SANTIAGO v. MCCLASKEY
Filing
63
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 8/20/2015; that Defendants' Motion to Dismiss (Docket Entry 52 ) is GRANTED IN PART, in that Plaintiff's commonlaw assault claim against the United States (as subst ituted for Defendant Rios) is DISMISSED WITH PREJUDICE. FURTHER that the Clerk shall prepare Summonses for the United States Attorney for this district and the United States Attorney General, as provided in Federal Rule of Civil Procedu re 4(i)(1)(A) and mail those Summonses to Plaintiff at the address which appears on the docket. FURTHER that Plaintiff shall, on or before September 30, 2015, serve by registered or certified mail the United States Attorney for this district and the United States Attorney General, as provided by Federal Rule of Civil Procedure 12(i)(1). Failure to comply with this Order may result in dismissal of Plaintiff's excessive-force claim against Defendant Rios without further notice to Plaintiff. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RAYMOND SANTIAGO GARCIA,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
J.P. MCCLASKEY, et al.,
Defendants.
1:12CV93
MEMORANDUM OPINION AND ORDER
This case comes before the Court on Defendant Rios and the
United States of America’s Motion to Dismiss.
(Docket Entry 52.)1
For the reasons that follow, the Court will grant in part the
instant Motion as to Plaintiff’s state-law assault claim against
Defendant Rios.
PROCEDURAL HISTORY
Plaintiff commenced this case by filing a pro se prisoner form
Complaint
under 42
U.S.C.
§
1983 alleging
violations
of
his
constitutional rights in connection with a search, seizure, and
subsequent detention.
(Docket Entry 1.)
Plaintiff amended his
Complaint once as of right (Docket Entry 4), and obtained the
Court’s leave to file a Third Amended Complaint.
at
22;
1
see
also
Docket
Entry
38
(Docket Entry 37
(Plaintiff’s
Third
Amended
The Parties have consented to disposition of this case by a
United States Magistrate Judge. (Docket Entry 31.)
Complaint).)2
However, in reviewing Plaintiff’s proposed Third
Amended Complaint, the Court granted in part Defendants’ Motion to
Dismiss, such that only the claims for excessive force (under
federal law) and common-law assault (under state law) survive.
(Docket Entry 37 at 22-23.)
The United States then filed a Notice of Substitution pursuant
to the Federal Tort Claims Act (“FTCA”), as amended by the Westfall
Act, 28 U.S.C. § 2679(d), as to Plaintiff’s common-law assault
claim against Defendant Rios (Docket Entry 51 at 1-3), based on
United States Attorney Ripley Rand’s certification that Defendant
Rios (a Special Agent for the United States Immigration and Customs
Enforcement
(“ICE”))
acted
within
the
scope
of
his
federal
employment at the time of Plaintiff’s alleged injuries (Docket
Entry 51-1 at 1-2).
Defendant Rios and the United States now move
to dismiss Plaintiff’s Third Amended Complaint, asserting: first,
that the Court should dismiss Plaintiff’s excessive-force claim
against Defendant Rios because Plaintiff has failed to properly
serve the United States, as required by Federal Rule of Civil
Procedure 4(i)(3), and, second, that the Court should dismiss
Plaintiff’s common-law assault claim against the United States (as
2
Plaintiff also filed a Second Amended Complaint (Docket
Entry 7), but did so without Defendants’ consent or any showing
that the interests of justice so required and, thus, the Court
entered an Order striking the Second Amended Complaint (Text Order
dated Aug. 8, 2012).
In addition, the Court denied as moot
Plaintiff’s Fourth Motion to Amend. (Docket Entry 37 at 24.)
2
substituted for Defendant Rios under the Westfall Act) because
Plaintiff failed to timely exhaust administrative remedies, a
necessary prerequisite to bringing suit under the FTCA.
Entry 53 at 6-9.)
(Docket
Plaintiff responded (Docket Entry 59) and
Defendants replied (Docket Entry 61).
Plaintiff then made an
additional filing entitled “Motion to Not Dismiss Defendant Rios
from Instant Action.”
(Docket Entry 62.)
DISCUSSION
A.
Plaintiff’s Failure to Serve the United States
The Federal Rules of Civil Procedure provide: “To serve a
United States officer or employee sued in an individual capacity
for
an
act
or
omission
occurring
in
connection
with
duties
performed on the United States’ behalf . . . , a party must serve
the United States and also serve the officer or employee . . .”
Fed. R. Civ. P. 4(i)(3) (emphasis added).
Accordingly,
To serve the United States, a party must . . . deliver a
copy of the summons and of the complaint to the United
States attorney for the district where the action is
brought . . . [or] send a copy of each by registered or
certified mail to the civil-process clerk at the United
States Attorney’s office . . . [and] send a copy of each
by registered or certified mail to the Attorney General
of the United States . . . .
Fed. R. Civ. P. 4(i)(1).
Based on Plaintiff’s alleged failure to
satisfy
requirements,
the
Plaintiff’s
foregoing
excessive-force
claim
3
Defendants
should
be
assert
dismissed
that
without
prejudice for insufficient service of process under Federal Rule of
Civil Procedure 12(b)(5).
(Docket Entry 53 at 5-7.)3
“Under Rule 12(b)(5) of the Federal Rules of Civil Procedure,
a defendant can move to dismiss a complaint where service of
process failed to comply with the requirements of Rule 4 of the
Federal Rules of Civil Procedure.”
Smith v. St. Francis Hosp.,
Civ. A. No. 6:12–2533–TMC–JDA, 2013 WL 3973170, at *2 (D.S.C. July
31, 2013) (unpublished).
In that regard:
3
Defendants also seek relief under Federal Rule of Civil
Procedure 12(b)(2) (for dismissal based on lack of personal
jurisdiction); however, a respected treatise instructs that:
Although the questions of personal jurisdiction and
service of process are closely interrelated, service of
process is merely the means by which a federal court
gives notice to the defendant and asserts jurisdiction
over him; the actual existence of personal jurisdiction
should be challenged by a Rule 12(b)(2) motion. A few
courts have noted this distinction between the motions,
but the cases indicate that it generally is quite
acceptable to question the court’s jurisdiction by a
motion objecting to service of process. The occasional
judicial failure to distinguish sharply between the two
has not caused any difficulty, however, because the
courts have been able to determine the merits of the real
issue before them regardless of how the motion is
designated and nothing appears to turn on the
misdesignation.
Wright & Miller, et al., 5B Federal Practice & Procedure
§ 1353 (3d ed. 1998) (internal footnotes omitted). Because
Defendants’ challenge to personal jurisdiction only relies on
allegations concerning deficient service of process (see
Docket Entry 53 at 6-7), Rule 12(b)(5) best applies, see Plant
Genetic Sys., N.V. v. Ciba Seeds, 933 F. Supp. 519, 526
(M.D.N.C. 1996) (Osteen, Sr., J.) (“A motion to dismiss under
Rule 12(b)(5) is the appropriate means for challenging the
manner or sufficiency of service of process.”).
4
When the process gives the defendant actual notice of the
pendency of the action, the rules, in general, are
entitled to a liberal construction. When there is actual
notice, every technical violation of the rule or failure
of strict compliance may not invalidate the service of
process. But the rules are there to be followed, and
plain requirements for the means of effecting service of
process may not be ignored.
Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087,
1089 (4th Cir. 1984).
“Even so, courts generally allow pro se
plaintiffs a chance to remedy technical insufficiencies in service
of process.” Thomas v. Nelms, No. 1:09CV491, 2013 WL 593419, at *1
(M.D.N.C. Feb. 14, 2013) (unpublished) (Eagles, J.).
The record reflects that Plaintiff served neither the United
States Attorney for this district nor the Attorney General.
Docket Entries 9, 42.)
(See
Plaintiff’s instant filings do not assert
otherwise, and, indeed, fail to address the issue of service of
process at all.
(See Docket Entries 59, 62.)
Notwithstanding the
foregoing:
Dismissal of an action against a defendant under Rule
12(b)(5) for insufficiency of service is within the
discretion of the court. Ordinarily, dismissal is proper
when there is prejudice to the defendant or where proper
service is unlikely to be accomplished. Absent prejudice
to the defendant and when service can be accomplished,
courts generally will quash the insufficient service and
allow a plaintiff to perfect service . . . .
Argot v. Harden, Civ. A. No. 4:11–2755–MBS–TER, 2012 WL 6839310, at
*5 (D.S.C. Sept. 27, 2012) (unpublished) (internal citations and
quotation
marks
omitted).
Defendant
has
not
identified
circumstances that would establish prejudice or that would prevent
5
Plaintiff from curing the defects in service. (See Docket Entry 53
at 6-7; Docket Entry 61 at 1-2.)
Under these circumstances, the Court will direct the Clerk to
prepare and issue proper Summonses for the United States Attorney
for this district and the United States Attorney General, and mail
those Summonses to Plaintiff at the address which appears on the
docket.
Plaintiff must then properly serve the United States
Attorney and the United States Attorney General by registered or
certified mail, pursuant to Federal Rules of Civil Procedure
4(i)(1)(A) and (3).
However, should Plaintiff fail to properly
serve Defendants in compliance with Federal Rule of Civil Procedure
4, the Court may dismiss Plaintiff’s excessive-force claim against
Defendant Rios without further notice to him.
B.
Plaintiff’s Failure to Timely Present His Claim to ICE
The FTCA mandates that “the claimant shall have 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).
Specifically, a
claimant must “present[] [the claim] in writing to the appropriate
Federal agency within two years after such claim accrues . . . .”
28 U.S.C. § 2401(b).
If the agency denies the claim, the claimant
must commence an action “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.”
6
Id.
Otherwise, “[a] tort claim against the United States shall be
forever barred . . . .”
Id.
For that reason, Defendants contend
that Plaintiff’s failure to timely present his claim to ICE (or any
other relevant agency) bars his action under the FTCA. (See Docket
Entry 53 at 8-9.)
Defendants additionally assert that the FTCA’s presentment
requirement qualifies as a jurisdictional prerequisite to an FTCA
claim, citing authority from the United States Court of Appeals for
the Fourth Circuit and this Court.
(See id. at 9 (citing Gould v.
United States Dep’t of Health & Human Servs., 905 F.2d 738, 741
(4th Cir. 1990), Grumette v. United States, No. 1:11CV37, 2012 WL
3113143, at *2 (M.D.N.C. July 31, 2012) (unpublished), and Smith v.
United States, No. 1:10CV112, 2011 WL 4899933, at *8 (M.D.N.C. Oct.
14, 2011) (unpublished)).)
seek
dismissal
of
Based on that authority, Defendants
Plaintiff’s
common-law
assault
claim
under
Federal Rule of Civil Procedure 12(b)(1) (for lack of subjectmatter jurisdiction), as well as Federal Rule of Civil Procedure
12(b)(6) (for failure to state a claim upon which relief can be
granted).
(See Docket Entry 53 at 5-6, 8-9.)
The United States Supreme Court recently ruled that “Section
2401(b) is not a jurisdictional requirement.
the FTCA are just time limits, nothing more.
The time limits in
Even though they
govern litigation against the Government, a court can toll them on
equitable grounds.”
United States v. Kwai Fun Wong, __ U.S. __,
7
__, 135 S. Ct. 1625, 1633 (2015).
In light of that holding, the
Court may not dismiss Plaintiff’s common-law assault claim for lack
of subject-matter jurisdiction.
Dismissal of that claim nonetheless remains appropriate.
In
that regard, Plaintiff’s Complaint indicates that he sustained his
alleged injuries on August 16, 2011 (Docket Entry 1 at 3) and
neither Plaintiff’s Third Amended Complaint nor his instant filings
refer to any presentment of his claims before ICE or any other
agency.
(See Docket Entries 38, 59, 62.)
Given that well over two
years have elapsed since Plaintiff’s alleged injuries, Plaintiff
cannot now timely present his claim before ICE to satisfy the FTCA.
See 28 U.S.C. § 2401(b).
Moreover, neither Plaintiff’s Third
Amended Complaint nor his instant filings request equitable tolling
of
the
two-year
administrative
deadline
or
set
forth
circumstances to support his entitlement to such relief.
any
(See
Docket Entries 38, 59, 62.)
In sum, the FTCA’s presentment requirement bars Plaintiff’s
common-law assault claim and the Court will thus dismiss that claim
under Federal Rule of Civil Procedure 12(b)(6), for failure to
state a claim upon which relief can be granted.
CONCLUSION
Defendants have established grounds for relief under Federal
Rule of Civil Procedure 12(b)(6) as to Plaintiff’s common-law
assault claim (under state law).
8
However, the Court will take
further steps to effect proper service on the United States before
considering dismissal of Plaintiff’s excessive-force claim (under
federal law) on grounds of improper service.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss
(Docket Entry 52) is GRANTED IN PART, in that Plaintiff’s commonlaw assault claim against the United States (as substituted for
Defendant Rios) is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Clerk shall prepare Summonses
for the United States Attorney for this district and the United
States Attorney General, as provided in Federal Rule of Civil
Procedure 4(i)(1)(A) and mail those Summonses to Plaintiff at the
address which appears on the docket.
IT IS FURTHER ORDERED that Plaintiff shall, on or before
September 30, 2015, serve by registered or certified mail the
United States Attorney for this district and the United States
Attorney General, as provided by Federal Rule of Civil Procedure
12(i)(1).
Failure
to
comply
with
this
Order
may
result
in
dismissal of Plaintiff’s excessive-force claim against Defendant
Rios without further notice to Plaintiff.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 20, 2015
9
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