and the United States shall be substituted as the party defendant."
The United States Attorney, pursuant to 28 U.S.C. § 2679 and by virtue of the authority vested in him by the Attorney General under 28 C.F.R. § 15.3, certified that defendants were acting within the scope of their employment as employees of the United States at the time of the incidents at issue here. (Defs' Motion, Ex. E). Further, plaintiff alleges that all defendants are employees of the USPL, that they are "being sued through [their] duly authorized employement (sic) of the U.S.," and that all defendants are "at all time (sic) being mention in this complaint, and he is affiliated with the USP Leavenworth, Ks." (P's complaint, p. 2). See Leddy v. United States Postal Serv., 525 F. Supp. 1053, 1054-55 (D.C. Pa. 1981) (absent allegation that post office employee was acting beyond scope of employment at the time of alleged motor vehicle accident, there was no cause of action under the FTCA against the employee and injured party's exclusive remedy was suit against United States).
Accordingly, pursuant to 28 U.S.C. § 2679, the court construes the FTCA claim as a claim against the United States and substitutes the United States as the sole defendant for the FTCA claim.
Sovereign Immunity
The court finds the United States has not waived its immunity to suit under the facts alleged by plaintiff. Sovereign immunity bars suits against the United States unless the government has expressly waived its immunity. Nat'l Commodity Barter Ass'n v. Gibbs, 886 F.2d 1240, 1245-46 (10th Cir. 1989). "A party suing the United States, its agencies or officers, must allege both a basis for the court's jurisdiction and a specific statute containing a waiver of the government's immunity from suit." Thomas v. Pierce, 662 F. Supp. 519, 523 (D.Kan. 1987) (citations omitted).
The FTCA waiver of sovereign immunity is jurisdictional in nature so that if the action is barred, the court lacks subject matter jurisdiction over plaintiff's claim. Bradley v. United States by Veterans Admin., 951 F.2d 268, 270 (10th Cir. 1991). Because the FTCA constitutes a waiver of the sovereign immunity of the United States, the court must strictly construe it in order to prevent expanding the waiver beyond what Congress intended. Pipkin v. United States Postal Serv., 951 F.2d 272, 275 (10th Cir. 1991).
The court finds the facts of this case, as alleged by defendant, fall within an exception to the FTCA's waiver of sovereign immunity. Section 2680(c) of the FTCA provides an exception to the waiver for "[a]ny claim arising in respect of . . . the detention of any goods or merchandise by any officer of customs or excise or any other law enforcement officer." 28 U.S.C. § 2680(c).
Plaintiff alleges prison officials wrongfully caused him the loss of his personal property by detaining his property and causing it to be sent to his home pursuant to an alleged premature application of prison regulations. As noted by this court in Johnson v. United States of America, several courts have found that lost property of federal prisoners falls within the meaning of "the detention of any goods or merchandise" under 28 U.S.C. § 2680(c). Johnson, No. 98-3092-KHV, 2000 WL 968795, * 3 (D.Kan. June 27, 2000). Here, the court finds that when defendants forwarded plaintiff's property to him while he was in Florida, when they subsequently refused to return the property to him in full upon his return to USPL, and when they decided to forward the property to plaintiff's home, the property was "detained" within the meaning of § 2680(c).
The court also finds that Bureau of Prison officials are "law enforcement officer[s]" under § 2680(c). As noted by the court in Johnson, every court to address the issue has held that prison officials are considered "other law enforcement officer[s]" under § 2680(c). Id.
The facts of this case fall within the § 2680(c) exception to the FTCA general waiver of sovereign immunity. Plaintiff has not shown that the government has waived its sovereign immunity to his claim. Therefore, the court lacks subject matter jurisdiction to hear the claim. Defendants' 12(b)(1) motion for lack of subject matter jurisdiction over claims against defendants under the FTCA is granted.
The court does not reach the additional arguments directed to plaintiff's FTCA claim based upon its finding that it lacks subject matter jurisdiction over plaintiff's claim.
Bivens Constitutional Tort Claims Against Defendants in Official Capacity
Plaintiff clarified in his amended complaint that he was seeking relief from defendants under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff alleges defendants violated his Fourteenth and Fifth Amendment rights by depriving him of his property without due process. Plaintiff does not set forth separate jurisdictional allegations for his constitutional tort claims. Plaintiff's only jurisdictional assertions relate to his FTCA claim, i.e., he asserts this court has jurisdiction over his claims pursuant to 28 U.S.C. § 1346(b) and 2671. (Pl.'s Compl. at 1).
Plaintiff appears to be suing defendants in both their individual capacities and in their official capacities as employees of the Federal Bureau of Prisons. To the extent that plaintiff seeks monetary damages from the defendants in their official capacities, the action must be construed as one against the United States. Kentucky v. Graham, 473 U.S. 159, 166 (1985).
As noted above, "[a] party suing the United States, its agencies or officers, must allege both a basis for the court's jurisdiction and a specific statute containing a waiver of the government's immunity from suit." Thomas, 662 F. Supp. at 523. The court has jurisdiction over Bivens actions pursuant to 28 U.S.C. § 1331. As argued by defendants in their motion to dismiss, however, the United States has not waived sovereign immunity in Bivens actions. F.D.I.C. v. Meyer, 510 U.S. 471, 483-86 (1994). Plaintiff has not established any waiver of immunity under the facts as alleged. Thus, plaintiff's claims against defendants in their official capacities are barred by the doctrine of sovereign immunity. See Pleasant v. Lovell, 876 F.2d 787, 793 (10th Cir. 1989). Defendants' 12(b)(1) motion for lack of subject matter jurisdiction over claims against them in their official capacities is granted.
Summary Judgment
The only claim that remains is plaintiff's Bivens action against defendants in their individual capacities.
A. Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut," rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
Procedural Due Process Claim
Plaintiff alleges that defendants' premature application of a prison property policy and defendants' decision to place him in administrative confinement while his property was forwarded out of the prison, violated his Fifth and Fourteenth Amendment rights to due process. Based upon plaintiff's complaint and his response to defendants' motion, the court construes his claim as a procedural due process claim.
"Procedural due process imposes constraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Pursuant to the Fifth and Fourteenth Amendment, prisoners may not be denied life, liberty or property without due process of the law. See id. at 333 (noting some form of hearing is required before an individual is deprived of protected interests); Wolff v. McDonnell , 418 U.S. 539, 556 (1974). "[D]ue process is flexible and calls for such procedural protections as the particular situation demands."
Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
"In determining whether an individual has been deprived of his right to procedural due process, courts must engage in a two-step inquiry: (1) did the individual possess a protected interest such that the due process protections were applicable; and if so, then (2) was the individual afforded an appropriate level of process." Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir. 1994).
1. Deprivation of Personal Property
Plaintiff has not established a taking sufficient to implicate due process. Whether plaintiff has a protectable property interest is determined by reference to state law. See Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569, 577 (10th Cir. 1996). Pursuant to Kansas law, when inmates are afforded the opportunity to possess personal property, they enjoy a protected interest in that property that cannot be infringed upon without due process. Stansbury v. Hannigan, 265 Kan. 404, 419-420, 960 P.2d 227, 237-38 (1998). When an inmate owns certain property, the ownership of that property may not be taken from him without due process of law. However, "there is a difference between the inmate's ownership rights in the property and the inmate's right to possess the property while in prison." Id.
Under this principle, where an inmate has been allowed to send property the inmate owns, but is not allowed to possess in prison, from the institution to an address of his own choosing, the inmate has not been deprived of the property so as to implicate the due process clause. See Williams v. Meese , 926 F.2d 994, 998 (10th Cir. 1991). Although plaintiff here was not allowed to retain all of his property due to application of a prison regulation, he was allowed to specify where it would be sent and did not lose ownership of the property. Therefore, the court finds there was no taking sufficient to implicate due process.
Accordingly, the court finds no genuine issue of material fact remains regarding plaintiff's procedural due process claims related to the deprivation of his personal property.
2. Deprivation of Liberty During Disciplinary Detention
"Lawfully incarcerated persons retain only a narrow range of protected liberty interests." Hewitt v. Helms, 459 U.S. 460, 467 (1983). Assuming the due process clause was implicated by plaintiff's confinement in SHU, plaintiff must establish that he did not receive all the process that was due.
The court finds adequate process was given related to plaintiff's disciplinary detention during the time period that defendants forwarded plaintiff's property out of the prison. An inmate who is subject to disciplinary charges that could potentially result in punitive segregation is entitled "at a minimum, to advance written notice of the charges against him and of the evidence available to the factfinder. He must be permitted to marshal the facts and prepare his defense. A written record of the proceedings must be kept. The inmate must be allowed to call witnesses and present documentary evidence in his defense." Patterson v. Coughlin, 761 F.2d 886, 890 (2d Cir. 1985) (citing Wolff v. McDonnell, 418 U.S. 539, 558 (1974)).
The sequence of events leading up to plaintiff's detention related to his actions on March 22, 1996 establish that plaintiff was provided with all process due. First, plaintiff was provided advance written notice of the charges against him. He was provided with written notice of the charges on March 22, 1996 at 4:45 p.m. and on March 23, 1996 at approximately 10:30 a.m. Second, it appears plaintiff was provided access to the evidence available against him. The Incident Reports contain the charging officer's account of the incident and recites the plaintiff's comments regarding the incident. Plaintiff has not asserted, nor produced evidence, to indicate he was not afforded access to such evidence. Finally, plaintiff was permitted to defend himself at the subsequent hearings and written records were kept related to the proceedings. Only following these procedures was plaintiff found guilty as charged and given sanctions for his actions. Accordingly, the court finds no genuine issue of material fact remains regarding plaintiff's procedural due process claims related to his administrative detention.
The court finds plaintiff may not maintain his claim for relief under the due process clause of the Fifth or Fourteenth Amendment. Defendants' motion for summary judgment related to plaintiff's Fifth and Fourteenth Amendment procedural due process claims is granted. Plaintiff's Fifth and Fourteenth Amendment procedural due process claims are dismissed.
Order
As the court has disposed of all of plaintiff's claims against all defendants, it finds it unnecessary to reach defendants' remaining arguments. Also, in his response (Doc. 27), plaintiff appears to ask the court to grant his motion to dismiss and summary judgment. No such motions are pending and even if they were pending, the court's ruling herein would render such motions moot.
IT IS THEREFORE ORDERED that defendants' motion to dismiss or, in the alternative, for summary judgment (Doc. 26) is granted in part. Plaintiff's motion to dismiss for lack of subject matter jurisdiction over plaintiff's FTCA claims and his Bivens claims against defendants in their official capacity is granted. These claims are dismissed from plaintiff's complaint. Further, defendants' motion for summary judgment relating to plaintiff's Bivens claims against defendants in their individual capacities is granted. These claims are dismissed from plaintiff's complaint. As no claims remain pending, plaintiff's complaint is dismissed in its entirety.
ADDRESS BIVENS ARGS. Bivens = jurisdiction? Official/individual capacity? Is sm jurisdictional statement sufficient?
Figure out whether sov. Immunity at issue here under bivens claim. . .
.
Plaintiff alleges violations of 14th and 5th amendment. . . .clearly a federal question under 1331. . . . . .query: must the plaintiff do more than allege the constitutional violation to show u.s. (Defendant's in an official capacity) have waived sov. Immunity and consented to suit. . . . . .
Federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so. See Castaneda v. I.N.S., 23 F.3d 1576, 1580 (10th Cir. 1994). The presumption is that a federal court lacks jurisdiction until it has been demonstrated. Basso v. Utah Power Light Co., 495 F.2d 906, 909 (1974). The party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper. See id. Therefore, the complaint in a federal case must demonstrate that a basis for federal jurisdiction is present. 10th Cir. Cite. See 671 F. Supp. 19 d. kan 1987 Where federal jurisdiction is challenged, plaintiff bears the burden of showing why the case should not be dismissed. See Outdoor Sys., Inc. v. City of Lenexa, No. 98-2534-KHV, 1999 WL 203461, *1 (D.Kan. April 6, 1999).
Challenges to jurisdiction under Rule 12(b)(1) generally take two forms: facial attacks on the sufficiency of jurisdictional allegations and factual attacks on the accuracy of those allegations. See Hold v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). Defendants' motion falls within the former category.
"A party suing the United States, its agencies or officers, must allege both a basis for the court's jurisdiction . . . and a specific statute containing a waiver of the government's immunity from suit." Thomas v. Pierce,
662 F. Supp. 519, 523 (D.Kan. 1987) (citations omitted).
Rule 8(a) requires a "short and plain statement" of jurisdictional grounds. Fed.R.Civ.P. 8(a). However, the allegations in the complaint must clearly show that jurisdiction exists. Compliance with Rule 8(a) is ascertained by looking at the entire complaint, not simply the purported jurisdictional statement. See Vukonich v. Civil Serv. Comm., 589 F.2d 494, 496 n. 1 (10th Cir. 1978) check this cite!! ( 496 F. Supp. 947, 948 (D.C. Ky. 1980).)
Federal smj = Constitutional and statutory basis for suit.
Section 1331 provides that "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. It is required of the plaintiff to identify, in the well-pleaded complaint, the "statutory or constitutional provisions under which the claim arises, and allege sufficient facts to show that the case is one arising under federal law." Martinez v. United States Olympic Committee, 802 F.2d 1275, 1280 (10th Cir. 1986). Plaintiff has not done this. However, "[f]ederal jurisdiction exists if the complaint states a case arising under federal law, even though on the merits the party may have no federal right." Mindes v. Seaman, 453 F.2d 197, 198 (5th Cir. 1971) (citing C. Wright, Law of Federal Courts 62 (2d ed. 1970)). If the claim is inadequate then judgment is properly rendered against the claimant on the merits — failure to state a claim upon which relief can be granted — rather than for want of jurisdiction. Id.
Although plaintiff has not adequately alleged federal jurisdiction in her complaint by formal pleading standards, she does clearly state that the claim she is asserting is based on an alleged violation of the Constitution — the Fifth and Fourteenth Amendments. Therefore, the case does appear to arise under the Constitution and/or federal law. Plaintiff should, nevertheless, allege that her claims arise under the Constitution, laws, or treaties of the United States.
Plaintiff has sued defendants in both an official and individual capacity. Suits against a government official in their official capacity are construed as suits against the government.
Gov't has sov. Immnity qu: is sov. Immunity a jurisdictional issue or a separate bar to suit?
To sue gov't immunity must be specifically waived
Here, plaintiff asserts jurisdictional basis for suit is 1331, Bivens, 1346(b), 2671.
Court finds none of these is basis for waiver of sov. Immunity. Do analysis.
Therefore, no smj over claims against defendants in official capacity. So dismissed w/o prejudice to state appropriate jurisdictional grounds. Individual cap. Suits continue.
Service of Process
Defendant White asserts that plaintiff's failure to serve him in compliance with Federal Rule of Civil Procedure 4(i) deprives this court of personal jurisdiction over him, and therefore, he seeks dismissal from this suit. Plaintiff, proceeding pro se, is entitled to rely upon the US Marshal service to effect process.To effectuate service on an officer or employee of the United States, sued in both an individual and an official capacity, Federal Rule of Civil Procedure 4(i) requires individual service upon the defendant in accordance with Rule 4(e), (f), or (g) and service upon the United States under Rule 4(i). See Fed.R.Civ.P. 4(i)(1) (2).
Plaintiff sued defendant White in both his official and individual capacities. Here, plaintiff has effected service upon the United States by serving a copy of the summons and the complaint via certified mail upon both the United States Attorney in the District of Kansas and upon the Attorney General of the United States at Washington, D.C. (Doc. 11). See F.R.C.P. 4(i)(A).
Plaintiff has not, however, effected service upon defendant White. Plaintiff requested the court appoint a United States Marshal as a process server for Joe White, providing his address as "USP Leavenworth, address Leavenworth, ks (sic) 66048-1000" (Doc. 3). In accord with Rule 4(c)(2), requiring appointment of a U.S. Marshal where plaintiff proceeds in forma pauperis, the court directed U.S. Marshals to effect service. The Clerk of the court issued a summons and waiver of service of summons regarding defendant White on September 30, 1998. The Summons was addressed to "Joe White, USP-Leavenworth, PO Box 1000, Leavenworth, KS 66048-1000." (Doc. 10). However, the U.S. Marshal filed a process receipt and return on October 20, 1998, certifying that they were unable to locate Joe White, as named on the summons. (Doc. 9). Attached to the receipt was a letter from a supervisory attorney at the US Penitentiary in Leavenworth, indicating Joe White was no longer employed at U.S. Penitentiary, Leavenworth.
The court does not reach the issue of whether service of process directed at defendant White's place of business is appropriate under Rule 4(e), through application of Rule 4(i)(1) (2).
Plaintiff, proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint. See Fed.R.Civ.P. 4(c)(2)(B)(i) and 28 U.S.C. § 1915(c). If the necessary information has been provided, the plaintiff will not be penalized with dismissal of the case when service fails because the Marshal or clerk's office does not perform the duties specified by rule and statute. See, e.g., Dumaguin v. Secretary of Health and Human Servs., 28 F.3d 1218, 1221 (D.C. Cir. 1994); Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir. 1993); Puett v. Blandford, 912 F.2d 270, 273-75 (9th Cir. 1990); Sellers v. United States, 902 F.2d 598, 602 (7th Cir. 1990); Fowler v. Jones, 899 F.2d 1088, 1095 (11th Cir. 1990). As noted by the Seventh Circuit, in the "case of a former prison employee, the plaintiff need only properly identify the employee: the Marshal's Service should be able to ascertain the individual's current address and complete service." Stewart v. McBride, No. 95-1316, 1995 WL 605498, *1-*2 (7th Cir. 1995).
Here, plaintiff did provide what he believed to be defendant White's work address, presumably the only location information plaintiff had regarding this defendant. Due to his incarceration, plaintiff's ability to find addresses for defendants is limited. Further, as noted by the Seventh Circuit in Sellers, prison guards do not want prisoners to have their home addresses and the "Bureau of Prisons is reluctant to tell prisoners even the current place of employment of their former guards." Sellers, 902 F.2d at 602. However, the Department of Justice, of which the U.S. Marshal Service is a branch, see 28 U.S.C. § 561, has means to learn the addresses of its employees and former employees for service purposes.
To serve the interests of defendant White in personal privacy and the interest of plaintiff in obtaining service, the court hereby adopts the procedure set out in Sellers and followed by a sister district in Colorado. See Bustillo v. Hawk, No. 97-WM-445, 1998 WL 299980, *5-*6, (D.Colo. May 28, 1998). Under this procedure, the clerk's office is directed to prepare a second summons form regarding defendant White and direct the U.S. Marshal's to compete service. As part of their duties, the Marshals shall obtain the last known home address for defendant White. The U.S. Marshal is directed to serve defendant White at this address. Defendant White's home address shall be safeguarded by the U.S. Marshal. The court need only be provided information on whether the individual has been served. If not served, any relevant contact information shall be provided to the Court in a sealed submittal. No addresses shall be provided to plaintiff concerning the location of defendant White. .
Defendant's motion to dismiss defendant White due to lack of service is denied.
[[[[Because no service, this court has not personal jurisdiction. . .cite Omni Capital Int'l, Ltd. v. Rudolf Wolff Co., Ltd., 484 U.S. 97, 104 (1987) (before court may exercise jurisdiction over a defendant, procedural requirement of service of summons must be met).
However, under Rule 4(i)(3). . .court shall allow plaintiff an additional 30 days to accomplish service upon defendant White in accordance with Rule 4(i). Where no service is accomplished within thirty days following entry of this order, defendant White shall be dismissed as a defendant in this action. ]]]] As presently stated, these allegations lack the specificity required to survive a motion to dismiss on immunity grounds.
(12(b)(2)-court's ability to exercise its power over an individual for the purpose of adjudicating his rights and liabilities stemming from a particular transaction or event))
Motion to Dismiss Standard
The court notes that because all claims have been dismissed based upon defendants' motion to dismiss, the court finds application of Rule 56 summary judgment standards unnecessary. Accordingly, the court has reached the decisions herein on the sole basis of mtd standards, without consideration of defendants' assertions of uncontroverted fact, or the exhibits attached to the papers.
Even under the liberal pleading standards applied to pro se litigants, "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based."
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
C. Qualified Immunity
Defendants assert the affirmative defense of qualified immunity. Qualified immunity protects "government officials performing discretionary functions from individual liability under 42 U.S.C. § 1983 unless their conduct violates 'clearly established statutory or constitutional rights of which a reasonable person would have known.'" Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1255 (10th Cir. 1998) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Mick v. Brewer, 76 F.3d 1127, 1134 (10th Cir. 1996). The qualified immunity defense applies equally to both §§ 1983 actions and to Bivens actions. See Mick, 76 F.3d at 1134 n. 4 (citing Davis v. Scherer, 468 U.S. 183, 194 n. 12 (1984)).
When a government defendant pleads the defense of qualified immunity, the plaintiff must "show (1) that the defendant's actions violated a constitutional or statutory right, and (2) that the right allegedly violated was clearly established at the time of the conduct at issue." Id. at 1134 (quotation omitted). To show that a right is clearly established, a plaintiff must identify either a Supreme Court or Tenth Circuit decision on point, or show that the clearly established weight of authority from other circuits supports the plaintiff's view of the law. See Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 516 (10th Cir. 1998). For a federal official's conduct to give rise to Bivens liability, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. See Anderson v. Creighton, 483 U.S. 635, 640 (1987). That is, in light of pre-existing law, the unlawfulness of defendants' actions must be apparent. If the plaintiff fails to identify the specific constitutional right at issue or the specific conduct of the defendant that violated that right, the court must grant the defendant qualified immunity. See Baptiste, 147 F.3d at 1256.
In this case, plaintiff alleges that defendants allegedly premature application of a prison property regulation to deprive him of his property upon his return to USPL violated his constitutional rights to due process of law under the Fifth and Fourteenth Amendments. Plaintiff has not come forth with any precedent to establish that the right, as alleged, was clearly established at the time of the defendants' actions. Recognizing this is a pro se prisoner plaintiff, however, the court has examined case law to determine if such right was clearly established.
Even assuming, as plaintiff alleges, defendants applied the prison property regulation to him before it was in effect at the prison, the court can find no precedent establishing that plaintiff had a clearly established right to have his property returned to him following his return to USPL from the Florida facility. Although generally, plaintiff has a right to due process of law before deprivation of his property (cite), the court examines whether under the current state of the law, a reasonable prison guard in defendants' position could have concluded that denying plaintiff access to his property was lawful.
Examining the facts as alleged by plaintiff, the court finds plaintiff did not have a clearly established right to the return of his property upon his return to USPL. Prisoner's rights to their property are limited. Cite re: prisoner's rights to their property / right to not be deprived of property w/o due process of law. . . . .
While inmates cannot be denied a minimal civilized measure of care, they do not have a clearly established right to receive their preferred course of treatment. Malsh v. Austin, 901 F. Supp. 757, 765 (S.D.N., Y. 1995). It follows, that limited property rights. . . .no right to receive their property in preferred course. . . . .
Plaintiff is unable to establish that the right, as alleged, was clearly established at the time of the defendants' actions, and that, therefore, the defendants should have understood that what they were doing violated plaintiff's rights. Based upon this, the court finds it was reasonable for defendants to deny plaintiff his property upon his return to USPL. Accordingly, defendants are entitled to qualified immunity.
Failure to State a Claim — 12(b)(6)
Issue: Whether USPL's application of a prison property regulation to plaintiff (and others in USPL) prior to its formal adoption (by issuance of institution statement) violates plaintiff's procedural due process rights. Find case law re: prisoners right to procedural due process .
1) Does p have protected property right? Is it protected in a limited manner under 14th and 5th A? .
2) was the appropriate level of process afforded? I.e. before the regulation was applied to him? 1) Does p have protected liberty right to be free from incarceration in SHU? 2) was the appropriate level of process afforded? I.e., before he was placed in confinement in connection with his actions regarding refusal to comply with property regulation .
Even assuming plaintiff had made allegations sufficient to constitute a taking and implicate due process, the court finds adequate process was given related to the deprivation of his personal property. Plaintiff alleges the premature application of a prison property policy violated his rights to procedural due process.
Whether sufficient process has been provided requires a balancing of the respective interests of the parties and the risk of erroneous deprivations. See Mathews v. Eldridge , 424 U.S. 319 (1976). The court must decide what process is due, as "due process is flexible and calls for such procedural protection as the particular situation demands." Morrissey v. Brewer , 408 U.S. 471, 481 (1972). Due Process requires no more than notice and the post-deprivation grievance process. Myers v. Klevenhagen, 97 F.3d 91, 95-96 (5th Cir. 1996) (notice and adequate post-deprivation remedy); Reynolds, 936 F. Supp. at 1227 (same); Scott v. Angelone, 771 F. Supp. 1064, 1067 (D.Nev. 1991) (no due process violation where money for medical charges deducted from inmate's account).
The procedural protections required by the Due Process Clause are determined with reference to the particular rights and interests at stake in a case. Washington v. Harper , 494 U.S. 210, 229 (1990). The factors to be considered are the private interests at stake, the governmental interests, and the value of procedural requirements in that particular context. Id. (citing Mathews v. Eldridge , 424 U.S. 319, 335 (1976)).