Opinion
No. 5:20-CV-489-BO
10-27-2020
TIMOTHY H. LINDSEY, Plaintiff, v. BRYAN KONIG, et al., Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
This matter is before the court on Plaintiff's application to proceed in forma pauperis [DE-1] and for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs, and the application to proceed in forma pauperis is allowed. However, it is recommended that the complaint be dismissed.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) "to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims"). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) ("Examples of frivolous claims include those whose factual allegations are 'so nutty,' 'delusional,' or 'wholly fanciful' as to be simply 'unbelievable.'"). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes "fantastic or delusional scenarios." Id. at 327-28.
In determining whether a complaint is frivolous, "a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiff's allegations." Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Id. "The word 'frivolous' is inherently elastic and not susceptible to categorical definition . . . . The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim." Nagy v. Fed Med Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may "apply common sense." Nasim v. Warden., Md House o/Correction, 64 F.3d 951, 954 (4th Cir. 1995).
In order to state a claim on which relief may be granted, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level . . ." Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id.
In the present case, Plaintiff is proceeding pro se, and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). This court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required "to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
II. ANALYSIS
A. Background
Plaintiff alleges that jurisdiction is based upon the Federal Tort Claims Act ("FTCA"). Compl. [DE-1-1] at 2; see 28 U.S.C. § 1346. The complaint states that Plaintiff surrendered to the United States Marshals on November 9, 2018. Compl. [DE-1-1] at 2. Plaintiff asked Defendant Konig, a Deputy US Marshal, to retrieve his car, a 2006 Toyota Avalon, and give it to Travis Hodges at the federal halfway house. Id. Konig agreed, but when Plaintiff went to court on January 25, 2019, Konig informed him that he had given Plaintiff's car to Plaintiff's father at the house where he had surrendered. Id. Plaintiff alleges that he purchased the car on November 3, 2018, and he seeks $6,000 in damages, the amount he paid for the vehicle. Id.
B. Discussion
Under the FTCA, the United States waives sovereign immunity for "the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1); see Millbrook v. United States, 569 U.S. 50, 52 (2013); Levin v. United States, 568 U.S. 503, 506 (2013); Anderson v. United States, 669 F.3d 161, 164 (4th Cir. 2011); Kerns v. United States, 585 F.3d 187, 194 (4th Cir. 2009). The FTCA provides the exclusive remedy for common law negligence claims against federal employees acting within the scope of their employment. See 28 U.S.C. §§ 1346, 2671-80; see also Alfa v. United States, No. PJM 14-1773, 2015 WL 501969, at *1 (D. Md. Feb. 3, 2015) ("[N]o state common law action—such as a tort styled 'premise liability'— can be asserted against the United States, since the FTCA subsumes all such claims 'for injury or loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.'") (quoting 28 U.S.C. § 1346(b)(1))).
Although Plaintiff states that jurisdiction is based upon the FTCA, he has not brought his claim against the proper defendant. "[T]he court lacks jurisdiction over a FTCA claim against defendants other than the United States." Carter v. Pellicane, No. 3:19-104-CMC-SVH, 2019 WL 8012206, at *3 (W.D.N.C. Nov. 6, 2019). Plaintiff has not named the United States as a defendant, so it is recommended that his claim be dismissed without prejudice. See id. (holding that the plaintiff did not correctly name the United States as a defendant for her FTCA claim where she named individual Marshals); Woods v. Cnty. of Wilson, No. 5:10-CT-3118-BO, 2012 WL 777152, at *3 (E.D.N.C. Mar. 8, 2012) (holding that an FTCA claim "must be brought against the United States of America") (citation omitted); Graham v. Stansberry, No. 5:07-CT-3015-FL, 2008 WL 3910689, at *8 (E.D.N.C. Aug. 20, 2008) ("Even if plaintiff had alleged a claim pursuant to the FTCA, he would be unable to proceed on that claim because he has not named the proper party. The proper party for a suit brought under the FTCA is the United States of America.").
Alternatively, Plaintiff has not alleged that he has exhausted his administrative remedies.
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.28 U.S.C. § 2675(a). Here, Plaintiff has not alleged that he has filed an administrative claim against the United States Marshals Service. Accordingly, it is recommended that his claim be dismissed without prejudice for failure to allege exhaustion of administrative remedies. See Carter, 2019 WL 8012206, at *3 (alternatively dismissing for failure to exhaust when the USMS submitted an affidavit stating that the plaintiff did not file an administrative claim before bringing an FTCA suit).
Because Plaintiff has failed to name the proper defendant and has not alleged exhaustion of administrative remedies, he cannot proceed under the FTCA, but the court will consider whether Plaintiff has sufficiently pled a Bivens claim. See Zimmerman v. Andrews, No. 5:18-CT-3167-D, 2019 WL 7597026, at *1 (E.D.N.C. Apr. 12, 2019) (construing a pro se complaint as proceeding under the FTCA and Bivens even though the complaint referenced only the FTCA), adopted by 2019 WL 4855554 (E.D.N.C. Sept. 30, 2019), aff'd in part, appeal dismissed in part, 815 F. App'x 747 (4th Cir. 2020). Bivens provides a private cause of action against a federal officer based on a Constitutional violation. Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971).
Plaintiff states that Defendant Konig gave Plaintiff's vehicle to Plaintiff's father when Plaintiff had instructed Konig to give it to Travis Hodges. Compl. [DE-1-1] at 2. From the facts alleged, it is not clear how Defendant Konig's actions may have violated Plaintiff's constitutional rights. Plaintiff does not allege that the initial seizure of the car was unreasonable under the Fourth Amendment, that the car was taken without due process of law in violation of the Fifth Amendment's Due Process Clause, or that it was converted to public use without just compensation in violation of the Fifth Amendment's Takings Clause. See United States v. Norwood, 602 F.3d 830, 836 (7th Cir. 2010) (holding that Bivens was the improper avenue for "damages suits to be brought against federal law enforcement officers accused of having improperly disposed of a criminal suspect's property"). Accordingly, it is recommended that the complaint be dismissed without prejudice.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until November 10, 2020, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
Submitted, this the 27 day of October, 2020.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge