Manley v. United States Of America

Filing 26

MEMORANDUM OPINION. Signed by District Judge Anthony J Trenga on 09/29/2017. (dvanm, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

Stewart Manley,

)

Plaintiff,

)
)
)
)
)
)

V.
United States of America,
Defendant.

l:16cv363(AJT/IDD)

MEMORANDUM OPINION

StewartManley, a federal inmateproceeding pro
Federal Tort Claims Act, 28 U.S.C. §§1346,2671

has filed a civil action pursuantto the

sea., seeking damages for property that was

lost or stolen when he was transferred from FCI Phoenix to FCI Petersburg. By Order dated July

7,2016, the complaintwas deemed filed and the Clerk was directed to "send by certifiedmail,
pursuant to Fed. R. Civ. P. 4(i), a copy of [that] Order and the complaint with exhibits (Dkt. No. 1)
to the United States Attorney for the Eastem District of Virginia." Dkt. No. 11. Now before the
Court are plaintiffs Motion for Default Judgment, Dkt. No. 14, which the United States opposes,
Dkt. No. 19, and the United States' Motion to Dismiss, which is accompanied by a supporting

memorandumand the notice required by Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and
Local Rule 7(K), Dkt. Nos. 16-17, and is objected to by plaintiff, Dkt. No. 23. After
consideration of these submissions, the United States' Motion to Dismiss will be granted,

plaintiffs Motion for DefaultJudgment will be denied, andjudgmentwill be enteredin favor of
the United States.

I. Factual and Procedural History

On or about May 16,2014, while confined in the FCI Phoenix ("PHX"), plaintiff was

relocated from the medium unit to the special housing unit ("SHU") and an unknown PHX officer

was taskedwith "packing-out" plaintiff s cell in the medium unit. Compl. HH 7-8. According to
plaintiff, he was never provided with "an inventory of his personal or legalitems, afterthay [sic]
were packed-out." Id.19. On or about July 11,2014, plaintiffwas transferred out of PHX to

FCI Petersburg ("PEM").' Id H10- On approximately August 4, 2014, plaintiffreceived a
delivery at PEM that included "one (1) box of legal materials," but he was missing some of the
other items "packed-out" during his intra-facility transfer at PHX. Id. 11.

Plaintiff states that on or about August 24,2014, after he had not received any further

shipments firom PHX, he contacted a counselor at PEM who agreed to contact a property officer in
the Receiving and Discharge Department of PHX to inquire into the whereabouts of plaintiff s
missing property. Id. H12; Dkt. No. 1, Ex. 5. According to plaintiff, the PEM counselor

informed plaintiffthat a PHX employee stated that "approximately twenty (20) boxes of personal
and legal books" belonging to plaintiffhad been left at PHX, and thoseboxeswould be sent to

plaintiff"at a costnot to exceed $300.00." Compl. ^12. On or about September 4,2014,

plaintiff states thathe contacted a unit manager at PEM to discuss why he had notyetreceived his
property firom PHX, andthe PEM unit manager sentan email of similar effect to an employee at
PHXon plaintiffs behalf. Id.^ 15. According to plaintiff, the unitmanager received a response

from PHX on approximately September 8,2014, andadvised plaintiff thathis property would be
sent to PEM "for an additional $188.32." Id H16. Plaintiff states that a counselor then

accompanied himto thecommissary to purchase theadditional postage, which plaintiffgave to the
counselor to send to PHX. Id

17. On or about October 3, 2014, plaintiff received two (2)

additional boxes containing legal papers fi-om PHX. Id H20.

' Due to stops at federal correctional institutions in Oklahoma City and Atlanta, plaintiff did not
reach his final destination until several days later, on or about July 29,2014. Compl. H10.

On November 4, 2015, plaintiff filed a "tort claim for $4,794.34; for lost/stolem [sic]
personal and legal property" with the Federal Bureau of Prisons. Id. 21. On November 19,
2015, plaintiff received a response denying his claim (No. TRT-WXR-2016-00850). Dkt. No. 1,
Ex. 36. Plaintiff filed a motion for reconsideration on November 30, 2015, which was denied on

December 8, 2015. Dkt. No. 1, Ex. 38. On February 29,2016, plaintiff filed the instant

complaint pursuant to the Federal Tort Claims Act 28 U.S.C. §§ 1346(b), 2671 et seq.—^but
vydthout reference to the substantive law of Virginia under which he believed the United States to

be liable—seeking "no less than $4,794.34," plus interest for his lost/stolen property. Compl. In

the complaint, plaintiff asserts that the unknown officers at PHX "were NOT engaged, in any way
... in a law enforcement activity" when they lost/stole his property. Id. H5.

By Order dated July 7,2016, the complaint was deemed filed, the clerk was "directed to

send by certified mail, pursuant to Fed. R. Civ. P. 4(i), a copy of [the] Order and the complaintwith
exhibits (Dkt. No. 1) to the United States Attorney for the Eastern District of Virginia," and the
United States was "DIRECTED to file an answer or other responsive pleading to the complaint
within sixty (60) days of the date of service, pursuant to Fed. R. Civ. P. 12(a)(3)(A)." Dkt. No.
11. According to the United States Attorney's Office, the United States "received a copy of [the]

July 2016 order from the clerk's office, [but] it has no knowledge of having received - through
certified mail or otherwise - a copy ofthe complaint (or the exhibits to the same)." Dkt. No. 17 at
4. The Assistant United States Attorney assigned to this case states that after a significant of time

passed without service of the complaint, he contacted the Staff Attorney's Office for the United
States District Court for the Eastern District of Virginia, Alexandria Division, to identify the

apparent service issue in an "attemptedexercise of good-faith," but he does not indicate whether
he was able to pinpoint the source of the issue. Id at 4.
3

OnAugust 8,2016,plaintiff wrote the Clerk to inquire about obtaining "proofof service"
on the United States. Dkt.No. 12. On August 17,2016,the StaffAttorney's Officeresponded to

plaintiffsmissive, advising him that the "Order of July 7 constituted service of your complaint
upon the United States, and directed theUnited States to file a response to the complaint within
sixty (60) days," but that the response wasnot yet due. Dkt. No. 13. On October 31, 2016,

plaintiff moved for a default judgment against the United States pursuant to Federal Rule of Civil
Procedure 55(a) on the grounds that it had failed to respond to the complaint "some fourty-two

(42) [sic] days past the deadline set by the court." Dkt. No. 14. OnNovember 29,2016, the
United States filed a Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(1), for

lack ofjurisdiction with accompanying memorandum in support andan opposition to plaintiffs
motion for default judgment. Dkt. Nos. 16-17,19.
11. Standard of Review

Pursuantto Rule 12(b)(1) ofthe Federal Rules of Civil Procedure, a party may challengea
court's subject matterjurisdiction in an action as an affirmative defense. A party may present a

Rule 12(b)(1) motionin two critically different ways: first, it maycontend that a complaint fails to
allege facts upon which subjectmatterjurisdiction can be based; and second, it may contend that
the jurisdictionalallegations of the complaint are not true. Adams v. Bain. 697 F.2d 1213,1219

(4th Cir. 1982). When, as here, subject matterjurisdiction is challenged on the basis that the
complaint fails to allege facts upon whichsubject matter jurisdiction can exist, "all the facts
alleged in the complaint are assumed true and the plaintiff, in effect, is afforded the same

procedural protection as he would receive under a Rule 12(b)(6) consideration."^ Id Once
^A district court, when considering a 12(b)(6) motion to dismiss, generally grants plaintiff the
following procedural protections: a plaintiffs well-pleaded allegations aretaken as true, andthe

subject matterjurisdiction has beenchallenged, plaintiff, as the partyasserting jurisdiction, has the
burden of proving that subjectmatterjurisdiction doesin fact exist. Pinev Run Preservation
Ass'n V. Ctv. Comm'rs of Carroll Ctv.. 523 F.3d 453,459 (4th Cir. 2008). Also pertinent here,

pursuant to Federal Rule of CivilProcedure 55(d), no defauhjudgmentmay be entered against the
United States unless a "claimant establishesa claim or right to relief by evidence that satisfies the
court."

HI. Analysis

Plaintiff has moved for a default judgment, pursuant to Federal Rule of Civil Procedure

55,^ onthe ground that the United States has failed torespond to his complaint within sixty days,
as directedin this Court's July 7,2016 Order. Dkt. No. 14. Plaintiffcontends that the United

States has yet to comply with this Court's July Orderbecause its Rule 12(b)(1) motion "is NOT a

'responsive pleadmg'" withinthe meaning of Fed. R. Civ. P. 12(a)(3)(A). In plaintiffs view, the
United States' failure to file a responsivepleading necessitates the entry of a default judgment on
his behalf.

Dkt. No. 14.

The United States contends that it was never "properly served with a summons and

complaint as required both by the Federal Rules of Civil Procedure and this Court's July 2016

complaint is viewed in the lightmost favorable to the plaintiffas the nonmoving party. Mvlan
Labs.. Inc. v. Matkari. 7 F.3d 1130,1134 (4th Cir. 1993). Nevertheless, a court is not required to

accept blindly all of the allegations in a complaint; thepresumption of truthapplies only to factual
allegations, and a court may identify certainpleadings that, "because they are no more than
conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal. 556 U.S. 662, 679
(2009).

^ The relevant portion of Federal Rule of Civil Procedure 55 provides:
(a) Entering a Default. When a partyagainst whom a judgment for affirmative
reliefis soughthas failed to pleador otherwise defend, andthat failure is shownby
affidavit or otherwise, the clerk must enter the party's default.

order." Dkt. No. 17 at 2. Therefore, it asserts, the sixty day period during which it must respond
"has not yet begun, much less expired." Dkt. No. 17 at 2. Ahematively, the United States

argues,pursuantto Rule 55(d),that plaintiffis not entitled to a defaultjudgment becausethe court
lacks subjectmatterjurisdictionover his claim,and this forecloses his abilityto "demonstrate that
he is otherwise entitled to relief on the merits." Dkt. No. 17. More specifically, the United
States contends that 28 U.S.C. § 2680(c) "precludes jurisdiction over a FTCA claim based upon

the loss of an inmate's property by BOP officials during a transfer of that inmate between BOP
facilities," and therefore, plaintiff's claim must be dismissed. Dkt. No. 17 at 6.

In response, plaintiffappears to contendthat the United Stateswas actually servedwith the
complaint, citing a response he received from the Staff Attorney's Office stating that the "order of
July 7 [2016] constituted service of your complaint upon the United States and directed the United

Statesto file a response to the complaint withinsixty (60) days," but nonetheless failed to file an
answer by the September 6,2016 deadline. Dkt. No. 23. In addition, plaintiffargues that the
United States' 12(b)(1) motion "ignores the statutory empowderment [sic] enacted by congress in
28 U.S.C. § 1346(a)(6) and 28 U.S.C. § 2671 et seq., granting the power to adjudicate and hear
clains [sic] arising under the FTCA." Dkt. No. 23

1.

Because the dispositive issue in both plaintiffs Motion for Default Judgment and the
United States' Motion to Dismiss concerns subject matter jurisdiction, and more specifically,
whether the United States' sovereign immunity has been waived to the extent that this Court has

been conferredjurisdiction over this matter, the discussion of subject matterjurisdiction has been
consolidated into one section. For the reasons which follow, because this Court lacks subject

matterjurisdictionover plaintiffs claim,his Motion for Default Judgment, Dkt. No. 14, will be
denied, and the United States' Motion to Dismiss, Dkt. No. 16, will be granted.
6

It is well established that the United States is immune from suit except to the extent that it

has consented to be sued by statute. See, e.g.. United States v. Palm. 494 U.S. 596, 608 (1990).

Absent a statutory waiver, "sovereign immunity shields the Federal Government and its agencies
from suit." FDIC v. Mever. 510 U.S. 471,475 (1994). The FTCA is one such limited statutory

waiver of sovereign immunity, and it subjects the government and its agencies to liability for
losses caused by the negligent or wrongfulacts of governmentemployees acting within the scope

oftheir employment. 28 U.S.C. § 1346."* The FTCA thus permits the United States to be held
liable—^to the same extent as a privateparty—under the law of the place where a tortious act has
occurredby conferring jurisdictionto the districtcourtsfor Government violations of state law, or
breaches ofduty under analogousfederal law. Goldstar(Panama) S.A. v. United States. 967 F.2d

965,969 (4th Cir. 1992). Significantly, courtswill construe the scopeofthe FTCA,and any other
waiver ofthe Government's sovereign immunity, "strictly" in favor ofthe Government. See, e.g..

Lane v. Pena. 518 U.S. 187,192 (1996). In other words,when a district court is confrontedwith a

purported waiverof the Government's sovereign immunity, it will construe any ambiguities in
favor ofimmunity. United States v. Williams. 514 U.S. 527 (1995). Therefore,any waiver must

4 The FTCA provides, in relevant part:

Subject to the provisions of chapter 171 of this title, the district courts,... shall
have exclusive jurisdiction of civil actions on claims against the United States, for
money damages, accruing on and after January 1, 1945, for injury or loss of
property, or personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the scope of his
office or employment, under circumstances where the United States, if a private
person, would be liable to the claimantin accordance with the law of the place
where the act or omission occurred.

28 U.S.C. § 1346(b)(1).

be unequivocally expressed by Congress inthe text ofa statute. United States v. Nordic Village,
Inc., 503 U.S. 30, 33-34, 37 (1992).

Although plaintiffcorrectly asserts that hisright to file certain claims against the
Government is borne out of the limited waiverof sovereign immunity "enacted by congress in 28

U.S.C. § 1346(a)(6) and 28 U.S.C. § 2671 et seq.," Dkt. No. 23 ^ 1,he neglects to account for the

numerous exceptions enacted byCongress, which limit the jurisdiction of district courts over such
claims. One such exception states:

Theprovisions of this chapter and section 1346(b) of thistitle shall not apply to *

*

*

*

(c) Any claimarising in respect of... the detention of any goods, merchandise, or
otherproperty by any officerof customs or excise or any other law enforcement
officer,

28 U.S.C. § 2680(c). Significantly, § 2680(c) has beeninterpreted to preclude jurisdiction over
FTCA claims based on the loss of an irmiate's property by prison officers during the inmate's

transfer to another facility. Ali v. Federal Bureauof Prisons. 552 U.S. 214,220-21,227-28

(2008). More specifically, the Supreme Court has interpreted "any,'' which modifies the phrase
"other law enforcement officer," to mean law enforcement officers of all kinds; and it has

concluded that Congress did not explicitly intend for Governmental immunity involving property
claims to turn on "the type of law being enforced." Id Pursuant to this interpretation, "BOP

officers" who allegedly lose a prisoner's property during an inter-facility transfer are considered
"law enforcement officers" withinthe meaning of § 2680. Id Becauseplaintiff allegesthat his

personal property was lostor stolen following his July 11,2014, transfer from PHX to PEM, his
claimis virtually identical to the plaintiffs claim in Ali. In this context, plaintiffs attempt to skirt

§ 2680(c) by alleging thatthe officers responsible forthe loss of hisproperty "were NOTengaged,
in any way ... in a law enforcementactivity," is unavailing.

Accordingly, plaintiffhas failed to demonstrate that, underthese circumstances, an

unequivocal waiver of sovereign immunity exists. Welch v. United States. 409 F.3d 646, 651

(4th Cir. 2005). Because sovereign immunity has not been waived, this Court lacks jurisdiction
over this action, and the United States' Motion to Dismiss the complaint, Dkt. No. 16, must be

granted. In addition, because nojurisdiction existsto entertain plaintiffs claim, he cannot
establish "a claim or right to relief by evidence that satisfies the court," pursuant to Rule 55(d).
Thus, whetheror not the United Stateswas properlyservedon July 7,2016, plaintiffwouldnot be
entitled to a default judgment and his motion for such relief must be denied.
V. Conclusion

For the foregoing reasons, defendant's Motionto Dismiss will be grantedand the

complaint will be dismissed withprejudice. Plaintiffs Motion for Default Judgment will be
denied. An appropriate Order and Judgment shall issue.

Entered this ^

day of.

2017.

Alexandria, Virginia
Anthony J.Trei^
United States

V

V -^59311

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