McMann et al v. United States of America

Filing 46

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered granting 42 Motion to Dismiss; denying 45 Motion to Stay. (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
PAUL J. McMANN,
Plaintiff,
v.
UNITED STATES OF AMERICA, et
al.,
Defendants.

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CIVIL NO.
12-11872-PBS

MEMORANDUM AND ORDER
June 18, 2014
SARIS, C.J.
For the reasons set forth below, the Court denies
plaintiff’s motion to stay and grants defendants’ motion to
dismiss.
BACKGROUND
Plaintiff initiated this Bivens action1 in 2012 while he was
a pretrial detainee at Wyatt Detention Center.

His complaint

raises several challenges concerning his pretrial detention,
including (1) the denial of his request for bail in his federal
criminal proceeding; (2) the failure to the judge in the criminal
matter to adequately specify in the record the reasons for
detaining plaintiff McMann; (3) the violation of his right to a
speedy trial; and (4) a challenge to the Bail Reform Act of 1984.
The complaint also challenges the conditions of plaintiff’s

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Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971),
established a direct cause of action against federal officials
for violations of the federal constitution.

pre-trial detention at the Wyatt Detention Center.

Specifically,

McMann alleges that he had a vitamin D deficiency that led to
depression that was not properly treated.

The complaint includes

several other allegations related to (1) concerns over being
detained in a maximum security prison with convicted felons; (2)
concerns over the failure to be appointed counsel to defend
himself in a civil suit where he was named a defendant; (3)
concerns that prior to filing the instant complaint, Wyatt staff
conspired with the government to confiscate the complaint; and
(4) the government failed to make available photocopying, postage
and telephone calls at a reasonable price.
On November 1, 2013, the government moved to dismiss the
case pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules
of Civil Procedure.

See Docket No. 42.

Several days later, on

November 5, 2013, McMann filed a pro se motion seeking “a stay of
all deadlines.”

See Docket No. 45.

In support of his motion to stay, McMann explains that he is
being moved into the custody of the Federal Bureau of Prisons and
does not know which prison facility he will be sent to serve his
sentence.

Id. at ¶¶ 1-2.

McMann asks that all correspondence to

the Wyatt Detention Facility “immediately cease until he reaches
his final BOP destination and is able to notify the Court of his
location and mailing address.”

Id. at ¶ 6.

Since seeking a stay in November 2013, McMann has not kept

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this court apprised of his address.
custody on March 14, 2014.

He was released from BOP

See Federal Bureau of Prisons Inmate

Locator, http://www.bop.gov/inmateloc. (last visited June 16,
2014).

Plaintiff clearly failed to timely oppose the motion to

dismiss or otherwise litigate this case.

However, even if

plaintiff had informed the court of his new address, his claims
fail substantially for the reasons set forth in the defendants’
memorandum in support of the motion to dismiss.
REVIEW
Because the issues analyzed here arise in the context of a
motion to dismiss, this Court presents the facts as they are
related in plaintiff's complaint, Trans–Spec Truck Serv., Inc. v.
Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008), and
construes those facts in the light most favorable to plaintiff,
see Pettengill v. Curtis, 584 F.Supp.2d 348, 362 (D.Mass. 2008)
(quoting Rodriguez–Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 96
(1st Cir. 2007)).
When examining the sufficiency of the pleadings, the court
considers whether the plaintiff has pled "enough facts to state a
claim to relief that is plausible on its face."
v. Twombly, 550 U.S. 544, 570 (2007).

Bell Atl. Corp.

"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."

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Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

Legal

conclusions couched as facts and "threadbare recitals of the
elements of a cause of action" will not suffice. Id.; see also
Ocasio–Hernandez v. Fortuno–Burset, 640 F.3d 1, 12 (1st Cir.
2011).
DISCUSSION
To the extent McMann brings this action pursuant to the
Federal Tort claims Act (FTCA), such a claim is subject to
dismissal.

The FTCA provides for a waiver of sovereign immunity

for monetary damages against the federal government or a federal
employer, under certain circumstances.

28 U.S.C. §§ 2674.

The

Supreme Court has held that “... Congress views FTCA and Bivens
as parallel, complementary causes of action.”

Carlson v. Green,

446 U.S. 14, 20–21, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).

This

has been interpreted to mean that Bivens is the method by which
constitutional tort claims are brought, while claims for
negligence and certain intentional (but not constitutional) torts
are brought under the FTCA.

Washington v. Drug Enforcement

Admin., 183 F.3d 868, 873–74 (8th Cir. 1999).
To the extent McMann brings this action pursuant to the
FTCA, this Court is without subject matter jurisdiction because
plaintiff’s failure to allege presentation is fatal to his
complaint.

See e.g., United States v. Kubrick, 444 U.S. 111, 113

(1979) (action brought against the United States under the FTCA
must be dismissed if a plaintiff has failed to file a timely
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administrative claim with the appropriate federal agency);
accord Gonzalez-Bernal v. United States, 907 F.2d 246, 248 (1st
Cir. 1990) (same).

Moreover, any negligence or constitutional

tort claims set forth in McMann's complaint against the United
States are subject to dismissal.
Because the United States, its agencies, and employees sued
in their official capacities have not waived sovereign immunity
in Bivens actions, McMann’s claims against the United States and
Attorney General Holder in his official capacity must be
dismissed for lack of subject matter jurisdiction. See e.g.,
Tapia-Tapia v. Potter, 322 F.3d 742, 745-46 (1st Cir. 2006)
(sovereign immunity bars claims against the United States for
alleged constitutional violations).
Because there is no respondeat superior liability in a
Bivens action, the claims against Attorney General Eric Holder in
his supervisory capacity are subject to dismissal.

See

Ruiz-Rivera v. Riley, 209 F.3d 24, 28 (1st Cir. 2000) (dismissing
a Bivens action against the Secretary of Education where the
alleged misconduct involved low-level staff members, neither of
whom was named as a defendant; “[a] Bivens action only may be
brought against federal officials in their individual
capacities”).
The complaint fails to allege any specific individual
actions (or omissions) committed by Attorney General Eric Holder,
but rather alleges misconduct during his criminal proceedings
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and/or the conditions of his detention at the Wyatt Detention
Center.

These allegations fall short of stating a Bivens claim

against Attorney General Holder and these claims are subject to
dismissal.

See, e.g., Iqbal, 129 S.Ct at 1951 (dismissing Bivens

complaint against Attorney General Ashcroft and FBI Director
Mueller); Soto-Torres v. Fraticelli, 654 F.3d 153, 160 (1st Cir
2011)(plaintiff has failed to allege anything more than bare
allegations based merely on defendant’s position as Special Agent
in Charge of the FBI investigation).
Finally, as noted by the defendants, (1) plaintiff’s
nineteen month pretrial detention was not unconstitutional; (2)
the Orders for Excludable Time were appropriately entered in
plaintiff’s pretrial criminal proceedings; (3) plaintiff had no
Fifth Amendment Due Process right to be present at the pretrial
status conferences; and (4) plaintiff failed to establish that he
was subjected to an unconstitutional pretrial detention in his
own case, much less that the safeguards contained in the Bail
Reform Act are inadequate in all instances.
Based upon the foregoing, it is hereby ORDERED that
1.

Plaintiff’s Motion (#45) for Stay is DENIED.

2.

Defendants’ Motion (#42) to Dismiss is GRANTED and the
complaint is dismissed in its entirety.

SO ORDERED.
/s/ Patti B. Saris
PATTI B. SARIS
Chief, U.S. District Judge
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