Simpson v. Simpson

Filing 7

ORDER DISMISSING CASE. Pursuant to 28 U.S.C. § 1915A(b)(1), this case is DISMISSED with prejudice as frivolous. The dismissal of this case counts as a "strike" for purposes of 28 U.S.C. § 1915(g). The Clerk of Court will enter judgment in accordance with the attached order. Signed by Judge G. Patrick Murphy on 2/24/2012. (jhs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
M A R C U S
L A V E L L E )
SIMPSON, TRI COUNTY DETENTION )
CENTER # P-12-0003,
)
)
Plaintiff,
)
)
vs.
)
)
CHRISTY LEE SIMPSON,
)
)
Defendant.
)

CIVIL NO. 12-140-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
Plaintiff Marcus Lavelle Simpson, a pretrial detainee who currently is confined in the
Tri County Detention Center in Ullin Illinois, brings this action pro se pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, against his estranged wife, Defendant
Christy Lee Simpson. Mr. Simpson’s complaint is before the Court for screening pursuant to 28
U.S.C. § 1915A, which provides, in relevant part:
(a) Screening. – The court shall review, before docketing, if feasible or, in any event,
as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal. – On review, the court shall identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if the complaint –
(1) is frivolous, malicious, or fails to state a claim upon which relief may
be granted[.]
28 U.S.C. § 1915A. An action or claim is frivolous if “it lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim upon which
relief may be granted if it does not plead “enough facts to state a claim to relief that is plausible on

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its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Conversely, a complaint is
plausible on its face “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949 (2009). Though a court is obligated to accept factual allegations as true, “some
factual allegations will be so sketchy or implausible that they fail to provide sufficient notice to
defendants of the plaintiff’s claim.” Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Also, courts
“should not accept as adequate abstract recitations of the elements of a cause of action or conclusory
legal statements.” Id. However, the factual allegations of a pro se complaint are to be liberally
construed. See Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006) (citing Haines v. Kerner, 404
U.S. 519, 520 (1972)).
According to the allegations of the pro se complaint in this case, Mr. Simpson and
Mrs. Simpson were married in 2003, and separated shortly thereafter. The Court’s records reflect
that in 2003 Mr. Simpson was sentenced to two years’ imprisonment in the custody of the Federal
Bureau of Prisons (“BOP”), together with a term of three years’ supervised release, for the offense
of burglary of a post office. In 2007 Mr. Simpson’s supervised release was revoked, and he was
sentenced to an additional six months’ imprisonment in BOP custody. Mr. Simpson alleges that
during the period of his imprisonment and continued estrangement from his wife, Mrs. Simpson has
committed various acts of identity theft, including using Mr. Simpson’s name and Social Security
number to purchase items, such as DirectTV, for which she never paid, with the result that
Mr. Simpson has been harassed by bill collectors. Mr. Simpson brings this action against his
estranged wife pursuant to the FTCA, as noted, and seeks damages of $4,000. The Court concludes
that this action is due to be dismissed.

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The FTCA permits an individual to sue the United States in federal court “for injury or loss
of property, or personal injury or death caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office or employment, under
circumstances where the United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act or omission occurred.” Palay v.
United States, 349 F.3d 418, 425 (7th Cir. 2003) (quoting 28 U.S.C. § 1346(b)(1)). In general, the
only proper party defendant in an FTCA action is the United States. See Jackson v. Kotter, 541 F.3d
688, 693 (7th Cir. 2008) (citing Stewart v. United States, 655 F.2d 741, 742 (7th Cir. 1981))
(a plaintiff has no cause of action under the FTCA against a federal employee, because the exclusive
remedy for injury negligently caused by such an employee is an action against the United States);
Carter v. Social Sec. Field Office, No. 02 C 5526, 2004 WL 609316, at *4 (N.D. Ill. Mar. 22, 2004)
(citing 28 U.S.C. § 2679(a)) (an action under the FTCA must be brought against the United States
in its own name and not by naming a federal agency as defendant, even when the agency has
statutory power to sue and be sued) (collecting cases); Schlesner v. United States, 246 F. Supp. 2d
1036, 1041 n.2 (E.D. Wis. 2003) (“To the extent the plaintiff attempts to assert a claim against the
Social Security Administration under the FTCA, such claim must be dismissed for the simple reason
that the SSA cannot be sued under the FTCA.”); Ray v. Mayfield, No. 85 C 9186, 1987 WL 13589,
at *4 (N.D. Ill. June 30, 1987) (“[T]he only proper party defendant in an FTCA action is the
United States[.]”); Newberg v. Federal Sav. & Loan Ins. Corp., 317 F. Supp. 1104, 1106
(N.D. Ill. 1970) (a federal agency cannot be sued under the FTCA). Inasmuch as the United States
is not a party to this case, Mr. Simpson cannot sue Mrs. Simpson (who is not even alleged to be a
federal employee) under the FTCA.

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The Court notes a further defect in Mr. Simpson’s complaint. The United States is immune
from suit unless it consents to be sued. See Hercules, Inc. v. United States, 516 U.S. 417, 422
(1996); Parrott v. United States, 536 F.3d 629, 634 (7th Cir. 2008). Any waiver of sovereign
immunity, such as the FTCA, must be strictly construed. See United States v. Mitchell, 445 U.S.
535, 538 (1980). Because the FTCA is a congressional waiver of the sovereign immunity of the
United States, a plaintiff must strictly comply with the statute’s requirements to have a forum for
his or her claim. See Charlton v. United States, 743 F.2d 557, 558 (7th Cir. 1984). The FTCA
provides, in relevant part:
An action shall not be instituted upon a claim against the United States for money
damages for injury or loss of property or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment, unless the claimant shall have
first presented the claim to the appropriate Federal agency and his claim shall
have been finally denied by the agency in writing and sent by certified or registered
mail. The failure of an agency to make final disposition of a claim within six months
after it is filed shall, at the option of the claimant any time thereafter, be deemed a
final denial of the claim for purposes of this section.
28 U.S.C. § 2675(a). Further specifications as to the filing of a proper administrative claim are set
forth in 28 C.F.R. § 14.2, which provides, in relevant part:
For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 2675, a claim shall
be deemed to have been presented when a Federal agency receives from a claimant,
his duly authorized agent or legal representative, an executed Standard Form 95 or
other written notification of an incident, accompanied by a claim for money damages
in a sum certain for injury to or loss of property, personal injury, or death alleged to
have occurred by reason of the incident[.]
28 C.F.R. § 14.2(a). The United States Court of Appeals for the Seventh Circuit construes 28 U.S.C.
§ 2675(a) and 28 C.F.R. § 14.2(a) as requiring that a claimant provide in his or her administrative
claim “sufficient notice to enable the agency to investigate the claim and the setting of a ‘sum
certain.’” Charlton, 743 F.2d at 559. This interpretation of 28 U.S.C. § 2675(a) is supported by the
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legislative history of the FTCA, which identifies the purpose of Congress in enacting the statute as
“eas[ing] court congestion and avoid[ing] unnecessary litigation, while making it possible for the
Government to expedite the fair settlement of tort claims asserted against the United States.”
S. Rep. No. 89-1327, at 1 (1966), as reprinted in 1966 U.S.C.C.A.N. 2515, 2516. The filing of an
appropriate administrative claim is a jurisdictional prerequisite to maintaining a FTCA action against
the federal government, and a claim by a plaintiff that has failed to comply with the statutory
requirements must be dismissed. See McNeil v. United States, 508 U.S. 106, 113 (1993)
(“The FTCA bars claimants from bringing suit in federal court until they have exhausted their
administrative remedies.”); Kanar v. United States, 118 F.3d 527, 529 (7th Cir. 1997) (“[T]he
[FTCA], as a waiver of sovereign immunity, receives a strict reading, and . . . conditions in the
FTCA must be treated as limitations on the jurisdiction of the federal courts.”); Sullivan v.
United States, 21 F.3d 198, 206 (7th Cir. 1994) (citing Deloria v. Veterans Admin., 927 F.2d
1009, 1011 (7th Cir. 1991)) (“[S]atisfaction of [28 U.S.C. §] 2675(a)’s exhaustion requirement is
a jurisdictional prerequisite to a suit in federal court[.]”). Mr. Simpson makes no allegation that he
has exhausted his administrative remedies (indeed, given that there is nothing in the complaint to
suggest that Mrs. Simpson is a federal employee, it seems unlikely that Mr. Simpson had any
administrative remedy to exhaust), and this failure to exhaust administrative remedies
precludes the Court from considering Mr. Simpson’s claim for lack of subject matter jurisdiction.
See Kendall v. Watkins, 998 F.2d 848, 852 (10th Cir. 1993) (“[U]nless plaintiff first presented her
claims to the proper federal agency and that agency finally denied them, the
district court would not have had jurisdiction over plaintiff’s FTCA claims.”). The Court will
dismiss this action.

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To conclude, pursuant to 28 U.S.C. § 1915A(b)(1), the Court finds that the complaint in this
case is frivolous, and therefore this action is DISMISSED with prejudice. Mr. Simpson is
advised that the dismissal of this case will count as one of his three allotted
“strikes” under 28 U.S.C. § 1915(g). The Clerk of Court will enter judgment in accordance with
this Order.
IT IS SO ORDERED.
DATED: February 24, 2012

/s/ G. Patrick Murphy
G. PATRICK MURPHY
United States District Judge

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