Boyd v. United States Department of Justice et al
Filing
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OPINION AND ORDER that Plaintiff's Complaint 3 is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2). Signed by Judge William S. Duffey, Jr on 12/15/2015. (anc) Modified on 12/15/2015 in order to update docket text (anc).
Plaintiff’s pro se Complaint alleges causes of action under the Federal Tort
Claims Act (“FTCA”) and the Fifth and Fourteenth Amendments against
Defendants U.S. Department of Labor (“USDOL”) and U.S. Department of Justice
(“USDOJ”) (together, “Defendants”). Plaintiff was an employee of the USDOL.
(See Compl. ¶ 22). It appears from the context of Plaintiff’s Complaint that the
USDOL terminated her employment, and Plaintiff appealed her termination.
Plaintiff alleges that, on July 11 and 26, 2012, at hearings for two of Plaintiff’s
Merit System Protection Board (“MSPB”) “case(s)/appeal(s) against the U.S.
Department of Labor,” two USDOL employees, Kathleen Kurth and Michael
Holsten, committed perjury by giving false testimony regarding Plaintiff. (Compl.
¶¶ 9-13). Plaintiff alleges “USDOL also suborned the perjury of the USDOL
employees.” (Id. ¶ 15). Plaintiff alleges that the USDOJ, which represented the
USDOL on Plaintiff’s appeal of the MSPB’s decision against Plaintiff, conspired
with the USDOL “to conceal the perjury and subordination of perjury of USDOL’s
employees.” (Id. ¶¶ 17, 19).
Plaintiff alleges that, as a result of these actions, Plaintiff was discharged
from her USDOL employment, has been unable to find new employment, and has
filed for bankruptcy. (Id. ¶ 22). Plaintiff’s FTCA claim is based on the allegations
of perjury, and she also contends Defendants’ actions constitute “abusive litigation,
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ratification of tort(s), and an intentional infliction of emotional distress.” (Id.
¶ 25).
II.
DISCUSSION
A.
Standard of Review
A court must dismiss a complaint filed in forma pauperis if at any time the
court determines the action is frivolous or malicious or that it fails to state a claim
on which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). “Failure to state
a claim under § 1915(e)(2)(B)(ii) is governed by the same standard as dismissal for
failure to state a claim under Fed. R. Civ. P. 12(b)(6).” Wilkerson v. H&S, Inc.,
366 F. App’x 49, 51 (11th Cir. 2010) (citing Mitchell v. Farcass, 112 F.3d 1483,
1490 (11th Cir. 1997)). Under this standard, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
Review for frivolousness, on the other hand, “‘accords judges not only the
authority to dismiss a claim based on an indisputably meritless legal theory, but
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also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.’” See
Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (quoting
Neitzke v. Williams, 490 U.S. 319, 327 (1989)). A claim is frivolous when it “has
little or no chance of success,” that is, when it appears “from the face of the
complaint that the factual allegations are ‘clearly baseless’ or that the legal theories
are ‘indisputably meritless.’” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993)
(quoting Neitzke, 490 U.S. at 327).
Plaintiff filed her Complaint pro se. “A document filed pro se is to be
liberally construed, and a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and internal quotation marks
omitted). Nevertheless, a pro se plaintiff must comply with the threshold
requirements of the Federal Rules of Civil Procedure. See Beckwith v. Bellsouth
Telecomms. Inc., 146 F. App’x 368, 371 (11th Cir. 2005). “Even though a pro se
complaint should be construed liberally, a pro se complaint still must state a claim
upon which the Court can grant relief.” Grigsby v. Thomas, 506 F. Supp. 2d 26,
28 (D.D.C. 2007). “[A] district court does not have license to rewrite a deficient
pleading.” Osahar v. U.S. Postal Serv., 297 F. App’x 863, 864 (11th Cir. 2008).
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B.
Analysis
Plaintiff claims that the USDOJ and USDOL are liable under the FTCA for
the alleged acts of perjury and “subordination of perjury” committed by their
employees. The FTCA provides a limited waiver of the United States’ sovereign
immunity for tort claims. Dalrymple v. United States, 460 F.3d 1318, 1324 (11th
Cir. 2006). A federal agency may not be sued under the FTCA. Lipkin v. U.S.
Sec. and Exchange Comm’n, 468 F. Supp. 2d 614, 624 (S.D.N.Y. 2006) (citing 28
U.S.C. § 2679(a)). Further, a claim based on perjury or concealment of evidence
“fall[s] outside the limited waiver of sovereign immunity provided by the FTCA.”
Id. at 616 (citing 28 U.S.C. § 2680(h)).
Plaintiff brings this action against the USDOJ and USDOL, but the FTCA
requires her to bring the action against the United States. See Lipkin, 468 F. Supp.
2d at 624; 28 U.S.C. § 2679(a). Even if Plaintiff brought this action against the
appropriate party, her claims are based on perjury and concealment of evidence,
and thus fall outside of the scope of the FTCA.1 See id. at 616; 28 U.S.C.
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Plaintiff’s allegations of “abusive litigation” also falls outside the scope of
the FTCA. See 28 U.S.C. § 2680(h) (listing “malicious prosecution” as outside the
scope of the FTCA).
Plaintiff’s claim of intentional infliction of emotional distress, however, is
allowed under the FTCA. See Gonzalez-Gonzalez-Jimenez de Ruiz v. United
States, 231 F. Supp. 2d 1187, 1198 (M.D. Fla. 2002) (citing Baird v. Haith, 724 F.
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§ 2680(h). Plaintiff therefore fails to state a FTCA claim on which relief can be
granted.
Plaintiff also claims Defendants’ actions deprived Plaintiff of her
constitutional right of due process, in violation of the Fifth and Fourteenth
Amendments. “[T]he Fourteenth Amendment applies only to states and state
actors, not federal agencies or employees.” Shell v. HUD, 355 F. App’x 300, 307
(11th Cir. 2009). Defendants are federal agencies, making Plaintiff’s Fourteenth
Amendment claims void.
Plaintiff’s procedural due process claim under the Fifth Amendment also
fails.2 “In order to be entitled to procedural due process, [Plaintiff] must establish
Supp. 367, 376 (D. Md. 1988)). In Georgia, a claim for intentional infliction of
emotional distress must show the following elements: (1) the conduct must be
intentional or reckless; (2) the conduct must be extreme and outrageous; (3) there
must be a causal connection between the wrongful conduct and the plaintiff’s
emotional distress; and (4) the emotional distress must be severe. Standard
v. Falstad, ––– S.E.2d –––, –––, 2015 WL 6987101, at *4 (Ga. Ct. App. 2015). To
qualify as sufficiently “extreme and outrageous,” the conduct at issue “must be so
extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized society.” Id. (internal
quotation marks omitted). Here, Plaintiff’s allegations of perjury and a conspiracy
to conceal perjury leading to Plaintiff’s job loss cannot meet this exceptional
standard. The Court determines her intentional infliction of emotional distress
claim is frivolous because it “has little or no chance of success,” and is
“indisputably meritless.” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993).
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“Due process claims are categorized as procedural or substantive.
Substantive due process claims generally involve laws limiting the liberty of all
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that [s]he had a property interest that was abridged. Tie Qian v. Shinseki, 747 F.
Supp. 2d 1362, 1367 (S.D. Fla. 2010) (citing U.S. Const. amend. V). “A property
interest exists when one has a ‘legitimate claim of entitlement’ to a right arising
from such sources as state statutes and employment contracts.” Abernathy v. City
of Catersville, Ga., 642 F. Supp. 529, 532 (N.D. Ga. 1986).3 However, “[i]t is
clear that an at-will employee . . . has no property interest in [her] continued
employment.” Tie Qian, 747 F. Supp. 2d at 1367 (citing Davis v. Mobile
Consortium of CETA, 857 F.2d 737, 741 (11th Cir. 1988)); see also LaFleur
v. Hugine, 587 F. App’x 536, 542 (11th Cir. 2014); Adams v. Bainbridge-Deactur
Cty. Hosp. Auth., 888 F.2d 1356, 1366 (11th Cir. 1989).
Here, Plaintiff failed to include any allegations regarding her employment
with the USDOL showing that she had a property interest that was abridged. There
is no employment contract or other evidence or allegation to indicate that Plaintiff
was anything but an at-will employee. See Bishop v. Wood, 426 U.S. 341, 345-47
persons to engage in certain activities. This case involves the conduct of
government employees which allegedly deprives the Plaintiff[] . . . of a [property]
interest. Thus, the claim is not a substantive due process claim, and is more
accurately analyzed under procedural due process.” Thrower v. Ziegler, No. 3:11cv-1124-MEF, 2012 WL 3431854, at *3 (M.D. Ala. July 26, 2012).
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Where an individual’s property interests are deprived, the Fifth Amendment
“requires notice and an opportunity to be heard before any governmental
deprivation of a property or liberty interest.” Grayson v. King, 460 F.3d 1328,
1340 (11th Cir. 2006).
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(1976) (a unilateral expectation of continued employment does not suffice). Thus,
Plaintiff fails to state a Fifth Amendment claim on which relief can be granted.
Because all of Plaintiff’s claims fail, Plaintiff’s Complaint is required to be
dismissed. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii).
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Complaint [3] is
DISMISSSED pursuant to 28 U.S.C. § 1915(e)(2).
SO ORDERED this 15th day of December, 2015.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
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