Pride v. FEMA et al
Filing
34
ORDER granting in part and denying in part 26 Motion to Dismiss for Lack of Jurisdiction. Signed by District Judge Halil S. Ozerden on 09/13/2012 (HM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
CHARLES P. PRIDE
PLAINTIFF
v.
Civil No. 1:11CV22-HSO-JMR
FEMA, Federal Emergency Mgmt.
Agency; MALE AND FEMALE JOHN
DOES, FEMA Trailer Managers;
UNKNOWN DEFENDANTS; PHILLIP
STROUSE and SUE ANN LONDON
FEMA TRAILER MANAGERS, in their
official and individual capacities;
BILOXI CITY CODE ENFORCEMENT,
and TIM ANDREWS, Officer
DEFENDANTS
MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART FEMA’S MOTION TO DISMISS
BEFORE THE COURT is the Motion to Dismiss [26] of Defendant, Federal
Emergency Management Agency (“FEMA”). Plaintiff, Charles P. Pride, has not
responded to the Motion. After consideration of the Motion, the record, and the
relevant legal authorities, and for the reasons discussed below, the Court finds that
FEMA’S Motion to Dismiss [26] should be granted in part and denied in part. Except
for his Fifth Amendment “takings” claim, Plaintiff’s claims against FEMA are
precluded by the doctrine of sovereign immunity. His state law tort claims against
FEMA are also barred because he did not submit an administrative claim with FEMA
prior to filing suit.
I. BACKGROUND
Plaintiff, proceeding pro se, has filed a Complaint [1] and Amended Complaint
[23] against FEMA, the City of Biloxi, Mississippi, and various individuals, alleging
violations of the First, Fourth, Fifth, and Fourteenth Amendments, and state law tort
claims. Pl.’s Am. Compl. [23] at p. 1. Plaintiff claims that in 2009, Defendants
wrongfully seized a FEMA trailer on his property without his consent. Id. at p. 2. He
alleges that Defendants also denied him disaster housing assistance. Id. He
complains of wrongful “police action” and a retaliatory bill collection. Id. at pp. 2-3.
FEMA has filed a Motion to Dismiss for lack of subject matter jurisdiction, pursuant
to FED. R. CIV. P. 12(b)(1). FEMA’s Mot. to Dismiss [26] at pp. 1-2.
II. DISCUSSION
A.
Legal Standard
A motion to dismiss under Rule 12(b)(1) challenges a federal court’s subject
matter jurisdiction. FED. R. CIV. P. 12(b)(1). The burden on a Rule 12(b)(1) motion is
on the party asserting jurisdiction. Ramming v. United States, 281 F.3d 158, 161 (5th
Cir. 2001). “A Rule 12(b)(1) motion should be granted only if it appears certain that
the plaintiff cannot prove a plausible set of facts that establish subject-matter
jurisdiction.” Davis v. United States, 597 F.3d 646, 649 (5th Cir. 2009)(internal
citations omitted). “[U]nder Rule 12(b)(1), the court may find a plausible set of facts
by considering any of the following: (1) the complaint alone; (2) the complaint
supplemented by the undisputed facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts plus the court’s resolution of disputed facts.” Lane
v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008)(internal citations omitted).
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B.
Plaintiff’s Federal Claims
“Absent a waiver, sovereign immunity shields the Federal Government and its
agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); Duffie v. United
States, 600 F.3d 362, 384 (5th Cir. 2010). Federal courts are without subject matter
jurisdiction to hear suits against the United States unless there has been a waiver of
sovereign immunity. United States v. Sherwood, 312 U.S. 584, 591 (1941).
Plaintiff asserts claims against FEMA, an agency of the United States,
pursuant to the civil rights statutes, 42 U.S.C. §§ 1983 and 1985, for alleged
violations of the First, Fourth, Fifth, and Fourteenth Amendments. Pl.’s Am. Compl.
[23] at p. 1. The United States has not waived sovereign immunity with regard to
alleged civil rights violations and most constitutional violations. Correctional Servs.
Corp. v. Malesko, 534 U.S. 61, 72 (2001); Partain v. Isgur, No. 09-41129, 390 Fed.
App’x 326, 329 (5th Cir. 2010)(“the United States has not, in the FTCA or elsewhere,
waived sovereign immunity with regard to alleged civil rights or constitutional
violations . . . .”); Affiliated Prof’l Home Health Care Agency v. Shalala, 164 F.3d 282,
286 (5th Cir. 1999).
Through the Tucker Act, 28 U.S.C. § 1346(a)(2), the United States has waived
sovereign immunity for certain civil actions for money damages “founded either upon
the Constitution or any Act of Congress.” 28 U.S.C. § 1346(a)(2); see Persyn v. United
States, 935 F.2d 69, 72 (5th Cir. 1991). The district court and Court of Federal
Claims have concurrent jurisdiction to resolve Tucker Act claims not exceeding
$10,000.00. 28 U.S.C. § 1346(a)(2); see Persyn, 935 F.2d at 72. The Court of Federal
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Claims has exclusive jurisdiction of Tucker Act claims exceeding $10,000.00. 28
U.S.C. § 1346(a)(2); see Persyn, 935 F.2d at 72. “[C]ourts have uniformly held that
jurisdiction under the ‘founded upon the constitution’ grant of the Tucker Act is
limited to claims under the ‘takings clause’ of the Fifth Amendment.” Rothe Dev.
Corp. v. U.S. Dept. of Defense, 194 F.3d 622, 625-26 n.6 (5th Cir. 1999)(internal
citations omitted).
Based on the foregoing authority, Plaintiff’s Fifth Amendment “takings” claim
against FEMA is not barred by sovereign immunity. His remaining federal claims
against FEMA are, however, precluded by sovereign immunity. It is not clear from
the face of Plaintiff’s Complaint whether he is seeking less than $10,000.00 in
damages against FEMA for his Fifth Amendment “takings” claim. At this juncture,
the Court will not dismiss this claim. Plaintiff’s remaining federal claims against
FEMA will be dismissed.
C.
Plaintiff’s State Law Claims
The Court liberally construes Plaintiff’s Amended Complaint to also assert
claims against FEMA under Mississippi law for malicious prosecution, abuse of
process, misrepresentation, and interference with contract. Pl.’s Am. Compl. [23] at
pp. 1-4. Through the Federal Tort Claims Act, 28 U.S.C. § 1346, et seq. (“FTCA”), the
United States has “generally waived its sovereign immunity from tort liability for the
negligent or wrongful acts or omissions of its agents who act within the scope of their
employment.” Truman v. United States, 26 F.3d 592, 594 (5th Cir. 1994). There are a
number of statutory exceptions to this waiver. The “intentional tort” exception
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provides that the United States does not consent to suit for “[a]ny claim arising out of
assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or interference with contract rights.”
28 U.S.C. § 2680(h). Because the United States has not consented to be sued for
malicious prosecution, abuse of process, or interference with contract claims,
Plaintiff’s state law tort claims against FEMA must be dismissed.
Plaintiff’s state law tort claims against FEMA are also barred because Plaintiff
did not submit an administrative claim with FEMA prior to filing suit. Decl. of
Joshua B. Stanton [26-1], Ex. 1 to Def.’s Mot. to Dismiss [26]. 28 U.S.C. § 2675 states
that an action “for money damages for injury or loss of property or personal injury . .
.” cannot be filed against the United States unless the plaintiff has “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). Plaintiff has not submitted any proof that he complied with this statutory
requirement. Plaintiff’s state law tort claims against FEMA must be dismissed for
this reason as well.
III. CONCLUSION
For the foregoing reasons, FEMA’s Motion to Dismiss [26] pursuant to FED. R.
CIV. P. 12(b)(1) should be granted in part and denied in part. Apart from Plaintiff’s
Fifth Amendment “takings” claim, the Court does not have subject matter jurisdiction
over Plaintiff’s claims against FEMA.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, FEMA’s Motion
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to Dismiss [26] is GRANTED IN PART AND DENIED IN PART.
IT IS, FURTHER, ORDERED AND ADJUDGED that, all of Plaintiff’s
claims against FEMA, with the exception of his Fifth Amendment “takings” claim, are
dismissed with prejudice.
SO ORDERED AND ADJUDGED, this the 13th day of September, 2012.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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