Zuniga v. Federal Bureau of Prisons

Filing 13

ORDER ADOPTING 9 Report and Recommendations of the Magistrate Judge. The Plaintiff's Complaint is dismissed, without prejudice. The Clerk is directed to enter the appropriate judgment of dismissal. Signed by Chief Judge Lisa G. Wood on 10/7/2013. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

JAMES ZUNIGA,
Plaintiff,
:

V.

CIVIL ACTION NO.: CV213-058

FEDERAL BUREAU OF PRISONS;
SUZANNE R. HASTINGS; and
R&D OFFICER SULLIVAN,
Defendants.

ORDER
After an independent and de novo review of the entire record, the undersigned
concurs with the Magistrate Judge's Report and Recommendation, to which Objections
have been filed. In his Objections, Plaintiff seeks to file a "Second Amended
Complaint, naming the United States as a defendant." (Doc. No. 11, p. 1). Plaintiff
further asserts that the individually named Defendants to the current action are liable
under Bivens v. Six Unknown Named agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971), because Defendants "individually violated Plaintiffs Fourth and Fifth
Amendment rights." (Id.

p. 2).

Plaintiff has been granted leave to amend his complaint in order to state a claim
under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, once before. See Doc.
No. 7 (vacating Magistrate Judge's Report and Recommendation and granting
Plaintiffs Motion to Amend). If Plaintiff wishes to bring an action under the FTCA, he

AO 72A
(Rev. 8/82)

should file a new complaint naming the United States as defendant and making
specific allegations of negligence based upon acts or omissions of government
employees.
Plaintiff's objection concerning the viability of his Bivens claim is without merit.
Plaintiff alleges Defendants have deprived him 'of due process by taking and depriving
Plaintiff o[f] his personal property without due process of law." (Doc. No. 8, p. 4)•1 As
twice explained by the Magistrate Judge, Plaintiff has alternative means to seek
redress, which precludes recover under Bivens. See Sharma v. Drug Enforcement
Agency, 2013 WL 791396, *5 (11th Cir. March 4, 2013); Byrd v. Stewart, 811 F.2d 554
(11th Cir. 1987). The Magistrate Judge's Report and Recommendation is adopted as
the opinion of the Court. Plaintiff's Complaint is DISMISSED, without prejudice. The
Clerk of Court is directed to enter the appropri e judgment o 1smissal.
SO ORDERED, this .

I

day of

2013.

LISA/GODBEY WOOD, CHIEF JUDGE
UN,J'TED STATES DISTRICT COURT
S,OUTHERN DISTRICT OF GEORGIA

Plaintiff intends to reassert this claim in his proposed Second Amended Complaint. See Doc. No. 12-1,
p.4.
AO 72A
(Rev. 8/82)

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