Hamilton v. United States of America

Filing 14

ORDER ADOPTING 11 Report and Recommendation. Plf's complaint alleging a claim under the Federal Tort Claims Act is dismissed for lack of subject matter jurisdiction. To the extent plf's complaint alleges a separate due process claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1941), the claim is dismissed for failure to state a claim upon which relief may be granted. Signed by Honorable Stephen P. Friot on 11/13/2017. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DUANE HAMILTON,
Plaintiff,
-vsUNITED STATES OF AMERICA,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. CIV-17-850-F

ORDER
United States Magistrate Judge Bernard M. Jones issued a Report and
Recommendation on October 12, 2017, recommending that plaintiff’s complaint be
dismissed pursuant to 28 U.S.C. § 1915A(b)(1) because the court lacks subject
matter jurisdiction over plaintiff’s claim under the Federal Tort Claims Act (FTCA),
28 U.S.C. § 1346(b)(1). In addition, Magistrate Judge Jones recommended that to
the extent plaintiff’s complaint alleges a separate due process claim pursuant to
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971), the claim be dismissed for failure to state a claim upon which relief may
be granted.
Presently before the court is plaintiff’s timely objection to the Report and
Recommendation. Plaintiff objects to Magistrate Judge Jones’ construction of his
complaint as seeking to have the Federal Bureau of Prisons (FBOP) pay him $778.65
in damages for the loss of plaintiff’s property caused by United Parcel Service
(UPS). Plaintiff asserts that he is actually seeking to have the FBOP forward to him,
or credit his commissary account with, the claim settlement paid by UPS to FBOP
for the loss of plaintiff’s property. Plaintiff contends that Magistrate Judge Jones’

analysis of the exception to the FTCA’s waiver of sovereign immunity, set forth in
28 U.S.C. § 2680(c), is irrelevant to his claim as properly construed. He additionally
contends that the Supreme Court’s decision in Ali v. Federal Bureau of Prisons, 552
U.S. 214 (2008), does not apply to his FTCA claim.
In accordance with 28 U.S.C. § 636(b)(1), the court has conducted a de novo
review of the matter. The court agrees with Magistrate Judge Jones that plaintiff’s
complaint alleging a FTCA claim is subject to dismissal for lack of subject matter
jurisdiction. Even if plaintiff’s complaint can be liberally construed as seeking to
have the FPOB forward to him the settlement purportedly paid by UPS or to have
the settlement credited to his commissary account, the court concludes that the
exception to the FTCA’s waiver of sovereign immunity, § 2680(c), applies. The
FTCA’s waiver of sovereign immunity does not apply to “any claim arising in
respect of . . . the detention of any goods, merchandise, or other property by . . . any
other law enforcement officer.” 28 U.S.C. § 2680(c) (emphasis added). Plaintiff’s
claim, as he articulates it, arises in respect of the FBOP’s alleged unlawful detention
of the settlement paid by UPS to FBOP for plaintiff’s lost property. Because
plaintiff’s claim falls within the exception to the FTCA’s waiver of sovereign
immunity, the court lacks subject matter jurisdiction over plaintiff’s claim. The
court therefore accepts, adopts and affirms Magistrate Judge Jones’ recommended
ruling.
Plaintiff has not objected to Magistrate Judge Jones’ Report and
Recommendation insofar as it recommends that to the extent plaintiff alleges a
separate due process claim under Bivens, it be dismissed for failure to state a claim
upon which relief can be granted. As plaintiff has not objected to Magistrate Judge
Jones’ recommended ruling and has been advised that failure to timely object to the

2

recommended ruling waives the right to appellate review, the court accepts, adopts
and affirms the recommended ruling.1
Accordingly, the Report and Recommendation of United States Magistrate
Judge Bernard M. Jones issued on October 12, 2017 (doc. no. 11) is ACCEPTED,
ADOPTED and AFFIRMED. Plaintiff’s complaint alleging a claim under the
Federal Tort Claims Act is dismissed for lack of subject matter jurisdiction. To the
extent plaintiff’s complaint alleges a separate due process claim under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1941), the
claim is dismissed for failure to state a claim upon which relief may be granted.
IT IS SO ORDERED this 13th day of November, 2017.

17-0850p002.docx

1

The court also notes that a Bivens claim cannot be asserted directly against the United States of
America. Smith v. U.S., 561 F.3d 1090, 1099 (10th Cir. 2009). Nor can it be asserted against a
federal agency. Id.

3