Opinion
CIV-21-33-F
10-15-2021
MIGUEL MARTINEZ, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
REPORT AND RECOMMENDATION
GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a federal prisoner, brings this action pursuant to the Federal Tort Claims Act (“FTCA”). Before the Court is Defendant's Motion to Dismiss, Doc. No. 24, to which Plaintiff has filed a Response. Doc. No. 28. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Motion to Dismiss be granted.
I. Plaintiff's Allegations
This case arises out of events that occurred while Plaintiff was confined at the Federal Correctional Institution (“FCI”) located in El Reno, Oklahoma. Doc. No. 1 at 1. Plaintiff asserts that based on FCI officials' negligence and failure to follow protocol, several pieces of valuable personal property, totaling over $4800.00 in value, were stolen from his cell. Id. at 2-7.
On March 12, 2020, at approximately 5:15 a.m., Plaintiff was awakened by two inmates who entered his cell and struck him repeatedly. Id. at 2. One of the inmates held a knife and warned Plaintiff that he had until 6:00 a.m. to “get off the yard.” Id. Plaintiff immediately left his cell in order to get help, but the unit officer was not in his office. Id. Plaintiff returned to his cell, “secured his property in his locker with an institution-issued Master lock, ” and went to Special Investigative Services (“SIS”) at 6:00 a.m. when it opened. Id. He reported the incident and officials placed him in the Special Housing Unit (“SHU”) for protection. Id. at 2-3.
Approximately one month later, Plaintiff learned that when officials went to “pack out” his property in his cell, many valuables were missing. Id. at 3. Officer Cooper informed Plaintiff the property had been stolen because “it had not been properly guarded by officials who ‘packed it out' in the housing unit.” Id. In spite of the fact that Plaintiff had been moved to SHU at approximately 6:00 a.m. or shortly thereafter, the Property Sheet stored with his remaining property showed that his property had not been packed out until sometime during the 4:00 p.m.-12:00 a.m. late shift. Id. Officer Harvey, who had packed out Plaintiff's property, told him that it should have been done by either Officer Krey, who was on duty when the assault on Plaintiff had occurred, or Officer Fenton, who worked the 8:00 a.m.-4:00 p.m. shift on March 12, 2020. Id. Officer Harvey explained that “protocol dictated that SIS Officer Holland should have immediately contacted the unit officer on duty to direct that Plaintiff's cell and property be secured at the time of Plaintiff's report.” Id.
Plaintiff's cellmate on March 12, 2020, informed Plaintiff that when he retuned to the cell at some point on that date, someone had already broken into Plaintiff's locker and stolen various items therein. Id. at 3-4. He observed several inmates holding Plaintiff's property. Id. at 4. Plaintiff asserts that “a large amount of [his] personal photographs and property were stolen due to the failure of prison officials to secure Plaintiff's property in accordance with procedure.” Id.
Based on these allegations, Plaintiff asserts a claim under the FTCA as well as a state law claim of conversion. Id. at 7-8. He is seeking compensatory “and all available damages” resulting from the loss of his property. Id. at 8. Defendant has filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) arguing the Court does not have subject matter jurisdiction over Plaintiff's FTCA. Doc. No. 24. Defendant contends the FTCA creates an exception to the federal government's waiver of sovereign immunity for claims arising from the detention of property by any law enforcement officer. Id. at 4-9.
II. Standard of Review
Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate when the Court lacks subject matter jurisdiction over the claims asserted in the complaint. As set forth by the Tenth Circuit, the standard of review for a Rule 12(b)(1) motion is as follows:
Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true.
Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. 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 convert the motion to a Rule 56 motion.Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995) (citations omitted).
The burden of establishing subject matter jurisdiction rests on the party asserting jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002).
III. FTCA Claim
In the FTCA, Congress waived the United States' sovereign immunity for claims arising out of torts committed by federal employees. 28 U.S.C. § 1346(b)(1). As relevant here, the FTCA authorizes “claims against the United States, for money damages . . . 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.” Id. The FTCA exempts from this waiver certain categories of claims, including an exception providing that § 1346(b) shall not apply to “[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer.” 28 U.S.C. § 2680(c).
The Supreme Court has specifically ruled that “any other law enforcement officer” encompasses federal prison officials. Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 227-28 (2008). In Ali, the Court held the actions of corrections officers who are accused of mishandling an inmate's property fall within the FTCA's exception to the United States' waiver of sovereign immunity for claims arising from the detention of goods by “any other law enforcement officer.” Id. Therefore, some claims brought by incarcerated persons pursuant to the FTCA sounding in tort and involving prisoner property are indeed subject to dismissal at preliminary stages on grounds of sovereign immunity.
Relying on Ali, and similar cases, Defendant seeks dismissal of Plaintiff's FTCA claim based upon sovereign immunity, arguing this Court does not have subject matter jurisdiction over the same. Doc. No. 24 at 4-9 (citing, inter alia, Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1213-14, abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007) (holding that 28 U.S.C. § 2680(c) bars a prisoner's claim to recover for lost personal items that were detained by officers when the inmate was placed in the SHU); Hatten v White, 275 F.3d 1208, 1210 (10th Cir. 2002) (holding § 2680(c) applies when prisoner alleges officers detained property and mailed it outside prison).
In his Response, Plaintiff argues that his factual allegations are distinguishable from the cases upon which Defendant relies because he is not claiming his property was lost during an officials' physical detention of the same. Instead, Plaintiff is asserting officials were negligent by failing to follow protocol and not taking his property into custody until after items were already stolen. Doc. No. 28 at 3.
[Plaintiff] makes it clear that prison officials demonstrated no intention to detain or to be in custody of the property or even to imply the same. Additionally, the Plaintiff was placed in the SHU at 5:15 am. The property was not secured, detained, in custody and/or inventoried until at least 16 hours or two complete shift changes later, 6 pm that evening. Prison officials never took appropriate steps that may imply detaining or having the property in their custody .... Throughout the [C]omplaint[, ] the Plaintiff made clear that no affirmative actions were taken in furtherance of detaining or taking custody of the property by the prison officials. This is supported by
statements made by prison officials' own admittance, demonstrating the neglect and their failing to follow required BOP protocol.Id. at 4-5.
Plaintiff's point is well taken. His case is distinguishable from many of those upon which Defendant relies as here, no FCI official ever had physical detention of Plaintiff's property prior to it being stolen. Thus, this Court must look to the application of § 2680(c) throughout other court decisions to determine its effect on Plaintiff's claim.
As a general matter, the Supreme Court reads the § 2680(c) exception to apply broadly to “any claim arising out of” the detention of goods. Kosak v. United States, 465 U.S. 848, 854 (1984).
[W]e think that the fairest interpretation of the crucial portion of the provision is the one that first springs to mind: “any claim arising in respect of” the detention of goods means any claim “arising out of” the detention of goods, and includes a claim resulting from negligent handling or storage of detained property.Id.
Since the Kosak decision, the Tenth Circuit has interpreted § 2680(c) quite expansively. In Walkner v. United States, 43 Fed.Appx. 340 (10th Cir. 2002), the court explained,
In Kosak [], 465 U.S. [at] 852-53 [], the Court rejected the argument that § 2680(c) exempts from the FTCA's waiver of sovereign immunity “only claims [] for damage caused by the detention itself”
and that the FTCA waiver thus does not apply to the negligent destruction of property. Following Kosak, “[t]he courts have interpreted section 2680(c) to bar claims premised on essentially any injury to property sustained during its detention.” United States v. Bein, 214 F.3d 408, 415 (3d Cir. 2000).Id. at 342. In Walkner, the plaintiff alleged that a corrections officer removed paintings from his cell during an institution-wide “shake-down.” Id. at 341. Prison officials told the plaintiff that they would mail the paintings to a person whom he designated. Id. However, that person never received them. Id. The Tenth Circuit affirmed the district court's ruling that § 2680(c) applied to the plaintiff's claim. Id. at 342.
Although Walkner makes clear the Tenth Circuit interprets § 2680(c) expansively, the facts remain distinguishable from the current case because the law enforcement officers in that case clearly had custody of the property prior to its disappearance. Id. at 341-42. Nevertheless, courts applying § 2680(c) have consistently noted the broad nature of the exception. See Ramirez v. Reddish, No. 2:18-cv-00176-DME-MEH, 2020 WL 1955366, at *34 (D. Utah April 23, 2020) (“As a general matter, the Supreme Court reads this exception to apply broadly to “any claim arising out of” the detention of goods.” (citing Kosak, 465 U.S. at 854; LeMarca v. United States, 34 F.Supp.3d 784, 795 (N.D. Ohio 2014) (“[T]he scope of the detention of goods exception is broadly construed and applies to the loss, theft, or negligent handling of the seized property.”); Green v. United States, No. 1:18 cv 631, 2020 WL 1312941, at *6 (E.D. Tex. Feb. 28, 2020) (noting detention for purposes of § 2680(c) includes possession that “was unauthorized, tortious, or wrongful”), adopted by 2020 WL 1309994 (E.D. Tex. Mar. 19, 2020)).
The Tenth Circuit's decision in Brown v. United States, 384 Fed.Appx. 815, 818 (10th Cir. 2010), also relied upon by Defendant, presents factual allegations that while distinguishable are nevertheless instructive in the present case. In Brown, the plaintiff alleged that a Bureau of Prisons (“BOP”) lieutenant opened the plaintiff's storage locker, allowed other prisoners to steal some of the property therein, and then confiscated the rest. Id. at 817. The plaintiff argued § 2680(c) did not apply to his subsequent FTCA claim because the BOP officer never actually “handled” the property that was stolen. Id. at 818. The Tenth Circuit rejected this argument.
Mr. Brown's singular focus on the officer's failure to touch his property before allowing other prisoners access to it improperly equates “handle” with “detain.” Mr. Brown alleged that a BOP officer tasked with detaining his property used a key to open his storage locker. At that point the BOP officer was exercising a measure of dominion over Mr. Brown's property such that it was within the officer's custody. Mr. Brown alleged the officer then wrongfully permitted other inmates to rifle through the locker and steal some of his property. His allegations fall squarely within the scope of a claim for wrongful detention of property under § 2680(c).Id.
Here, similar to Brown, Plaintiff, having been transferred to SHU, no longer had primary custody or dominion over his personal property. The only party who could have lawfully accessed his property at that time was a FCI official, although no official physically handled it prior to other inmates stealing the same. In that sense, the FCI officials had dominion over Plaintiff's property, though they were negligent in their handling of the same.
In Rodriguez v. United States, No. 5:18-cv-431-Oc-39PRL, 2019 WL 3958282 (M.D. Fla. Aug. 22, 2019), the plaintiff, a federal prisoner, alleged unknown officers moved him to SHU because his life was in danger. Id. at *1. The plaintiff asserted that prior to leaving his cell, he secured his belongings in his personal locker with the lock he purchased from the commissary. Id. the plaintiff further alleged:
Officers did not permit Plaintiff to return to his cell to pack his belongings. Instead, Plaintiff was informed the unit officer would ensure his property was properly inventoried and packed. After Plaintiff's relocation, he did not receive his personal property back. Plaintiff alleges other inmates broke into his locker and stole what was inside. He also claims the prison officials did not inventory his property or provide him with a property form, contrary to prison policy.Id. (citations omitted). The plaintiff brought a claim under the FTCA alleging that corrections officers “negligently failed to secure his personal property, resulting in its loss or theft.” Id. at *1.
The defendant requested dismissal of the plaintiff's claim arguing the court did not have subject matter jurisdiction pursuant to 28 U.S.C. § 2680(c). Id. at *2. The court agreed, explaining.
Plaintiff alleges he entrusted BOP officers to secure, pack, and inventory his personal property while he was being relocated, but his property was lost or stolen. Because the United States has not waived its sovereign immunity as to claims arising from the detention of property by law enforcement officers of the BOP, Plaintiff's claim is not cognizable under the FTCA. The Court, therefore, lacks subject matter jurisdiction, and the complaint must be dismissed.Id. (citations, quotations, and alterations omitted).
In light of the broad nature of the Supreme Court and Tenth Circuit's application of § 2680(c), the Court agrees with the reasoning of Rodriguez and finds the exemption applies to Plaintiff's FTCA claim. Following Plaintiff's transfer to SHU, he no longer exercised dominion over his property. The only parties who did were FCI officials. As illustrated in Brown, physical handling of the subject property is not necessary to trigger § 2680(c). Brown, 384 Fed.Appx. at 818. Once Plaintiff was transferred, his property was in the custody of the FCI officials. Thus, his claim falls within the FTCA's exception to the United States' waiver of sovereign immunity for claims arising from the detention of goods by any law enforcement officer. Accordingly, this Court does not have subject matter jurisdiction over Plaintiff's claim and Defendant's Motion should be granted.
IV. State Law Claim
Plaintiff also asserts a state law claim of conversion. Doc. No. 1 at 7. Although not addressed by Defendant's counsel, because Plaintiff has not asserted a viable federal claim herein and has not alleged or established any basis for jurisdiction for this claim other than supplemental jurisdiction, this Court should decline to exercise supplemental jurisdiction over Plaintiff's state-law claim. 28 U.S.C. § 1367(c)(3); cf., Smith v. City of Enid ex rel. Enid City Comm'n, 149 F.3d 1151, 1156 (10th Cir. 1998) (“When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims.”).
RECOMMENDATION
Based on the foregoing findings, it is recommended Defendant's Motion to Dismiss (Doc. No. 24) be GRANTED and judgment be entered in Defendant's favor on Plaintiff's FTCA claim based upon this Court's lack of subject matter jurisdiction. Additionally, the Court should decline to exercise supplemental jurisdiction over Plaintiff's state law claim of conversion.
Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by November 5th, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.