Fernandez-Torres v. Federal Bureau of Prisons

Filing 17

ORDER ADOPTING the Magistrate Judge's 13 Report and Recommendation. Plaintiff's Complaint is DISMISSED, without prejudice. The Clerk of Court is directed to enter the appropriate judgment of dismissal. Signed by Chief Judge Lisa G. Wood on 10/7/2013. (csr)

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

MANUEL FERNANDEZ-TORRES
Plaintiff,
vs.

CIVIL ACTION NO.:CV2I 3-061

FEDERAL BUREAU OF PRISONS;
SUZANNE R. HASTINGS;
Officer SANTIAGO; and
Officer B. MULTHA,
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 requests permission to file "a Second
Amended Complaint, naming the United States as a defendant." (Doc. No. 15, p. 1).
Plaintiff also contends 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 Plaintiff's Fourth and Fifth
Amendment rights."

(ii. at p. 2).

Plaintiff previously had the opportunity to amend his complaint in order to state a
claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346. See Doc. No. 11
(vacating Magistrate Judge's Report and Recommendation and granting Plaintiff's
Motion to Amend). If Plaintiff wishes to bring an action under the FTCA, he should file a

AO 72A
(Rev. 8/82)

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 unconstitutionally deprived Plaintiff of due process by
withholding Plaintiff's wages due without due process of law." (Doc. No. 12, p

3)1 The

Magistrate Judge correctly explained that a claim under Bivens alleging that Defendants
intentionally deprived Plaintiff of wages earned while participating in the federal inmate
work detail program "does not state a violation of the Due Process Clause if a
meaningful post-deprivation remedy for the loss is available." (Doc. No. 13, p. 4) (citing
Hudson v. Palmer, 468 U.S. 517, 533 (1984) (§ 1983 case); Rodriquez-Mora v. Baker,
792 F.2d 1524 (11th Cir. 1986) (explaining that the existence of a post-deprivation
remedy under the FTCA precluded a federal inmate's Fifth Amendment due process
challenge under Bivens because "in this area the reaches of the Fourteenth and Fifth
Amendments are coextensive."). The FTCA provides Plaintiff with an adequate postdeprivation remedy. 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 appropriate judgment of dismissal.
SO ORDERED, this

2013.

day of

LISA 3ODEY WOOD, CHIEF JUDGE
UNITD STATES DISTRICT COURT
SOUThIERN DISTRICT OF GEORGIA

1

Plaintiff intends to reassert this claim in his proposed Second Amended Complaint. See Doc. No. 16-1,
p.4.
AO 72A
(Rev. 8/82)

1

2