DANIELS v. DEPART OF THE ARMY et al

Filing 4

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD, signed on 10/28/2014. IT IS THERFORE ORDERED that Plaintiff's Application for Leave to Proceed In Forma Pauperis and Affidavit/Declaration in Support 1 is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL. IT IS RECOMMENDED that this action 2 be dismissed pursuant to 28 U.S.C. § 1915 (e)(2)(B). (Coyne, Michelle)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ALTHEA ALLEN DANIELS,

)
)
Plaintiff,
)
)
v.
)
)
DEPARTMENT OF THE ARMY, et al., )
)
Defendants.
)

1:14CV728

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiff’s Application
for Leave to Proceed In Forma Pauperis (Docket Entry 1), filed in
conjunction with Plaintiff’s pro se Complaint (Docket Entry 2).
The Court will grant Plaintiff’s request to proceed as a pauper for
the limited purpose of recommending dismissal of this action, under
28 U.S.C. § 1915(e)(2)(B) as frivolous and for failure to state a
claim.
LEGAL BACKGROUND
“The federal in forma pauperis [‘IFP’] statute, first enacted
in 1892 [and now codified at 28 U.S.C. § 1915], is intended to
guarantee that no citizen shall be denied access to the courts
‘solely because his poverty makes it impossible for him to pay or
secure the costs.’”

Nasim v. Warden, Md. House of Corr., 64 F.3d

951, 953 (4th Cir. 1995) (en banc) (quoting Adkins v. E.I. DuPont
de Nemours & Co., 335 U.S. 331, 342 (1948)).

“Dispensing with

filing fees, however, [is] not without its problems.

Parties

proceeding under the statute d[o] not face the same financial
constraints as ordinary litigants.

In particular, litigants suing

[IFP] d[o] not need to balance the prospects of successfully
obtaining relief against the administrative costs of bringing
suit.”

Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th

Cir. 2004).

To address this concern, the IFP statute provides, in

relevant part, that “the court shall dismiss the case at any time
if the court determines that – . . . (B) the action or appeal – (i)
is frivolous . . . [or] (ii) fails to state a claim on which relief
may be granted . . . .”

28 U.S.C. § 1915(e)(2).

As to the first of these grounds for dismissal, the United
States Supreme Court has explained that “a complaint, containing as
it

does

both

factual

allegations

and

legal

conclusions,

is

frivolous where it lacks an arguable basis either in law or in
fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989).

‘frivolous’

is

inherently

elastic

categorical definition. . . .

and

not

“The word

susceptible

to

The term’s capaciousness directs

lower courts to conduct a flexible analysis, in light of the
totality of the circumstances, of all factors bearing upon the
frivolity of a claim.”

Nagy, 376 F.3d at 256-57 (some internal

quotation marks omitted). Because a plaintiff who brings an action
in federal court “has the burden of proving the existence of
subject matter jurisdiction,” Jones v. American Postal Workers

2

Union, 192 F.3d 417, 422 (4th Cir. 1999); see also Fed. R. Civ. P.
8(a) (requiring pleadings to set forth “a short and plain statement
of the grounds for the court’s jurisdiction, unless the court
already has jurisdiction and the claim needs no new jurisdictional
support”), the obvious failure to establish federal subject-matter
jurisdiction may render an action frivolous, see, e.g., Overstreet
v. Colvin, No. 4:13CV261–FL, 2014 WL 353684, at *3 (E.D.N.C. Jan.
30, 2014) (unpublished) (“A court may consider subject matter
jurisdiction as part of the frivolity review.”).
Alternatively, a complaint falls short when it does not
“contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”
Iqbal,

556

U.S.

662,

678

(2009)

(emphasis

Ashcroft v.

added)

(internal

citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).

This standard “demands more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.”

Id.

In other

words, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.

Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Id.1

1

Although “[a] document filed pro se is to be liberally
construed and a pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted
by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal
(continued...)
3

DISCUSSION
Plaintiff’s

Complaint

names

the

Department

of

the

Army,

Antonio Matthew Jasinski, and James A. Luevano as Defendants.
(Docket Entry 2 at 1-2.) Although the Complaint itself contains no
factual allegations, it refers to several attachments that together
suggest Plaintiff alleges she suffered injuries when a vehicle
driven by Defendant Jasinski, a Staff Sergeant in the Army, struck
Plaintiff’s vehicle while at a gas station.

(See Docket Entry 2-1

at 1-3 (Department of the Army Form 2823 containing Plaintiff’s
sworn statement), 4 (GSA Standard Form 91 to report accident
involving

federal

motor

vehicle),

7-8

(Plaintiff’s

insurer requesting reconsideration of her claim).)
Plaintiff’s

claims,

Plaintiff

presents

the

letter

to

In support of

following

factual

allegations:
1) “on November 28, 2011[,] [Plaintiff] drove to [a] BP Gas
Station located [in Winston-Salem, North Carolina] . . . [and she]

1

(...continued)
citations and quotation marks omitted), the United States Court of
Appeals for the Fourth Circuit has “not read Erickson to undermine
Twombly’s requirement that a pleading contain more than labels and
conclusions,” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th
Cir. 2008) (internal quotation marks omitted) (dismissing pro se
complaint); accord Atherton v. District of Columbia Office of
Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se complaint
. . . ‘must be held to less stringent standards than formal
pleadings drafted by lawyers.’ But even a pro se complainant must
plead ‘factual matter’ that permits the court to infer ‘more than
the mere possibility of misconduct.’” (quoting Erickson, 551 U.S.
at 94, and Iqbal, 556 U.S. at 679, respectively)).
4

was in the left turning lane and [she] turn[ed] into BP Gas
Staition [sic]” (id. at 1);
2) “when [Plaintiff] was in half way near the first pump[,]
[Defendant Jasinski’s] Silver Ford Focus accelerated with speed and
[Defendant Jasinksi] did not have both hands on the steering wheel
[and] [h]e had a Gatorade bottle to his mouth” (id.);
3) [Defendant Jasinski] hit [Plaintiff’s] van and [they]
looked at each other” (id.);
4) [Plaintiff] felt a shock in [her] back when [she] turned to
the left” (id.);
5) [Defendant Jasinski] then moved his car to the right side
of the BP Gas sign [and] [h]e kept moving the car so it would not
[line] up with [her] van” (id.);
6) “a police officer [who] was driving [p]as[t] the scene of
the accident . . . name[d] Tim Wilson . . . was approached by a
witness that was behind [Plaintiff] to turn [into the] BP Gas
Station[, which witness] gave her telephone number and full name to
[O]fficer [W]ilson . . . [but] she could not stay because she was
on her way to work . . . .” (id. at 3);
7) “Officer Wilson took both [drivers’] registration[s] and
driver licenses and told [them] [they] had to wait for the officer
that was called on the accident” (id.);
8) “two police officers then showed up in two separate cars
. . . [one of whom] was named J.L. Whitegiver . . . .” (id.);

5

9) “[w]hen Officer Whitegiver c[a]me[] outside of [the] BP Gas
Station[,] she [went] to Officer Wilson and rec[e]ive[d] both
drive[r] licenses and the witness name [and] Officer Wilson then
le[ft] the scene” (id.);
10) “[Officer Whitegiver] then approached [Defendant Jasinski]
first to talk to him [while] [t]he [other] officer spoke to
[Plaintiff] and asked if [she] [was] hurt or [in] need [of] a[n]
ambulance” (id.);
11) “[Plaintiff] said yes [and] [t]he officer told [her] to
sit tight until the ambulance c[a]me” (id. at 2);
12) “[the officers] and [Defendant Jasinski] walk[ed] back to
their cars talking and laughing about eight minutes” (id.);
13) after Plaintiff’s mother and the ambulance arrived, “the
police . . . search[ed] [Plaintiff’s] car[,] . . . looking to find
something to find [Plaintiff] at fault . . . [and] try[ing] to tell
[Plaintiff’s] mother that they were going to give [Plaintiff] the
ticket” (id.);
14) Plaintiff’s injuries necessitated “surgery on [her] back
and upper right but[t]” (id. at 8);
15)

Plaintiff

later

discovered

that

“the

[gas

station

security] camera was broken on the same day of the accident [and]
[t]he camera could not record the accident,” (id.); and
16) Plaintiff “was getting harassed by different cars of the
Army being parked in front of [her] house and his friends with

6

unmarked cars [and] [t]here are four witnesses that can verify all
these events that happened” (id.).
Based on the foregoing allegations, Plaintiff seeks recovery
of her medical expenses totaling $56,998.58, as well as damages for
pain and suffering.

(Docket Entry 2 at 4.)

As an initial matter,

Plaintiff’s Complaint identifies Defendant Luevano as a “Sergeant
First Class” but fails to allege any action or culpable misconduct
attributable to him.
In

one

of

(See id. at 1-4; Docket Entry 2-1 at 1-8.)

Plaintiff’s

attachments,

she

states:

“The

fourth

discovery was is [sic] when the Army employee lied to [Defendant]
Luevano about the accident and what took place.
witness.”

(Docket Entry 2-1 at 8.)

There was a

That statement does not give

rise to any inference that Defendant Luevano bears responsibility
for the vehicle accident. For this reason, Plaintiff has failed to
state a claim against Defendant Luevano.
As to the remaining Defendants, the Federal Tort Claims Act
(“FTCA”) provides a cause of action against the United States to
recover for injuries sustained in an automobile accident resulting
from the negligence of a federal employee acting within the scope
of that employment.

See Dolan v. United States Postal Serv., 546

U.S. 481, 487-88 (2006) (“‘One of the principal purposes of the
Federal Tort Claims Act was to waive the Government’s immunity from
liability for injuries resulting from auto accidents in which
employees of the Postal System were at fault.’” (quoting Kosak v.

7

United States, 465 U.S. 848, 855 (1984))); Wilkinson v. United
States,

677

F.2d

998,

998-99

(4th

Cir.

1982)

(describing

requirement that Navy driver had acted in scope of employment to
find United States liable for automobile accident).

Plaintiff’s

Complaint and related filings, however, fail to assert that she
properly exhausted

the

available

administrative

remedies (see

Docket Entry 2 at 1-4; Docket Entry 2-1 at 1-8), as the FTCA
requires, 28 U.S.C. § 2675(a).
In this regard, the FTCA mandates that “the claimant shall
have presented the claim to the appropriate Federal agency and
[her] claim shall have been finally denied by the agency in writing
and sent by certified or registered mail.”

Id.

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.”

Id.

Otherwise, “[a] tort claim against the United States shall be
forever barred . . . .”

Id.

Moreover, the FTCA’s administrative

exhaustion requirement qualifies as jurisdictional.

See McNeil v.

United States, 508 U.S. 106, 109-113 (1993); Ahmed v. United
States, 30 F.3d 514, 516 (4th Cir. 1994).

Therefore, under the

FTCA, “[a] plaintiff’s failure to file a proper administrative

8

claim with the appropriate agency divests a federal court of
subject matter jurisdiction.”

Freeze v. United States, 343 F.

Supp. 2d 477, 481 (M.D.N.C. Nov. 15, 2004) (unpublished) (citing
Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986)).
In the instant case, Plaintiff apparently provided a sworn
statement at an Army recruiting center in Winston-Salem on August
22, 2014 (see Docket Entry 2-1 at 1-3), well over two years
following the automobile accident on November 28, 2011 (see id. at
1).

Thus, even assuming that providing such a statement would

satisfy the FTCA’s administrative exhaustion requirement, Plaintiff
missed the deadline to present her claim to the Army. Furthermore,
Plaintiff has not alleged that the Army actually reviewed and
denied her claim or, in the event that Plaintiff did present her
claim to the Army on an earlier date, that she brought the instant
action within six months of that denial.

(See Docket Entry 2 at 1-

4; Docket Entry 2-1 at 1-8.) Given Plaintiff’s burden to establish
federal subject-matter

jurisdiction,

her

claim

cannot

survive

dismissal under such circumstances.
Alternatively, Plaintiff has not alleged facts to support the
position that Defendant Jasinski acted within the scope of his
employment at the time of the accident.

“‘Acting within the scope

of his office or employment,’ in the case of a member of the
military or naval forces of the United States . . . , means acting
in line of duty.”

28 U.S.C. § 2671.

9

Although Plaintiff’s

attachment of a form used for reporting an accident involving a
federal motor vehicle suggests that Defendant Jasinski may have
been driving a government vehicle (see Docket Entry 2-1 at 4),
“[m]ere proof of the ownership of [a vehicle] by the [A]rmy does
not constitute a presumption or proof that the soldier driving it
was so acting within the scope of his office or employment, or in
the line of duty,” Friedman v. United States, 139 F. Supp. 600, 602
(N.D.

Ill.

1956)

(internal

quotation

marks

omitted)

(citing

Mandelbaum v. United States, 131 F. Supp. 187, 188 (E.D.N.Y. 1955),
rev’d on other grounds, 251 F.2d 748 (2d Cir. 1958)).
Instead, under the FTCA, federal district courts look to the
respondeat

superior

law

of

the

state

where

the

alleged

tort

occurred to determine whether a servicemember acted in the line of
duty.

White v. Hardy, 678 F.2d 485, 486-87 (4th Cir. 1982).

In

the instant case, Plaintiff’s Complaint alleges that the automobile
accident occurred in North Carolina.

(Docket Entry 2-1 at 1.)

Under North Carolina law, “‘[t]o be within the scope of employment,
an employee, at the time of the incident, must be acting in
furtherance of the principal’s business and for the purpose of
accomplishing the duties of his employment.’”

Matthews v. Food

Lion, LLC, 205 N.C. App. 279, 282, 695 S.E.2d 828, 831 (2010)
(quoting Troxler v. Charter Mandala Ctr., 89 N.C. App. 268, 271,
365 S.E.2d 665, 668 (1988)).

Accordingly, “the fact that an

individual operated a vehicle with [his employer’s] knowledge,

10

consent,

or

authorization

[employer’s] liability.”

is

not

not

as

to

the

Jackson v. Carland, 192 N.C. App. 432,

437, 665 S.E.2d 553, 557 (2008).
likely would

determinative

For instance, North Carolina

attribute liability

to

an

employer

for

its

employee’s negligent driving if the employee briefly departed from
his work duties for a personal errand.

See, e.g., Bowser v.

Department of Corr., 147 N.C. App. 308, 311, 555 S.E.2d 618, 621
(2001).
Simply put, Plaintiff’s filings contain no factual allegations
to support a reasonable inference that Defendant Jasinski acted in
the line of duty at the time of the automobile accident.
Docket Entry 2 at 1-4; Docket Entry 2-1 at 1-8.)

(See

“A claim has

facial plausibility when the plaintiff pleads factual content that
allows

the

court

to

draw

the

reasonable

inference

defendant is liable for the misconduct alleged.

that

the

The plausibility

standard . . . asks for more than a sheer possibility that a
defendant has acted unlawfully.”

Iqbal, 556 U.S. at 678 (internal

citations omitted). Plaintiff’s failure on this point also divests
this Court of subject-matter jurisdiction.

See Kerns v. United

States, 585 F.3d 187, 194 (4th Cir. 2009) (“[T]o establish subject
matter

jurisdiction,

an

FTCA

plaintiff

bears

the

burden

of

establishing, inter alia, that the Government employee was acting
within the scope of his or her employment at the time of the
accident.

The scope-of-employment issue is thus, on its face, a

11

jurisdictional one - if [the employee] was acting outside the scope
of her employment with the Government, the district court lacks
jurisdiction

over

[the

plaintiff’s]

FTCA

claim.”).

Nor

has

Plaintiff included factual allegations to support jurisdiction
based on diversity of citizenship for any state-law claim against
Defendant Jasinski individually.
Docket Entry 2-1 at 1-8.)2

(See Docket Entry 2 at 1-4;

For these reasons, this Court lacks

subject-matter jurisdiction and Plaintiff’s Complaint should be
dismissed.
CONCLUSION
Plaintiff’s Complaint falls short as a matter of law.
IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave
to Proceed In Forma Pauperis and Affidavit/Declaration in Support
(Docket Entry 1) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE
COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL.
IT IS RECOMMENDED that this action be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 28, 2014
2

The Complaint identifies Plaintiff as a resident of Forsyth
County, North Carolina (Docket Entry 2 at 1); however, it does not
identify the state citizenship of Defendant Jasinski (see id. at 14; Docket Entry 2-1 at 1-8). Given Plaintiff’s burden to establish
subject-matter jurisdiction, such circumstances cannot satisfy the
diversity jurisdiction statute. See 28 U.S.C. § 1332(a).
12