Valencia v. Department of Interior, Washington, DC et al (MAG+)

Filing 50

ORDER as follows: 1) Valencia's objections (doc. 43 ) are overruled; 2) ADOPTING 38 Report and Recommendations; 3) Defendants' Motion to Dismiss (doc. 18 ) is granted; and 4) All other motions are denied as moot. Signed by Honorable William Keith Watkins on 10/7/08. (Attachments: # 1 appeals checklist)(vma, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION T E R E S A VALENCIA, P l a in tif f , v. DEPARTMENT OF INTERIOR, W A S H IN G T O N , DC, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) )

C A S E NO. 3:08-CV-69-WKW [WO]

ORDER O n August 5, 2008, the Magistrate Judge filed a report and recommendation in this c a se . (Doc. # 38.) Plaintiff Teresa Valencia ("Valencia") objected to portions of the re c o m m e n d a tio n on September 2, 2008 (Doc. # 43), but also filed a notice of appeal of the M a g is tra te Judge's recommendation pursuant to 28 U.S.C. § 1292 (Doc. # 45). Despite the n o tice of appeal, however, this court retains jurisdiction to rule on the Magistrate Judge's re c o m m e n d a tio n . "[A] premature notice of appeal does not divest the district court of ju ris d ic tio n over the case," United States v. Kapelushnik, 306 F.3d 1090, 1094 (11th Cir. 2 0 0 2 ), and "[a]n attempt to appeal a non-appealable order remains just that, an attempt[,] . . . [ a n d ] a nullity," id. (internal quotation marks omitted). Because a Magistrate Judge's re c o m m e n d a tio n is not an appealable order under § 1292, this court may rule on the r e c o m m e n d a tio n despite the notice of appeal. The court reviews de novo the portions of the re c o m m e n d a tio n to which Valencia objects. See 28 U.S.C. § 636(b)(1)(C). Valencia objects to sub-parts 2, 3, 7, 8, and 13 of the list of recommendations. (Doc.

# 43, at 1.) Those sub-parts encompass the recommendations to dismiss: (1) the claims a g a in s t the United States of America ("United States") under the Federal Tort Claims Act (" F T C A " ) without prejudice; (2) the claims against all parties for "negligence, hazardous w o rk conditions, and exposure to lead, arsenic, and mold spores" without prejudice; (3) the T itle VII claims not dismissed elsewhere without prejudice; (4) the claims under 42 U.S.C. § 1986 without prejudice; and (5) the claims against all parties for breach of implied contract. (D o c . # 38, at 31-32.) The court interprets Valencia's objections to also cover

re c o m m e n d a tio n s in: (6) sub-part (1) of the list of recommendations ­ that the United States b e substituted as a defendant to the tort claims and that the court dismiss the claims against th e Department of Interior ("DOI") and the individual defendants with prejudice;1 (7) subp a rts (9) and (10) ­ that the court should dismiss the 42 U.S.C. § 1983 claims with prejudice;2 a n d (8) sub-parts (11) and (12) ­ that the court dismiss claims for violations of the Fourteenth A m e n d m e n t to the United States Constitution with prejudice, and constitutional claims b ro u g h t pursuant to Bivens3 . A ll of Valencia's objections are due to be overruled. The certification required under

Valencia challenges the certification required under 28 U.S.C. § 2679(d)(1) to substitute the United States for a defendant employee as defective and "only being certified after the fact." (Doc. # 43, at 2-3.)
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Valencia clearly challenges the dismissal of the § 1983 claims. (See Doc. # 43, at 1-2, 3.)

Valencia appears to challenge the Bivens claims' dismissals by stating: "[d]ue to the Defendants acting in their individual capacity & violating the Plaintiff's . . . Federal Constitutional Rights under the 8th and 14th amendments and for violating color of Federal law" (Doc. # 43, at 2), and the Fourteenth Amendment claims by alluding to "her 14th Amendment Right to procedure to due process" (Doc. # 43, at 4).

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2 8 U.S.C. § 2679(d)(1) to substitute the United States as a defendant for a defendant e m p lo ye e "acting within the scope of his office or employment," id., is not defective for f a ilin g to include a signature of the United States Attorney that was under oath.4 Section 2 6 7 9 merely requires a "certification" from the Attorney General, id., or the United States A tto rn e y, 28 C.F.R. § 15.4(a), and the certification in this case that Defendants Catherine F a rm e r Light ("Light") and Herbert Tyrone Brandyburg ("Brandyburg") were acting within th e scope of their federal office or employment was signed by the United States Attorney for th e Middle District of Alabama, and thus, is not defective. (See Doc. # 17 Ex. 1.)

A d d itio n a lly, Valencia's challenge that the certification "was after the fact," see supra note 1 , seems to misunderstand the certification; it is by definition referring to an event that a lre a d y has occurred. Valencia's objections to dismissing the FTCA claims more generally are that she has e x h a u ste d her administrative remedies (Doc. # 43, at 5). The Magistrate Judge recommends d is m i s s in g the FTCA claims for lack of jurisdiction for failure to exhaust administrative re m e d ies as required by the FTCA. (Doc. # 38, at 13.) A plaintiff cannot bring a tort claim a g a in s t the United States "unless it is presented in writing to the appropriate [f]ederal a g e n c y." 28 U.S.C. § 2401(b); see also 28 U.S.C. § 2675(a). Valencia argues that she filed a complaint with the Occupational Safety and Health Administration, as well as with other a g e n cie s (Doc. # 43, at 5-6), but does not argue that she filed a complaint with the federal
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According to Valencia, "nowhere is there anything where Leura G. Canary swears under the Penalty of Perjury Attested to." (Doc. # 43, at 2.)

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ag en cy against which her claims are directed ­ DOI (see Doc. # 43). Indeed, as part of its m e m o r a n d u m in support of a motion to dismiss, the United States filed a declaration given b y Marcella Gibson, the Regional Tort Claims Officer for the National Park Service, a b u re a u within DOI, that her agency has never received an administrative claim from V a len c ia. (Doc. # 19 Ex. 1.) The purpose of requiring plaintiffs to present their claims to f e d e ra l agencies before suit is in part "to give federal agencies `a fair opportunity to in v e s tig a te and possibly settle . . . claim[s].'" Burchfield v. United States, 168 F.3d 1252, 1 2 5 5 (11th Cir. 1999) (quoting McNeil v. United States, 508 U.S. 106, 111-12 (1993)). That p u rp o s e is completely eviscerated if the plaintiff can satisfy this precondition to suit by s u b m ittin g claims to other agencies but not to the agency that is the defendant. Valencia has s h o w n no proof of submitting a claim to DOI. This court lacks jurisdiction to adjudicate her F T C A claims. For the same reason, the court lacks jurisdiction over the claims for negligence, h a z ard o u s work conditions, and exposure. As the recommendation explains (Doc. # 38, at 1 4 -1 6 ), the Federal Employees Compensation Act ("FECA") provides the sole remedy for fe d era l employees suing the United States for on-the-job injuries; the FTCA does not govern th o s e grievances. Though courts usually hold claims in abeyance where there is a substantial q u e stio n as to whether FECA covers them, because Valencia's claims would otherwise be F T C A claims ­ and because she has failed to exhaust her administrative remedies to establish ju ris d i c ti o n over her FTCA claims ­ dismissal of the FECA-related claims is appropriate.

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(D o c . # 38, at 15-16.) V a len c ia' s objections to the recommendations on her Title VII claims are difficult to d is c e rn . Sub-part 7 from the list of recommendations, which she specifically enumerated as o n e basis for her objections, concerns Title VII claims not covered elsewhere in the re c o m m e n d a tio n list, i.e.,Title VII claims that are not against Light and Brandyburg in their in d iv id u a l and official capacities (sub-part (5)), or claims for discrimination and a hostile w o rk environment related to sexual orientation (sub-part (6)). (Doc. # 38, 32-32.) The re c o m m e n d a tio n advises dismissal of the remaining Title VII claims for failing to produce e v id e n c e of a right-to-sue letter from the EEOC (Doc. # 38, at 21), and Valencia has p re se n te d no argument for finding otherwise. T h e focus of Valencia's objections are on the § 1983 and the § 1986 claims. She a rg u e s that § 1983 "creates a remedy for damages against the [individual] Defendants in both c a p a c itie s " (Doc. # 43, at 2) and alleges a 42 U.S.C. § 1985 claim to validate her 42 U.S.C. § 1986 claim (Doc. # 43, at 6-7) 5 . But Valencia faces an insurmountable legal barrier. She h a s failed to overcome one important requirement for § 1983 and § 1986 claims: state action. A s the recommendation explains (Doc. # 38, at 24), and the court now confirms, § 1983 and § 1986 apply only to deprivations under color of state law, thereby disqualifying the United S ta te s and its officers acting under color of federal law from liability under these statutes.

See § 1986 (describing liability as applying to "[e]very person who, having knowledge that any of the wrongs conspired to be done, and mentioned in [§] 1985 of this title, are about to be committed and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed").

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S e e § 1983; e.g., United States v. Timmons, 672 F.2d 1373, 1380 (11th Cir. 1982) ("It is well e sta b lis h e d in this circuit that the United States has not waived its immunity to suit under the p ro v is io n s of the civil rights statutes."). A party in its individual capacity qualifies as acting u n d e r color of state law only if that party was coerced by the state into violating the p lain tiff 's rights, preformed a public function, or served as a joint participant with the state in a relevant enterprise (Doc. # 38, at 26). Valencia has not shown that any of those three sce n arios was the case.6 (Doc. # 43, at 27.) F in a lly, the objections to dismissing the Bivens claims fail for the reason cited by the re c o m m e n d a tio n . A Bivens action refers to a cause of action, provided for under Bivens v. S ix Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against f e d era l officers who allegedly violate an individual's constitutional rights under color of f e d e ra l law. Hardison v. Cohen, 375 F.3d 1262, 2364 (11th Cir. 2004). The Civil Service R e f o rm Act ("CSRA"), however, is the exclusive remedy for federal employees seeking d a m a g e s against their federal employers for constitutional violations under Bivens. Id. at 2 3 6 4 -6 5 ; Stephens v. Dep't of Health & Human Servs., 901 F.2d 1571, 1576-78 (11th Cir. 1 9 9 0 ); Lee v. Hughes, 145 F.3d 1272, 1276-77 (11th Cir. 1998). The Eleventh Circuit has b e e n deliberate in recognizing that "[t]he Supreme Court has not addressed directly the issue w h ethe r a remedial statutory scheme necessarily precludes an action for equitable relief

For the same reason that Valencia has failed to show state action, the recommendation to dismiss the Fourteenth Amendment claims is correct. (See Doc. # 38, at 27-28.)

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b ro u g h t by a federal employee," Hardison, 375 F.3d at 1266 (emphasis added).7 Indeed, in a n earlier panel decision, the Eleventh Circuit held that the "[CSRA] does not deprive the U n ite d States Courts of their traditional injunctive power to protect constitutional rights" and v a c ate d a district court order that found the court could not intervene in a federal personnel m a tte r with an injunction because of the CSRA. Perry v. Thomas, 849 F.2d 484, 484-85 (1 1 th Cir. 1988) (per curiam) (emphasis addded) (cited in Hardison, 375 F.3d at 1266, 1 2 6 7 ) .8 B e c au s e this court construes Valencia's pleadings to request only damages, except w ith respect to her request for injunctive relief under 28 U.S.C. § 2283 to stay state court proceedings, the court need not determine whether other equitable relief for her constitutional c la im s would be appropriate. The relief requested in the Amended Complaint is stated as

In Stephens, where the court found the CSRA was the exclusive remedy for federal employee personnel actions, the court did not mention equitable relief; in addition, the plaintiff had been eligible and had taken advantage of the administrative relief. Hardison, 375 F.3d at 1267. If the Stephens plaintiff had been without a remedy, "it is not clear that th[e] [c]ourt would have found that his equitable claim was barred." Id. A district court in Georgia has criticized Hardison's analysis of Stephens and Perry. See Brown v. Chertoff, 512 F. Supp. 2d 1367, 1370-71 (S.D. Ga. 2007). The court faulted the Hardison court for neglecting to mention that in Perry, the Government conceded the point that the courts can grant equitable relief, and distinguished Perry as concerning whether federal courts have "injunctive powers to protect constitutional rights," from Stephens, which concerned whether those powers should be exercised. Id. at 1371 (internal quotation marks omitted). The court declined to follow "Hardison's dictum," id. at 1371, and instead followed Stephens, which, according to the Georgia district court, "squarely held that, even where a federal court has the power to prescribe an equitable remedy for a constitutional violation, exercising that power is inappropriate where Congress in fact has provided adequate remedial mechanisms," id. (internal quotation marks omitted). Because the court finds Valencia has not requested equitable relief for violations of her constitutional claims outside of relief pursuant to 28 U.S.C. § 2283, see infra, the court refrains from addressing in more detail the divergence of opinions evident in Brown.
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f o llo w s: Now the undersign [sic] seeks the following remedies and ask [sic] the court to award me for the following damages; compensatory damages; nominal d a m a g e s , punitive damages, loss of enjoyment of life, mental anguish, d e lib e ra te indifference of medical well being, negligence estoppels, willful w a n to n recklessness endangerment of life. The undersign [sic] seeks damages in the amount of seven million dollars due to the violations of her c o n stitu tio n a l rights and the suffering she inquired at the hands of the d e f e n d a n ts. The plaintiff also seeks injunctive relief in pursuant to 28 U.S.C. 2 2 8 3 in reference to her arguments based on law and facts. (D o c . # 6, at 12.) The only equitable requested relief is that pursuant to § 2283.9 U p o n an independent review and a de novo determination of that portion of the r e c o m m e n d a tio n to which objection is made, it is ORDERED as follows: (1 ) (2 ) V a le n c ia 's objections (Doc. # 43) are OVERRULED; T h e Report and Recommendation of the Magistrate Judge (Doc. # 38) is A D O PTED ; (3) (4 ) Defendants' Motion to Dismiss (Doc. # 18) is GRANTED; and A ll other motions are DENIED as moot.

DONE, this 7th day of October, 2008. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

The recommendation states that Valencia "appears to assert a Bivens claim for violations of the Fourth and Eighth Amendments to the United States Constitution wherein she seeks both monetary and injunctive relief." (Doc. # 38, at 28 (emphasis added).) The court respects the Magistrate Judge's interpretation of the pleadings, but declines to read them to request equitable relief outside of the § 2283 claim, which is the only discernible reference to a basis for equitable relief in the Amended Complaint.

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