Opinion
C. A. 5:23-513-DCC-KDW
04-24-2023
Tymon Wells, Plaintiff, v. United States of America, Defendant.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Tymon Wells (“Plaintiff”), proceeding pro se and in forma pauperis, is an inmate currently incarcerated at USP Lee in the custody of the Federal Bureau of Prisons (“BOP”). He filed this federal tort claims action against the United States of America concerning the loss of his personal property. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this matter has been referred to the undersigned for all pretrial proceedings. For the reasons that follow, the undersigned recommends that the district judge dismiss this case without prejudice and without issuance and service of process.
I. Factual and Procedural Background
Plaintiff asserts a federal tort claim act claim against employees at Federal Correctional Institution (“FCI”) Williamsburg, in Salters, South Carolina concerning the loss of his photo album and photographs. ECF No. 1. Plaintiff alleges FCI Williamsburg employees improperly confiscated his photo album and negligently lost his album and photographs when he was transferred to USP Lee in Virginia. Id.
II. Discussion
A. Standard of Review
Plaintiff filed his Complaint pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss a case upon a finding that the action fails to state a claim on which relief may be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A finding of frivolity can be made where the complaint lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings 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. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
Plaintiff filed this federal tort claim action seeking to recover monetary damages related to the loss of his photo album and photographs. ECF No. 1. Plaintiff claims on April 21, 2021, he was placed in the special housing unit pending a transfer. Id. at 2. Plaintiff says FCI Williamsburg Officer K. Arens confiscated his photo album, which included 717 personal photos, and 203 $1 postage stamps. Id. Plaintiff alleges Arens told him his album was considered contraband because it contained metal extensions. Id. at 3. Plaintiff alleges he told Arens the album could not be considered contraband because he purchased the album and inserts from the BOP commissary. Id. Plaintiff contends Arens did not care and told him his photographs were disgusting. Id. Plaintiff says later that day Lieutenant Bell took photographs of the alleged contraband and confiscated Plaintiff's photo album. Id. Plaintiff claims he again explained the album was purchased through the BOP commissary and every time the album had been previously seized by prison officials the album had been returned. Id. Plaintiff claims Bell responded by telling Plaintiff they “would make certain [you] never see your pictures again.” Id. at 4. Plaintiff says he has transferred from FCI Williamsburg on June 8, 2021, and at that time he was given 170 family photographs from his album. Id. Plaintiff alleges when he arrived at USP Lee staff informed him the rest of his photos would be shipped later. Id. Plaintiff says he submitted a complaint for loss of personal property in January 2021 and May 2022 and the matter was assigned to L. Crane for investigation. Id. Plaintiff claims Crane completed his investigation and told Plaintiff he never indicated a desire to have his personal photographs shipped home. Id. Plaintiff contends Crane falsified the investigation as he was never told by BOP staff he had the option of mailing his photographs or photo album home. Id.
“As a sovereign, the United States is immune from all suits against it absent an express waiver of its immunity.” Welch v. United States, 409 F.3d 646, 650 (4th Cir.2 005). The Federal Tort Claim Act (“FTCA”), which is codified at 28 U.S.C. § 2671 et seq., creates a limited waiver of sovereign immunity so that the United States is liable, as a private person, 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.” 28 U.S.C. § 1346(b)(1). However, the FTCA does not waive sovereign immunity for “claims stemming from 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). Section 2680(c) also preserves sovereign immunity for torts committed by all federal law enforcement officers including officers employed by the BOP. See Ali v. Fed. Bureau of Prisons, 552 U.S. 214 (2008). Therefore, Plaintiff's claims concerning the mishandling of his personal property by BOP officials are subject to dismissal. See Mathis v. U.S., C/A No. 8:05-3000-MBS, 2008 WL 2922798 (D.S.C. July 24, 2008) (explaining plaintiff's FTCA claim that prison officials were negligent in transferring his personal property was subject to dismissal under Section 2680(c)); Perkins v. Deboo, C/A No. 1:08-cv-00225, 2009 WL 1650443 (N.D. W.Va. June 11, 2009) (dismissing Plaintiff's FTCA claim for reimbursement for lost personal property based upon the holding in Ali, 552 U.S. 214 and 28 U.S.C. § 2680(c)). To the extent Plaintiff argues his personal property was intentionally destroyed by FCI Williamsburg officers, this claim is also subject to summary dismissal. The allegations in Plaintiff's Complaint are related to the inspection and inventorying of his personal property, accordingly, there is no waiver of sovereign immunity even if the FCI Williamsburg employee's possession of the property is “tortious” and “wrongful.” Krug v. United States, 442 Fed.Appx. 950, 951 (5th Cir.2011); see also Gasho v. U.S., 39 F.3d 1420, 1433-34 (9th Cir. 1994) (holding the exception to the waiver of immunity provided in § 2680(c) is applicable to alleged intentional detention or mishandling of property). The undersigned recommends Plaintiff's Complaint be summarily dismissed.
Plaintiff's Complaint is also subject to summary dismissal as there is no indication in the Complaint that he fully complied with the administrative claim requirement. Plaintiff may not sue a federal agency for negligence without first complying with the exhaustion requirements of the FTCA by filing an administrative claim. 28 U.S.C. § 2675. It is well-settled that the requirement of filing an administrative claim is jurisdictional and may not be waived. Kielwien v. United States, 540 F.2d 676, 679 (4th Cir.1976).
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends that the court dismiss the Complaint without prejudice and without issuance and service of process.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. [I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).