Jackson v. United States Customs and Border Protection et al

Filing 25

ORDER Adopting 22 Report and Recommendation GRANTING 13 Motion to Dismiss. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DUBOIS L. JACKSON,
Plaintiff,
Case No. 16-14173
Hon. Terrence G. Berg
Hon. Elizabeth A. Stafford

v.
UNITED STATES
CUSTOMS AND BORDER
PROTECTION, et al.
Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION
(DKT. 22), GRANTING DEFENDANTS’ MOTION TO
DISMISS (DKT. 13)

INTRODUCTION
Plaintiff Dubois L. Jackson (“Plaintiff”), acting in pro per filed
this lawsuit against United States Border Protection, United States
Office of Border Patrol as well as the U.S. Attorney General and the
Commissioner of U.S. Customers and Border Patrol (USCBP) in
their official capacities. Dkt. 1.
This matter is before the Court on Magistrate Judge Elizabeth A. Stafford’s December 5, 2017 Report and Recommendation
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(“R&R”), Dkt. 22, which recommends that Defendants’ Motion to
Dismiss, Dkt. 13, be granted, and all of Plaintiff’s claims be dismissed.
Plaintiff filed a single, timely objection to the R&R on December 19, 2017. Dkt. 23. Defendants filed a timely response to that
objection on December 22, 2017. Dkt. 24.
For the reasons discussed below the Court will ADOPT the
holding of the Magistrate Judge’s Report and Recommendation
with the noted modifications.
BACKGROUND
The relevant facts about the underlying incident in this case
are summarized in the Magistrate Judge’s R&R. Dkt. 22, Pg. IDs
187-89. Those facts are adopted for purposes of this order.  
In quick summary, Plaintiff is challenging a search that
USCBP agents conducted of him at the fixed border checkpoint in
Detroit in August 2013. Dkt. 1 at Pg ID 198-99. After that search,
Plaintiff submitted an SF-95—the form through which individuals
can present claims against agencies under the Federal Tort Claims
Act (FTCA) 28 U.S.C. §2671 et seq.—to the USCBP office in Detroit.
Dkt. 13-2. Plaintiff states that he submitted his first SF-95 to

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USCBP on or around July 14, 2014, and did not receive any response. Dkt. 1 at Pg ID 9. Defendants respond in their Motion to
Dismiss that Plaintiff filed an SF-95 with the agency on July 14,
2015, and that the agency responded with a denial letter on February 23, 2016. Dkt. 13 at Pg. ID 74. Defendants also submitted a copy
of Plaintiff’s July 14, 2015 SF-95 with their motion, in which Plaintiff requested $1,000,000 in damages. Dkt. 13-2.
Parties agree that Defendants’ first denial letter on February
23, 2016 was not an effective denial of Plaintiff’s FTCA claims because Defendants sent it to the wrong address. Dkt. 24 at Pg ID
218; Dkt. 13 at Pg ID 74. Defendants sent a second denial letter by
certified mail on March 9, 2016 to the correct PO Box address listed
on Plaintiff’s SF-95, which was delivered to the PO Box, but never
picked up, and thus returned undelivered. Dkt. 13 at Pg ID 74.
Plaintiff called the agency in May 2016 and stated he had not
yet received a response to his July 14, 2015 SF-95. Dkt. 1 at Pg ID
9. Defendants state they told Plaintiff they would mail him a third
copy of the denial letter, and did so, as a courtesy, by certified mail
on May 2, 2016 to the same PO Box where the March 9, 2016 letter
had been sent. Dkt. 13 at Pg ID 74. Plaintiff acknowledges receiving
this May 2, 2016 denial letter on June 10, 2016. Dkt. 1 at Pg ID 9.

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Plaintiff filed this Complaint on November 26, 2016 against
the USCBP, the U.S. Office of Border Patrol, Loretta Lynch in her
official capacity as the United States Attorney General, and R. Gil
Kerlikowske in his official capacity as the Commissioner of USCBP.
Dkt. 1. In the Complaint, Plaintiff claims Defendants violated his
Fourth Amendment rights by unlawfully searching and seizing him
during the checkpoint stop, and his Fifth Amendment rights by
placing him on a federal watch list after that search without affording him any sort of process. Dkt. 1 at Pg ID 11. Plaintiff also references claims under the FTCA against USCBP for false imprisonment, false arrest, assault, and battery. Dkt. 1 at Pg ID 10.
On April 10, 2017, Defendants filed their Motion to Dismiss
arguing that the Court should: 1) dismiss Plaintiff’s constitutional
claims because they were barred by sovereign immunity; 2) dismiss
Plaintiff’s FTCA claims for failure to state cognizable claims under
the statute, and because any such claims—even if properly
pleaded—are time-barred. Dkt. 13 at Pg ID 63, 68, 73.
On December 5, 2017 the Magistrate Judge issued her R&R
recommending: 1) dismissal of Plaintiff’s constitutional claims
against the federal government and federal government officials

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which are barred by sovereign immunity1; 2) dismissal of Plaintiff’s
FTCA claims as time-barred. Dkt. 22 at Pg ID 190-95.
Plaintiff timely filed a single objection on December 19, 2017,
challenging only the Magistrate Judge’s finding that his FTCA
claims were time-barred. Dkt. 23 at Pg ID 198. Plaintiff argues the
Magistrate Judge incorrectly found that his six month window for
filing this Complaint in federal court began on May 2, 2016—the
date on which the third copy of his denial letter was mailed to him.
Dkt. 23 at Pg ID 198-99. According to Plaintiff, this was an error
because the FTCA and its regulations require that agencies send
these letters via certified or registered mail, but Defendants did not
produce a copy of the Form 3800 (the official certified mail receipt)
for the May 2, 2016 denial letter and thus did not establish that
they satisfied this mailing requirement. Id. at 198-200 (citing 28
C.F.R. §14.9(a)). Plaintiff attaches a copy of the Form 3800 to his
objection, Dkt. 23 at Pg ID 202, and a copy of the receipt Defendants
submitted of certified mail postage purchased from “NetStamps” on
May 2, 2016 for comparison. Dkt. 23 at Pg ID 204. The NetStamps

The Magistrate Judge noted that Plaintiff could have brought his
constitutional claims against individually named federal officers
in their individual capacity as a Bivens action, but concluded that
allowing Plaintiff to amend the Complaint now would be futile because those claims would be time-barred under Michigan law.
Dkt. 22 at Pg 191 n. 3.
1

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receipt appears to have been photocopied with another piece of paper laid on top of it with Plaintiff’s name, address, and the date
5/2/2016 handwritten on it. Id. Plaintiff argues that this is insufficient to establish that Defendants actually sent him the May 2,
2016 denial letter via certified mail. Dkt. 23 at Pg ID 200.
On December 22, 2017, Defendants responded to Plaintiff’s
objection and argued that 1) the second denial letter the agency sent
Plaintiff on March 9, 2016, independently satisfied the FTCA mailing requirement regardless of whether Plaintiff actually received it;
2) the third denial letter the agency sent Plaintiff on May 2, 2016
was sent via certified mail, per the NetStamps receipt and the
sworn declaration attached as exhibits, and thus also satisfied the
FTCA mailing requirement; 3) Plaintiff’s FTCA claims fail as a matter of law because a) the Complaint did not state any claim against
a party subject to liability under the FTCA, b) the FTCA claims are
barred by the customs duty exception for routine border checkpoint
inspections, and c) Plaintiff failed to actually plead facts supporting
the false arrest and imprisonment, and negligent infliction of emotional distress claims he attempted to assert under the FTCA. Dkt.
24 at Pg ID 227.

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Plaintiff has only objected to the Magistrate Judge’s finding
that his FTCA claims are time-barred. The Magistrate Judge considered the statutory limitation period under the FTCA that requires claimants file their complaints in federal court within six
months of a federal agency’s notification of the denial. She concluded that because Defendants sent Plaintiff a third copy of the
denial letter on May 2, 2016 he had until November 6, 2016 to file
his Complaint, but failed to do so until November 29, 2016. Dkt. 22
at Pg ID 192 (citing 28 U.S.C. §2401(b)).
The Court will therefore address only whether dismissal of his
FTCA claims as time-barred was proper in light of his objection.
For the reasons discussed below the Court agrees with the
Magistrate Judge’s holding that Plaintiff’s claims are time-barred,
but finds that the second denial letter, which the agency mailed on
March 9, 2016, started the six-month time window in which Plaintiff could have filed this action. The Court will therefore adopt the
Report and Recommendation dismissing Plaintiff’s claims with the
modification that the agency’s certified mailing of the March 9,
2016 letter rendered Plaintiff’s FTCA claims time barred.
Accordingly, Plaintiff’s objections are OVERRULED, and the
Report and Recommendation is ACCEPTED and ADOPTED as

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the opinion of the Court with the modifications noted below, and
Plaintiff’s complaint is DISMISSED with prejudice.
STANDARD OF REVIEW
A. De novo review
A district court must conduct a de novo review of the parts of
a Report and Recommendation to which a party objects. See 28
U.S.C. § 636(b)(1). “A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge. The judge may also receive further evidence
or recommit the matter to the magistrate judge with instructions.” Id.
B. Motion to Dismiss Standard
Rule 12(b)(1) provides for dismissal of claims where the court
lacks subject matter jurisdiction. Here the claims at issue in Plaintiff’s objection to the R&R are brought under the Federal Tort
Claims Act (FTCA) 28 U.S.C. §2671 et seq. The FTCA waives the
United States’ sovereign immunity for certain tort claims—thereby
providing courts with subject matter jurisdiction over them—provided that litigants satisfy several procedural requirements.
At issue here is the waiver of sovereign immunity requirement, which provides that:

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An action [under the FTCA] 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 of 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.
28 U.S.C. § 2675(a)(emphasis added).
Also at issue is the statutory limitation period requirement,
which provides that:
A tort claim against the United States shall be forever barred
unless it is presented in writing to the appropriate federal
agency within two years after such claim accrues or unless action is begun within six months after the date of mailing by
certified or registered mail, of notice of final denial of the claim
by the agency to which it was presented.
28 U.S.C. § 2401(b)(emphasis added).
ANALYSIS
Plaintiff objects to the Magistrate Judge’s finding that Plaintiff’s FTCA claims are time-barred because he had six months after
the agency mailed him the third, May 2, 2016 denial letter in which
to file this Complaint, but did not do so until November 29, 2016;
approximately four weeks after the six-month filing window expired. Dkt. 22 at Pg ID 193.

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Under the FTCA, claimants have six months from the “date
of mailing” of their denial letters in which to file a complaint in federal court:
A tort claim against the United States shall be forever barred
unless it is presented in writing to the appropriate Federal
agency within two years after such a claim accrues or unless
action is begun within six months after the date of mailing, by
certified or registered mail, of the notice of final denial of the
claim by the agency to which it was presented.
28 U.S.C. § 2401(b)(emphasis added). Plaintiff argues that the May
2, 2016 letter did not constitute a final denial under the FTCA because it was not sent via “certified or registered mail” and thus did
not comply with the statute’s mailing requirement. Dkt. 23 at Pg
ID 198 (citing 28 C.F.R. §14.9(a)) (“Final denial of an administrative claim shall be in writing and sent to the claimant, his attorney,
or legal representative by certified or registered mail”).
According to Plaintiff, the May 2, 2016 was not sent via certified or registered mail because Defendants could not provide “a
mailing receipt to the sender and a record of delivery at the office
of address.” Dkt. 23 at Pg ID 198 (citing 39 C.F.R. §3001.68). Plaintiff states that the copy of the NetStamps receipt that Defendants
produced showing certified mail was purchased on May 2, 2016 was
insufficient to establish the denial letter was in fact sent via certified or registered mail. Id.
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Defendants respond that the receipt for the certified mail
postage, which was in the internal agency file Defendant USCBP
kept on Plaintiff’s case, combined with the declaration of Judith A.
Wilson, the Lead Legal Assistant in the Office of the Assistant Chief
Counsel for USCBP in Detroit, Dkt. 24-3, who attests she personally sent the May 2, 2016 letter to Plaintiff via certified mail, is
credible evidence that the denial letter indeed complied with the
certified mailing requirement. Dkt. 24 at Pg ID 226; Dkt. 24-3 at Pg
ID 236. Defendants further argue that Plaintiff’s admission that he
signed for the May 2, 2016 letter on June 10, 2016 is additional
proof the letter was sent by certified or registered mail as no other
form of mail would have required his signature. Dkt. 24 at Pg ID
226 (citing Dkt. 16 at Pg ID 127).
Plaintiff did not allege that Defendants failed to send the SF95 denial via certified mail in his Complaint. Dkt. 1 at Pg ID 9. He
did, however, raise this argument in his opposition to Defendants’
Motion to Dismiss. Dkt. 16 at Pg ID 127. But the R&R does not
discuss Plaintiff’s argument that the May 2, 2016 was not sent via
certified mail letter and therefore fails the mailing requirement, id.,
Defendants’ sworn declaration that it was. Dkt. 13 at Pg ID 74; Dkt.
13-3 at Pg ID 92.

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The R&R states only that “the agency sent [Plaintiff] a notice
of denial by certified mail, return receipt requested, on May 2, 2016.
. . .” Dkt. 22 at Pg ID 193. Whether the letter was sent via certified
mail therefore appears to be a question that was not ultimately addressed and resolved. The Court nevertheless finds that regardless
of whether this third denial letter was sent via certified mail, the
second denial letter—which indisputably was sent by certified mail
on March 9, 2016—served as the agency’s final denial of Plaintiff’s
claim and began the six-month timeline for filing this suit in federal
court. See Dkt. 24-3 at Pg ID 244-46 (copy of March 9, 2016 denial
letter with certified mail receipt).
Plaintiff argued before the Magistrate Judge that the March
9, 2016 letter was not a final denial because he never received it.
Dkt. 16 at Pg ID 127. But as the Magistrate Judge correctly noted,
this Circuit has expressly addressed and rejected this argument,
finding instead that the date on which a denial letter is sent is the
date from which the six month limit is calculated regardless of
whether that letter is ultimately received. Dkt. 22 at Pg ID 192 (citing Jackson v. United States, 751 F.3d 712, 716-17 (6th Cir. 2014)).
In Jackson, the Sixth Circuit, following its sister circuits, held that
a plaintiff was time-barred from bringing her FTCA claim six
months after the date on which a federal agency mailed her SF-95
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denial letter, even though it was undisputed that she did not ultimately receive that letter. Id. In so holding, the Sixth Circuit noted
that the FTCA states only that the six-month window runs “from
the date of mailing,” 28 U.S.C. §2401(b), and that reading an additional receipt requirement into the text of the statute would “constitute a burden on the agency to guarantee delivery, and would in
fact be construing the FTCA in favor of plaintiffs suing the United
States, when the Supreme Court has instructed courts to do the opposite.” Id. at 717 (citing Lane v. Pena, 518 U.S. 187, 192 (1996)).
Under this Circuit’s clear interpretation of the FTCA therefore, Plaintiff had six months from March 9, 2016—until September
9, 2016—to file this Complaint, and failed to do so.2

 Plaintiff

also appears to argue before the Magistrate Judge that
the six-month filing requirement did not apply to him because
USCBP failed to render a final decision on his SF-95 within six
months of him submitting it. Under the FTCA “the failure of an
agency to make a final disposition of a claim within six months after it is filed shall at the option of the claimant any time thereafter de deemed a final denial of the claim for purposes of this section.” 28 U.S.C. §2675(a). In other words, if a claimant does not receive a response from the agency within six months of filing his
SF-95 he may proceed directly to federal court. But this provision
does not extend the timeline for filing a Complaint in federal court
indefinitely where the agency ultimately does issue a denial. Indeed, “the agency can start the section 2401(b) [six months to file]
clock running at any time by mailing a final denial of the claim.”
See Ellison v. United States, No. 07-11213, 2007 WL 1869156, at
*3 (E.D. Mich. June 28, 2007) aff’d Ellison v. United States, 531
2

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Thus the Court agrees with the Magistrate Judge’s recommendation that Plaintiff’s FTCA claims are time-barred, but modifies the R&R’s analysis by finding that the agency’s March 9, 2016
letter to Plaintiff served as the final administrative denial of his
claims, and started the six-month clock for filing this Complaint.
The Complaint was filed more than six months after March 9, 2016
and is therefore time-barred.
CONCLUSION
For the reasons set forth above, Plaintiff’s objection is OVERRULED, and the Report and Recommendation is ACCEPTED and
ADOPTED as the opinion of the Court with the modifications discussed above. Accordingly, Defendants’ Motion to Dismiss, Dkt. 13,
is GRANTED with prejudice.
SO ORDERED.

Dated: January 31, 2018 s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

F.3d 539 (6th Cir. 2008)(quoting Pascale v. United States, 998
F.2d 186, 192 (3d Cir. 1993)). Here, the agency started the sixmonth clock running when it sent the second denial letter to
Plaintiff via certified mail on March 9, 2016.

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Certificate of Service
I hereby certify that this Order was electronically filed, and
the parties and/or counsel of record were served on January 31,
2018.
s/A. Chubb
Case Manager

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