Perea v. United States Of America et al

Filing 6

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Francisco Perea. Signed by Judge Andrew W. Austin. (lt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
FRANCISCO PEREA #12117-031
V.
UNITED STATES OF AMERICA,
BUREAU OF PRISONS, et al.

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A-18-CV-190-LY

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. §636(b) and Rule 1(f) of Appendix C of the Local Court Rules. Before the
Court is Plaintiff’s complaint. Plaintiff, proceeding pro se, has been granted leave to proceed in
forma pauperis.
STATEMENT OF THE CASE
At the time he filed his complaint pursuant to the Federal Tort Claims Act, Plaintiff was
confined in FCI Bastrop. Plaintiff claims Bureau of Prison employees lost his property when he was
transferred from FCC Forest City to FCI Bastrop on or about September 12, 2016. He values the
property at $6,337. He asserts the Government offered to settle his property claim for $537.28, but
he rejected the offer.
DISCUSSION AND ANALYSIS
A.

Standard Under 28 U.S.C. § 1915(e)

An in forma pauperis proceeding may be dismissed sua sponte under 28 U.S.C. § 1915(e)
if the court determines the complaint is frivolous, malicious, fails to state a claim upon which relief

may be granted or seeks monetary relief against a defendant who is immune from suit. A dismissal
for frivolousness or maliciousness may occur at any time, before or after service of process and
before or after the defendant’s answer. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).
When reviewing a plaintiff’s complaint, the court must construe plaintiff’s allegations as
liberally as possible. Haines v. Kerner, 404 U.S. 519 (1972). However, the petitioner’s pro se status
does not offer him “an impenetrable shield, for one acting pro se has no license to harass others, clog
the judicial machinery with meritless litigation and abuse already overloaded court dockets.”
Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986).
B.

Sovereign Immunity

The United States is immune from suit unless it has specifically waived immunity.
Jeanmarie v. United States, 242 F.3d 600, 602 (5th Cir. 2001). The FTCA waives the sovereign
immunity of the United States for “claims arising out of torts committed by federal employees.” Ali
v. Fed. Bureau of Prisons, 552 U.S. 214, 217-18 (2008). However, this waiver of immunity does
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.” 28 U.S.C. § 2680(c). Accordingly, Plaintiff’s claims
regarding the loss of his property should be dismissed for lack of subject-matter jurisdiction because
the claims are barred by sovereign immunity. See § 2680(b), (c); See Ali, 552 U.S. at 218-28; Chapa
v. U.S. Dep’t of Justice, 339 F.3d 388, 390 (5th Cir. 2003).
RECOMMENDATION
It is therefore recommended that Plaintiff’s complaint be dismissed without prejudice for
want of jurisdiction pursuant to 28 U.S.C. § 1915(e).
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OBJECTIONS
Within 14 days after receipt of the magistrate judge’s report, any party may serve and file
written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636
(b)(1)(C). Failure to file written objections to the proposed findings and recommendations contained
within this report within 14 days after service shall bar an aggrieved party from de novo review by
the district court of the proposed findings and recommendations and from appellate review of factual
findings accepted or adopted by the district court except on grounds of plain error or manifest
injustice. Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc); Thomas
v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-277 (5th Cir. 1988).
SIGNED this 5th day of April, 2018.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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