Droganes et al v. U.S. DOT et al
Filing
28
MEMORANDUM OPINION & ORDER: Defs' motion to dismiss or, in the alternative, for summary judgment 19 is GRANTED. A separate judgment shall enter concurrently herewith. Signed by Judge William O. Bertelsman on 8/5/2016.(ECO)cc: COR w/copy mailed to Sam Droganes, pro se Plf at address listed on the docket sheet via U.S. mail.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 2013-16 (WOB)
SAM DROGANES, ET AL.
VS.
PLAINTIFFS
MEMORANDUM OPINION AND ORDER
U.S.DOT, ET AL.
DEFENDANTS
This matter is before the Court on defendants’ motion to
dismiss or, in the alternative, for summary judgment (Doc. 19).
The Court has reviewed this matter and concludes that oral argument
is unnecessary.
It therefore issues the following Memorandum
Opinion and Order.
Factual and Procedural Background
This is an action challenging final administrative action by
the
Department
Materials
of
Safety
Transportation
Administration
and
Pipeline
(PHMSA)
for
and
Hazardous
imposing
civil
penalties on Plaintiff for failure to follow hazardous materials
regulations.
Defendants
Sam
Droganes
and
his
then-company,
Premium
Fireworks Co., Inc., were fined by the federal agency defendants
after a compliance inspection at plaintiffs’ retail facility and
warehouse in northern Kentucky revealed violations of certain
Hazardous Material regulations.
Plaintiffs filed this action on
February 1, 2013, challenging that determination and asserting a
violation
of
their
incrimination.
Fifth
(Doc. 1).
Amendment
rights
against
self-
After various procedural delays not
relevant here, defendants have moved to dismiss this action for
lack of subject matter jurisdiction.
The Court finds defendants’ motion well taken.
Analysis
Plaintiff’s claim directly challenges the December 31, 2012,
final agency decision of the PHMSA.
However, judicial review of
PHMSA final decisions can only be brought in the United States
Court of Appeals for the District of Columbia or in the Court of
Appeals for the circuit in which the person resides or has its
principal place of business.
See 49 U.S.C. § 5127(a).
Therefore,
the proper venue for this claim would be in the United States Court
of Appeals for the District of Columbia, or in the United States
Court of Appeals for the Sixth Circuit.
This Court thus lacks
subject matter jurisdiction to entertain this matter.
Further, it is unclear if plaintiff alleges a 42 U.S.C. §
1983 claim or a Bivens claim.
However, both claims fail to state
a claim from Plaintiff upon which relief can be granted.
Section 1983 requires action by a state actor, which plaintiff
has not alleged.
As for any Bivens claim, relief is precluded because plaintiff
has an alternative remedy to challenge the agency decision through
49 U.S.C. § 1527.
See Wilkie v. Robbins, 551 U.S. 537-38 (2007).
2
Therefore, having reviewed this matter, and being otherwise
advised,
IT IS ORDERED that defendants’ motion to dismiss or, in
the alternative, for summary judgment (Doc. 19) be, and is hereby,
GRANTED.
A separate judgment shall enter concurrently herewith.
This 5th day of August, 2016.
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?