Peone v. USA et al

Filing 36

ORDER granting 33 Defendants' Motion for Reconsideration; directing the Clerk to reclassify this case as filed pursuant to the Federal Tort Claims Act; and setting aside service of Defendants Matos, Outlaw, Weitzmen, and Shaw. Signed by Magistrate Judge Joe J. Volpe on 1/7/2013. (srw)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
EVERETT T. PEONE
v.

PLAINTIFF
2:12-cv-00083-KGB-JJV

USA; et al.

DEFENDANTS
ORDER

Plaintiff, a Bureau of Prisons (BOP) inmate, filed a pro se Complaint (Doc. No. 2) that was
construed as being pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971).1 On October 25, 2012, the Court directed issuance of summons and service of the
Complaint on Defendants Matos, Outlaw, Weitzmen, and Shaw. (Doc. No. 12.) Summons were
returned unexecuted for Defendants Outlaw, Weitzmen, and Shaw. (Doc. Nos. 13, 14, 18.) Plaintiff
then provided another address for these Defendants, and the Court directed reissuance of summons
and service of the Complaint on Defendants Outlaw, Weitzmen, and Shaw. (Doc. No. 20.)
Defendant United States of America has filed a Motion for Reconsideration of Order
Granting Plaintiff’s Motion for Service and Brief in Support. (Doc. Nos. 33, 34). The United States
points out that the Complaint was actually filed pursuant to the Federal Tort Claims Act, 28 U.S.C.
§ 2671 et seq., and the United States of America is the only proper party in this action. For good
cause shown,
IT IS, THEREFORE, ORDERED that:

1

In Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the
Court held that victims of constitutional violations by federal agents have a right to recover damages
against them in federal court, just as 42 U.S.C. § 1983 provides redress for constitutional violations
by state officials. See also Hartman v. Moore, 547 U.S. 250, 255 n.2 (2006) (explaining that “a
Bivens action is the federal analog to suits brought against state officials under . . . 42 U.S.C.
§ 1983").

1.

The Motion for Reconsideration (Doc. No. 33) is GRANTED.

2.

The Clerk shall reclassify this case as filed pursuant to the Federal Tort Claims Act,

28 U.S.C. § 2671 et seq.
3.

Service of Defendants Matos, Outlaw, Weitzmen, and Shaw is set aside.

Dated this 7th day of January, 2013.

JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE

2