Porton v. The Salvation Army of Georgia, Inc. et al
OPINION AND ORDER granting 7 Defendant's Motion to Dismiss Plaintiff's Complaint for Lack of Jurisdiction and dismissing 2 Plaintiff's Complaint without prejudice. Plaintiff has twenty-one (21) days from the date of this Order to file an Amended Complaint that adequately alleges that Plaintiff has exhausted his administrative remedies. If no Amended Complaint is timely filed, the case will be closed without further notice. Signed by Judge John E. Steele on 1/9/2018. (KP)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAY P. PORTON,
UNITED STATES OF AMERICA,
OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion to
Dismiss (Doc. #7) filed on August 2, 2017 and Plaintiff’s Response
(Doc. #14) filed on October 13, 2017.
For the reasons set forth
below, the Court grants Defendant’s Motion to Dismiss.
This case arises out of Plaintiff Jay P. Porton’s eviction
operated by the Salvation Army on or around September 20, 2016.
Plaintiff originally filed suit in Florida state court against
four defendants: the Salvation Army of Georgia, Inc.; Erin K.
Jilliana Roe (aka Jilliana Perez), Program Director of the Federal
Residential Re-Entry Program; and Major Tim Gilliam.
there is no separately labeled “count,” it appears that Plaintiff’s
“retaliatory conduct,” in violation of Fla. Stat. § 83.64. 1
#2, ¶ 5; see also Doc. #8-1, p. 6.)
Plaintiff claims that his
eviction, which occurred shortly after he was discharged from a
hospital stay, caused him “shame, humiliation, and embarrassment,”
as well as “monetary damages” associated with relocating to a new
(Doc. #2, ¶ 7.)
He requests compensatory damages
(Id. ¶ 8.)
The Government removed the case to this Court on July 21,
2017 (Doc. #1) pursuant to Section 2679(d)(2) of the Federal Tort
Claims Act (the FTCA), 28 U.S.C. § 2671 et seq. 2
In so doing, the
Government argued that Plaintiff’s cause of action was “tort-
discriminatorily increase a tenant's rent or decrease services to
a tenant, or to bring or threaten to bring an action for possession
or other civil action, primarily because the landlord is
retaliating against the tenant.” Fla. Stat. § 83.64(1). It is
unclear from the Complaint why Plaintiff believes he was subjected
to retaliatory treatment.
That section mandates as follows:
General that the defendant [federal] employee
was acting within the scope of his office or
employment at the time of the incident out of
which the claim arose, any civil action or
proceeding commenced upon such claim in a
State court shall be removed without bond at
any time before trial by the Attorney General
to the district court of the United States for
the district and division embracing the place
in which the action or proceeding is pending.
28 U.S.C. § 2679(d)(2).
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based,” and that Officer Kandik was acting in the scope of her
Plaintiff’s claim. 3
The Government also filed a motion seeking to
dismiss Officer Kandik from the suit and substitute the United
States of America as a defendant (Doc. #4), again citing 28 U.S.C.
Plaintiff did not seek remand or respond to the
Magistrate Judge granted the Motion (Doc. #11).
As a result,
Officer Kandik was dismissed from, and the United States was made
a defendant to, this case.
The undersigned subsequently dismissed Major Gilliam (Doc.
#21) without prejudice as a defendant on December 8, 2017 because
Plaintiff had not executed service of process on him.
21, 2017, the undersigned also dismissed the Salvation Army and
Ms. Perez with prejudice (Doc. #24), pursuant to the Stipulation
of Dismissal with Prejudice signed by Plaintiff and counsel for
the Salvation Army and Ms. Perez (Doc. #23).
As such, the United
States is now the only defendant in this case.
The Government moves to dismiss Plaintiff’s Complaint under
Rule 12(b)(1) for lack of subject matter jurisdiction and Rule
12(b)(6) for failure to state a claim for violation of Fla. Stat.
Attached to the Removal Notice is the “Certification of Scope of
Employment” (Doc. 1-2) of W. Stephen Muldrow, Acting United States
Attorney for the Middle District of Florida.
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In response, Plaintiff asks the Court for permission to
file an amended complaint, if the complaint is deemed inadequate.
jurisdiction over the claim or claims alleged before it may proceed
to address challenges to the pleading sufficiency of those claims
or adjudicate them.
Santiago-Lugo v. Warden, 785 F.3d 467, 471
(11th Cir. 2015) (citing Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 93–102 (1998)).
Accordingly, the Court begins
its analysis with the Government’s jurisdictional arguments.
According to the Government, this Court lacks subject matter
jurisdiction over Plaintiff’s action for at least two reasons.
First, the United States is protected from suit for violations of
Fla Stat. § 83.64 by the doctrine of sovereign immunity.
even if Plaintiff’s Complaint could instead be construed as stating
a claim against the United States under the FTCA – for which
Congress has waived sovereign immunity – there is no indication
that Plaintiff has exhausted his remedies against the appropriate
administrative agency, as required for this action to proceed.
The doctrine of sovereign immunity presumptively “shields the
Federal Government and its agencies from suit.”
Meyer, 510 U.S. 471, 475 (1994) (citations omitted).
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Terrell v. United States, 783 F.2d 1562, 1565 (11th
Where there is no waiver, a “jurisdictional bar”
exists, and a court has no power to proceed with a claim asserted
against the Federal Government or one of its agencies.
Custom Contractors, LLC, 745 F.3d 1342, 1347 (11th Cir. 2014); see
also United States v. Mitchell, 463 U.S. 206, 212 (1983).
The Government believes dismissal is warranted because “[t]he
United States has not waived its immunity from suit in this case
and Plaintiff’s Complaint does not identify any basis or statute
that creates the right to sue the United States.”
(Doc. #7, p.
However, this argument overlooks the fact that, by removing
the case and securing Officer Kandik’s dismissal, the Government
itself converted Plaintiff’s state-law retaliatory eviction/breach
of statutory duty claim into an FTCA claim against the United
Webb v. United States, 789 F.3d 647, 672 (6th Cir. 2015);
Eskridge v. Cook Cty., 577 F.3d 806, 807 (7th Cir. 2009); Harbury
v. Hayden, 522 F.3d 413, 417 (D.C. Cir. 2008); see also 28 U.S.C.
§ 2679(d)(1) (“Upon certification by the Attorney General that the
defendant employee was acting within the scope of his office or
employment at the time of the incident out of which the claim
“The FTCA was enacted to provide redress to injured individuals
for ordinary torts recognized by state law but committed by federal
employees.” Zelaya v. United States, 781 F.3d 1315, 1323 (11th
Cir. 2015) (citations omitted).
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arose, any civil action or proceeding commenced upon such claim in
a United States district court shall be deemed an action against
the United States under the provisions of this title . . . .”
sovereign immunity for most tort claims.
Millbrook v. United
States, 569 U.S. 50, 52 (2013) (quotation omitted).
are certain exceptions to this waiver, 28 U.S.C. § 2680, the
Government has not argued that any apply to Plaintiff’s claim.
such, and because it is outcome-dispositive, the Court proceeds to
Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422,
431 (2007) (“[T]here is no mandatory ‘sequencing of jurisdictional
issues.’” (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,
Exhaustion of Administrative Remedies
Once a cause of action has been converted into an FTCA claim,
the “FTCA's requirements, exceptions, and defenses apply to the
Harbury, 522 F.3d at 417 (citing 28 U.S.C. § 2679(d)(1)).
One requirement is that the plaintiff have timely “presented [his]
claim to the appropriate Federal agency and [had] his claim . . .
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finally denied by the agency in writing.” 5
28 U.S.C. § 2675; see
Simpkins v. D.C. Gov't, 108 F.3d 366, 371 (D.C. Cir. 1997);
Eskridge, 577 F.3d at 807.
The Eleventh Circuit has “held that
failure to adequately allege exhaustion in the complaint is grounds
for dismissal for lack of subject matter jurisdiction.”
v. U.S. Postal Serv., 442 F. App'x 480, 485 (11th Cir. 2011)
(citing Dalrymple v. United States, 460 F.3d 1318, 1324–26 (11th
The Complaint does not state (or otherwise indicate) that
Plaintiff has presented his claim to the appropriate Federal agency
and had that claim denied in writing.
Because Plaintiff has not
adequately alleged that he exhausted his administrative remedies,
the Court is currently unable to adjudicate Plaintiff’s claim.
Plaintiff’s Complaint is, therefore, dismissed without prejudice
for lack of subject matter jurisdiction.
Stalley ex rel. U.S. v.
Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th
Cir. 2008) (“A dismissal for lack of subject matter jurisdiction
exhausted his administrative remedies, he may file an Amended
Complaint within twenty-one (21) days of the date of this Opinion
A plaintiff has two years from the date his cause of action
accrues to do so. 28 U.S.C. § 2401(b).
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and Order. 6
If no Amended Complaint is timely filed, the case
will be closed without further notice.
Accordingly, it is hereby
Defendant’s Motion to Dismiss for Lack of Jurisdiction
dismissed without prejudice.
Plaintiff has twenty-one (21) days from the date of this
Order to file an Amended Complaint that adequately alleges that
Plaintiff has exhausted his administrative remedies.
If no Amended Complaint is timely filed, the case will
be closed without further notice.
DONE and ORDERED at Fort Myers, Florida, this 9th day of
Parties and Counsel of Record
The Court does not opine on whether the Amended Complaint would
survive a similar motion to dismiss under Rule 12(b)(1) or
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