Aliane v. United States Marshal's Service et al

Filing 23

ORDER granting 21 Motion to Substitute Party. UNITED STATES OF AMERICA added. United States Marshals Service terminated; granting 22 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Algenon L. Marbley on 12/11/2015. (cw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MALEK BOUZID ALIANE,

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Plaintiff,
v.
UNITED STATES MARSHALS
SERVICE, et al.,

Defendants.

Case No. 2:14-CV-0602
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

OPINION & ORDER
This matter is before the Court on the Motion of the United States to Substitute the
United States in the Place and Stead of Federal Defendants United States Marshals Service
(“Marshals Service”) and Defendant Mark Stroh, Deputy U.S. Marshal for the Southern District
of Ohio (Doc. 21); and the Motion of the United States, Defendant United States Marshals
Service, and Defendant Mark Stroh (collectively, “Defendants”) to Dismiss Plaintiff’s Complaint
for lack of subject-matter jurisdiction. (Doc. 22.) For the reasons that follow, the Court
GRANTS both motions.
I.

BACKGROUND

Plaintiff Malek Bouzid Aliane, proceeding pro se, filed this action on June 16, 2014
while he was incarcerated at the Federal Correctional Institution in Forrest City, Arkansas. (Doc.
2.) In his complaint, he alleges the following facts. Plaintiff surrendered to Defendant Stroh on
June 12, 2012 and Defendant Stroh transported him to the Franklin County Corrections Center I
in Columbus, Ohio. (Id. ¶¶ 11-12.) During the booking process, Defendant Stroh confiscated all

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property in Plaintiff’s immediate possession. (Id. ¶ 12.) On March 7, 2013, Plaintiff was
transferred to federal prison, at which time Defendant Stroh informed him that he had sent
Plaintiff’s property to Plaintiff’s ex-girlfriend because during booking Plaintiff had verbally
given him permission to do so. (Id. ¶ 14.) On June 18, 2012, Defendant Stroh sent several items
via Federal Express to Plaintiff’s ex-girlfriend, including $1,677.00 in United States currency,
two gold money clips, a wallet, a belt, six family photos, eight credit cards, and his Ohio Driver
License. (Id. ¶ 17.) Plaintiff stated that he did not give written authorization to Defendant Stroh
to send these items to his ex-girlfriend. (Id. ¶¶ 17, 14.) The property has not been returned to
him. (Id. ¶ 20.)
Plaintiff filed an administrative damages claim with the Marshals Service alleging that
Defendant Stroh failed to follow proper procedures for releasing property. (Doc. 22-3 at 9.) On
November 14, 2013, Marshals Service General Counsel Gerald M. Auerbach denied the claim on
the basis that there was no evidence of “any negligence or wrongful acts on the part of any U.S.
Government employee” because the property was sent to the person he had designated, Tomika
Buckner, at the address he had provided to the Marshals Service. (Doc. 22-3 at 8.) Plaintiff
requested reconsideration of the denial of his claim on November 26, 2013 and, before he had
received a response, filed a second request for reconsideration on January 13, 2014. (See Doc.
22-3 at 19.) The Marshals Service denied the request for reconsideration of the administrative
claim on October 9, 2014. (Id.)
While the request for reconsideration was pending, Plaintiff commenced this negligence
action under the Federal Tort Claims Act (“FTCA”) in the Eastern District of Arkansas, where he
was incarcerated. (See Doc. 1.) The case was subsequently transferred to this Court. (Id.)
Plaintiff requests compensatory damages for the loss of his property, as well as pre- and post-

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judgment interest and costs. (Doc. 2 ¶¶ 21-23.) The United States filed a Motion to Substitute
Party and, along with Defendants Stroh and the United States Marshal Service, a Motion to
Dismiss for Lack of Jurisdiction. (Docs. 21, 22.) Plaintiff did not file a response to the motions.
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(1) permits a party to raise the defense of lack of
subject-matter jurisdiction by motion. “If the court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). Plaintiff bears
the burden of proving jurisdiction when subject matter jurisdiction is challenged under Rule
12(b)(1). Rogers v. Stratton Indus., 798 F.2d 913, 915 (6th Cir. 1986).
Motions to dismiss for lack of subject-matter jurisdiction generally fall into two
categories: facial attacks and factual attacks. Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co.,
491 F.3d 320, 330 (6th Cir. 2007). A facial attack is a challenge to the sufficiency of the
pleading and requires the court to take all of the allegations in the complaint as true. Carrier
Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir. 2012). A factual attack, however, allows
the court to “weigh evidence to confirm the existence of the factual predicates for subject-matter
jurisdiction.” Id. Here, Defendants mount a facial challenge to Plaintiff’s negligence claim, and
the Court will thus take the factual allegations in Plaintiff’s complaint as true.
III.

ANALYSIS

A. Motion to Substitute
The FTCA provides that the United States may be liable for state-law tort claims caused
by its employees acting within the scope of their employment, in the same manner and to the
same extent as a private individual under like circumstances. 28 U.S.C. § 2674; 28 U.S.C. §
1346(b)(1). This remedy is “exclusive of any other civil action or proceeding for money

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damages by reason of the same subject matter against the employee whose act or omission gave
rise to the claim.” 28 U.S.C. § 2679(b)(1). Any other civil action “arising out of or relating to
the same subject matter against the employee . . . is precluded.” Id.
Under 28 U.S.C. § 2679(d)(1), “[u]pon certification of the Attorney General,” or, under
28 C.F.R. § 15.4(a), the appropriate United States Attorney,
that the defendant employee was acting within the scope of his office or
employment at the time of the incident out of which the claim arose, any
civil action or proceeding commenced upon such claim in a United States
district court shall be deemed an action against the United States under the
provisions of this title and all references thereto, and the United States
shall be substituted as the party defendant.
28 U.S.C. § 2679(d)(1). The United States moved to substitute itself as a party in the place and
stead of Defendants Stroh and the Marshals Service with respect to common law tort claims in
Plaintiff’s complaint. In support of the motion, the United States attached a certification from
Carter M. Stewart, United States Attorney for the Southern District of Ohio, stating that
Defendant Stroh was operating within the scope of his federal employment at the time of the
incidents alleged in the complaint. (Doc. 21-1.)
The Supreme Court has stated that the “Attorney General's certification that a federal
employee was acting within the scope of his employment . . . does not conclusively establish as
correct the substitution of the United States as defendant in place of the employee.” Gutierrez de
Martinez v. Lamagno, 515 U.S. 417, 434 (1995). A plaintiff challenging certification, however,
“must present evidence from which a District Court reasonably could find that the original
defendant-employee acted outside the scope of her employment.” Allstate Ins. Co. v. Quick, 107
F. Supp. 2d 900, 904-05 (S.D. Ohio 1999) (emphasis in original). The certification serves as
prima facie evidence that an employee acted within the scope of employment, and therefore a
plaintiff cannot defeat substitution “merely by relying upon the factual allegations in his
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complaint.” Id. at 905 (citing Rutkofske v. Norman, 114 F.3d 1188, 1997 WL 299382, at *4 (6th
Cir. June 4, 1997)). Because the United States Attorney has certified that Stroh was acting
within the scope of his employment when he sent Plaintiff’s property to Ms. Buckner, and
Plaintiff has presented no evidence to the contrary, substitution of the United States is proper.
The Court GRANTS the Motion to Substitute.
B. Motion to Dismiss for Lack of Subject-Matter Jurisdiction
Congress has waived the United States’ sovereign immunity for claims arising out of
torts committed by federal employees. Ali v. Federal Bureau of Prisons, 552 U.S. 214, 217-18
(2008) (citing 28 U.S.C. § 1346(b)(1)). Although the FTCA is a broad waiver of sovereign
immunity, Defendant contends that Plaintiff’s claim is barred by the exception to the waiver of
sovereign immunity found in 28 U.S.C. § 2680(c), which provides that the waiver shall not apply
to “[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or
the detention of any goods, merchandise, or other property by any officer of customs or excise or
any other law enforcement officer.” The Court must determine whether Defendant Stroh is a
“law enforcement officer” under the statute and whether Plaintiff’s claim arises out of the
“detention” of his property.
The first question has been settled by Ali v. Federal Bureau of Prisons, in which the
Supreme Court interpreted the phrase “any other law enforcement officer” broadly, to encompass
all federal law enforcement officers and not simply those officers acting in a customs or excise
capacity. 552 U.S. at 227-28. United States Marshals are clearly federal law enforcement
officers under this definition. Therefore, Ali controls this case and bars a claim for detention of
property by a Deputy United States Marshal.

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The Supreme Court has also read the detention clause of § 2680(c) broadly, holding that
“‘any claim arising in respect of’ the detention of goods means any claim ‘arising out of’ the
detention of goods, and includes a claim resulting from negligent handling or storage of detained
property.” Kosak v. United States, 465 U.S. 848, 854 (1984). Although the Sixth Circuit has not
considered the question of whether property seized by law enforcement officers and transferred
to a third party is deemed to be “detained” under § 2680(c), other circuits have held that
“confiscation followed by sending property to a known recipient is a ‘detention’ for purposes of
the exception set forth in § 2680(c).” Parrott v. United States, 536 F.3d 629, 636 (7th Cir.
2008). See also Hatten v. White, 275 F.3d 1208, 1210 (10th Cir. 2002) (holding that Ҥ 2680(c)
applies where a prisoner alleges that defendant prison officials detained his personal property
and mailed it outside the prison”); Schlaebitz v. U.S. Dep’t of Justice, 924 F.2d 193, 194 (11th
Cir. 1991) (per curiam) (“[T]he injury [the plaintiff] asserts, loss of his property because it was
improperly released to a third party, is certainly within the contours of section 2680(c) and
Kosak.”). The Court concludes that Plaintiff’s property was detained and that his claim arose out
of the detention of his property. Therefore, the exception to the waiver of sovereign immunity
under the FTCA applies to Plaintiff’s claim. The Court lacks subject-matter jurisdiction over
Plaintiff’s claim and thus GRANTS Defendants’ Motion to Dismiss.
IV.

CONCLUSION

For the reasons stated above, the Court GRANTS the United States’ Motion to Substitute
and Defendants’ Motion to Dismiss. This case is DISMISSED for lack of jurisdiction.
IT IS SO ORDERED.
s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
Dated: December 11, 2015
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