Loney v. United States of America et al

Filing 58

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 11/25/2014. Copy mailed to Plaintiff. (ccol, ) (Main Document 58 replaced on 11/26/2014) (ccol, ).

NOV 2 6 2014

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

TLERK U.S. DiSiiiiC'i COU^1
'richi.^qud. VA

Richmond Division

KIRK LEE LONEY,

Plaintiff,
Civil Action No.

V.

UNITED STATES OF AMERICA, ^

3:11CV845

al.,

Defendants.
MEMORANDUM OPINION

Kirk

Lee

Correctional

Loney,

a

Center

former

in

federal

Petersburg

inmate

("FCC")

at

filed

the

this

Federal

action

under Bivens^ and the Federal Tort Claim Act ("FCTA"), 28 U.S.C,
§§

1346,

2671,

evaluation

^

seq.

pursuant

The

to

matter

is

before

Rule

of

Civil

Federal

the

Court

Procedure

for
Rule

8(a), 20(a),^ a Motion to Dismiss filed by the United States, and
a host of other motions filed by the parties.
set forth below,
except

the

the Court will,

United

States

as

inter alia,
improperly

For the reasons

dismiss all parties
joined,

and

direct

^ Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics,

403 U.S.

388

(1971).

^ (2) Defendants. Persons . . . may be joined in one
action as defendants

(A) any
jointly,
respect

to

or

occurrence,
occurrences;

(B)

any

5^

R.

Civ.

P.

arising

or
and

question

defendants

Fed.

if:

right to relief is
severally,
or
in

will

20(a).

out

of

series

of

arise

law
in

asserted against
the
alternative

the

the
of

or

same

transaction,

transactions

fact

action.

them
with

common

to

or

all

further briefing with respect to the Motion to Dismiss for lack
of subject matter jurisdiction.

I.

The

Federal

plaintiff's

Rules

ability

pleading.

See

Civil

Procedure

to

join

multiple

R.

Civ.

P.

Fed.

occurrence test'

of

JOINDER

of

[Rule 20]

.

limits

defendants

20(a).

.

place

.

"The

in

a

on

a

single

'transaction or

^permit[s]

all

reasonably

related claims for relief by or against different parties to be
tried in a

single proceeding.

is unnecessary.'"

Cir. 1983)
1333

(8th

BL Ltd.,

710

F.2d 1027,

(quoting Mosley v. Gen. Motors Corp.,
Cir.

plaintiff

Saval v.

Absolute identity of all events

to

1974)).

add

"But,

claims

Rule

20

'against

does

(4th

497 F,2d 1330,

not

different

1031

authorize

parties

a

[that]

present[ ] entirely different factual and legal issues.'"

Sykes

V.

2008)

Bayer Pharm. Corp.,

(alterations

in

No. 7:03cv00395,

2007)).
the

"And,

addition

objectives

548 F.

original)
2007

WL

of

the

party

[promoting

resolution of disputes],

or

delay.'"

Id.

Inc., 485 F.3d 206,

(quoting

3069660,

a court may
of

Supp. 2d 208,

218

(E.D. Va.

Lovelace

at

*1

(W.D.

v.

Va.

Lee,

Oct.

21,

'deny joinder if it determines that
under

Rule

20

convenience

but will result

(quoting

Aleman

218 n.5

(4th Cir.

v.

will

and

not

foster

expediting

in prejudice,

Chuqach

2007)).

Support

the

the

expense,

Servs.,

In

addressing

joinder,

the

Court

is

mindful

that

"the

impulse is toward entertaining the broadest possible scope of
action

consistent

with

fairness

to

the

parties;

joinder

claims, parties and remedies is strongly encouraged."
Mine Workers of Am. v. Gibbs,

of

United

383 U.S. 715, 724 (1966).

This

impulse, however, does not provide a plaintiff free license to

join multiple defendants into a single lawsuit where the claims
against the defendants are unrelated.
Smith,
130

507 F.3d 605,

F.3d

1348,

See,

e.g.,

George—v_^

607 (7th Cir. 2007); Couqhlin v.

1350

(9th

Cir.

1997).

Thus,

"[a]

Rogers,
buckshot

complaint that would be rejected if filed by a free person-say,

a suit complaining that A defrauded the plaintiff, B defamed

him, C punched him, D failed to pay a debt, and E infringed his

copyright, all in different transactions-should be rejected if
filed by a prisoner."
"The
Reform Act

Court's

George, 507 F.3d at 607.

obligations

("PLRA")]

include

under

the

review for

[Prison

Litigation

compliance with Rule

20(a)Coles v. McNeely, No. 3:11CV130, 2011 WL 3703117, at *3

(E.D. Va. Aug 23,
"Thus,

2011)

(citing George,

507

F.3d at

multiple claims against a single party are fine,

607).
but

Claim A against Defendant 1 should not be joined with unrelated
Claim B against Defendant 2.

Unrelated claims against different

defendants belong in different suits, not only to prevent the
sort of morass that these complaints have produced but also to

ensure

that

(citing

prisoners

28

U.S.C.

No. 7:08cv00276,

pay
§

the

required

1915(g));

filing

fees."

Showalter

2009 WL 1321694, at *4

v.

Id.

Johnson,

(W.D. Va. May 12, 2009)

("To allow [plaintiff] to pay one filing fee yet join disparate
claims

against

dozens

of

parties

flies

in

the

face

off

the

letter and spirit of the PLRA." )

The Court has previously admonished Loney with respect to

the requirements of the civil procedure rules regarding joinder.
See Loney v.

(E.D.

Va.

Wilder,

May 12,

No.

3:08CV820,

2011).

2011

Nevertheless,

WL 1827440,

at

*1-4

Loney fails to comply

with the requirements for proper joinder in his Particularized

Complaint or his Proposed Amended Complaints (ECF Nos. 52-1, 551,

56-1)

II.

A.

IMPROPERLY JOINED CLAIMS

Procedural History

Loney's original complaint failed to provide each defendant
with fair notice of the facts and legal basis upon which his or

her liability rested.

Therefore, by Memorandum Order entered on

September

the

24,

2013,

particularized complaint.
submitted

his

Court

directed

(ECF No.

Particularized

25.)

Complaint

Loney

to

file

Subsequently,
(ECF

No.

Court attempted to serve the parties named therein.

28)

a

Loney

and

the

Thereafter,

the United States moved for an extension of

time to respond on behalf of the individual defendants

(ECF

No. 44) and subsequently moved to dismiss all claims against the
United States for lack of subject matter jurisdiction.

No. 46.)

Loney responded to the Motion to Dismiss (ECF No. 54)

and also moved to file new amended complaints.

55, 56)

(ECF

(ECF Nos. 52,

As explained below, the Particularized Complaint and

the Proposed Amended Complaints fail to comply with the joinder
requirements.

Accordingly, the Court will drop all parties from

the action, except for the first named party, the United States,

and deny Loney's Motions to Amend

(ECF Nos.

52,

55,

56) as

futile.

B.

Summary Of Allegations And Claims

The

Particularized Complaint names

sixteen individuals as defendants.

essentially

contains

a

running

The Particularized Complaint

list

against prison officials during his
until 2013.

For example,

the United States and

of

Loney's

grievances

incarceration from 2008

Loney begins by complaining about a

variety of problems with his incoming and outgoing mail in 2008
until 2010 caused by,

Compl. 1-4.)^

inter alia, Mail Clerk Croomes.

(Part.

Next, Loney contends that on September 1, 2010

^ The Court employs the page numbers assigned to the
Particularized Complaint by the Court's CM/ECF docketing system.
The Court corrects the capitalization and punctuation in the
quotations to Loney's submissions.

"Counselor Cuffee conspired with Unit [Manager] Tabor, and A.W,

Engel and wrote [Loney up for an institutional infraction] for
unsanitary

conditions . . .

(Id.

backtracks and charges that on July 3,

Blankenshift

showed

preferential

at

4.)

Loney

then

2010 "Officer Ms.

treatment

and

K.

retaliated

against plaintiff by denying him access to the law library and
allowing another inmate to enter."

(Id.

at 5.)

Loney then

returns to complaining about his interactions with Mail Clerk
Croomes and Mail Clerk Stewart.

(I^ at 6-7 ("August 11, 2011,

Mail Clerk Croomes harassed me and snarled at me then jumped at
me and refused to mail all my mail.") .)

On page eight,

Loney

launches into complaints about his dental problems caused or
exacerbated by Dentists McDonald and Roache.

(Id. at 8.)

Loney

follows this up by describing an incident where he was assaulted

by Ricky Lee, a fellow inmate.

(I^ at 9-10.)

Loney contends

that Lee was "carrying out the deeds of Cuffee . . .

(I^

at 10.)

Loney insists that all of the defendants were involved in a

conspiracy to deprive him of his constitutional rights and
violated a variety of his constitutional rights.
14.)

Thereafter,

(Id^ at 13-

Loney contends he is entitled to bring an

action under the FTCA for the "intentional invasion of privacy."
(Id.

at 15.)

C.

Dismissal Of Improperly Joined Claims And Parties

It is apparent that Loney has submitted the sort "mishmash
of a complaint" that the rules governing the joinder of parties

aim to prevent.

George v. Smith, 507 F.3d 605, 607 (7th Cir.

2007) .

Although Loney alleges that a conspiracy exists among all
the defendants, Loney has not stated any plausible claim of a

conspiracy to deprive Loney of his civil rights.

Because

Loney's allegation of a conspiracy "amounts to no more than a

legal conclusion, on its face it fails to assert a plausible
claim."

2009)

Francis v. Giacomelli, 588 F.3d 186, 197 (4th Cir.

(citing Ashcroft v. Iqbal, 556 U.S. 662,

679 (2009),

Gooden v. Howard Cnty., Md., 954 F.2d 960, 969-70 (4th Cir.

1992)); see Capoqrosso v. Supreme Court of N.J., 588 F.3d 180,
184-85 (3d Cir. 2009)

(dismissing conclusory allegations of a

conspiracy)(citing Crabtree v. Muchmore, 904 F.2d 1475, 1480-81
(10th Cir. 1990)) .

In order to satisfy his pleading burden with respect to a

conspiracy, Loney "needed to plead facts that would ^reasonably
lead to the inference that [Defendants] positively or tacitly
came to a mutual understanding to try to accomplish a common and

unlawful plan.'"

Ruttenberg v. Jones, 283 F. App'x 121, 132

(4th Cir. 2008) (quoting Hinkle v. City of Clarksburg, 81 F.3d
416, 421 (4th Cir. 1996)).

"[T]he bare, conclusory allegation

that the [DJefendants conspired to violate his constitutional

rights" is insufficient.

^

Accordingly, Loney's broad claims

of an overarching conspiracy, which encompasses all of the named
defendants, will be dismissed without prejudice.

Absent a plausible claim of conspiracy, Loney has failed to
articulate a common question of law and fact for all of the

named defendants.

^

Fed. R. Civ. P. 20(a).

Furthermore, it

is apparent that Loney's various causes of action do not arise
"out

of

the

same

transaction,

transactions or occurrences."

occurrence,

or

series

of

Id.

Accordingly, the Court will begin its analysis with the
first

defendant

named in the

Particularized Complaint,

the

United States, and drop every defendant not properly joined with
that defendant.

See Loney v. Wilder, No. 3:08CV820, 2011 WL

1827440, at *3 (E.D. Va. May 12, 2011)

(employing a similar

procedure); Jackson v. Olsen, No. 3:09cv43, 2010 WL 724023, at
*3 (E.D. Va. Mar. 1, 2010)

(describing remedies available for

misjoinder and failure to comply with Fed. R. Civ. P. 8(a) and
41(b)).

Loney seeks damages against the United States under the

FTCA for the invasion of his privacy.

Loney fails to articulate

how his FTCA claim raises common questions of law and fact with
his

constitutional

claims

against

the

individual defendants.

Moreover,

given the disjointed nature of the Particularized

Complaint

and his

Proposed Amended Complaints,
8

permitting

joinder of Loney's

constitutional

claims

with

his

FTCA claim

will not promote convenience and expedite the resolution of the
matter,

"but

Sykes v.

2008)

will

result

Bayer Pharm.

in

Corp.,

prejudice,
548 F.

expense,

Supp.

2d 208,

(quoting Aleman v» Chuqach Support Servs.,

206, 218 n.5

without

(4th Cir. 2007)).

prejudice

all

of

Loney's

claims

at

light

(explaining

provision,

dismissal

constitutional claims

that,

Rules 8(a)

(E.D.

Va.

Inc., 485 F.3d

of

prejudice

for

his

2010 WL 724023,

Virginia's

of

FTCA

the

tolling

plaintiff's

failed to create problems with respect to

Loney remains free to refile these

but any new complaint must still comply with

and 20(a).

Loney's
56-1)

in

without

the statute of limitations).

dismissed claims,

218

except

See Jackson,

n.7

delay.'"

Accordingly, the Court dismisses

claim against the United States.

*8

or

Proposed Trended Complaints

suffer

from

the

Particularized Complaint.

same

(ECF Nos.

joinder

Accordingly,

it

52-1,

55-1,

problems

as

his

would be

futile

to

permit Loney to proceed on

such complaints and therefore,

his

Motions

52,

See

United

to

Amend

States

v.

(ECF

Nos.

Pittman,

(citations omitted).

209

55,

F.3d

56)

314,

will

317

be

denied.

(4th

Cir.

2000)

III.

The

United

THE MOTION TO DISMISS

States

argues

that

the

Court

lacks

subject

matter jurisdiction over Loney's FTCA claim because Loney failed
to exhaust his administrative remedies as required by the FTCA.

The United States is immune from suit except to the extent it

consents by statute to be sued.

596, 608 (1990)
399

(1976)).

immunity,

by

Williams V.

United States v. Palm, 494 U.S.

(citing United States v. Testan, 424 U.S. 392,
The FTCA acts as a limited waiver of sovereign

permitting

tort

United States,

Under the FTCA,

50

suits

against

F.3d 299,

305

the

government.

(4th Cir.

1995).

the government consents to "actions for damages

against the United States for injuries caused by the tortious
conduct of United States agents or employees acting within the

scope of their employment to the extent that a private party
would

be

1346(b)).

liable

under

state

Nevertheless,

law."

courts must

(citing

28

U.S.C.

"scrupulously observe[

§

]"

the requirements for securing the government's waiver.

Kokotis

V. U.S. Postal Serv., 223 F.3d 275, 278

(4th Cir. 2000)

(citing

United States v.

117-18

Kubrick,

a plaintiff must

file

444 U.S.

his

compliance with its terms."

or

Ill,

her

(1979)).

FTCA action

Hence,

"in careful

Id. (citation omitted).

Under the FTCA, a federal court will not have jurisdiction

over a tort suit against the United States "unless the claimant
shall have first presented the claim to the appropriate Federal
10

agency and his claim shall have been finally denied by the

agency in writing . . .

28 U.S.C. § 2675 (a). "It is well-

settled that the requirement of filing an administrative claim

is jurisdictional and may not be waived."

Henderson v. United

States, 785 F.2d 121, 123

(citing Kielwien v.

(4th Cir. 1986)

United States, 540 F.2d 676, 679 (4th Cir. 1976)).
must

demonstrate

that

he

has

properly

Thus, Loney

presented

an

administrative claim in order to secure the Government's consent
to suit.

See Kokotis,

223 F.3d at 278.

According to the pertinent regulation for FTCA claims, an
administrative claim is deemed presented,

when a Federal agency receives from a claimant,

duly

authorized

agent

executed
Standard
notification of an

or

legal

his

representative,

an

Form
95
or
other
written
incident, accompanied by a claim

for money damages in a sum certain for injury to or
loss of property, personal injury, or death alleged to
have occurred by reason of the incident; and the title

or

legal

capacity

of

the

person

signing,

and

is

accompanied by evidence of his authority to present a
claim on

behalf

administrator,

of

the

claimant

parent,

as

agent,

guardian,

executor,

or

other

representative.

28 C.F.R.

§ 14.2(a).

The Court notes that an inmate's use of

the BOP's Administrative Remedy Program, see 28 C.F.R. § 542.10

^

s^.,

fails to satisfy the requirement for presenting an

administrative

claim

under

the

FTCA.

See

Ellis

v.

United

States, No. 5: ll-cv-00096, 2013 WL 4679933, at *15 n.4 (S.D. W.
Va. Aug.

30, 2013).

11

Here,

the Government notes that Loney filed only a single

administrative

tort

claim with

the

Bureau

of

during his term of incarceration with the BOP.
Dismiss 4.)

Prisons

("BOP")

(Mem. Supp. Mot.

The administrative tort claim Loney filed with the

BOP related "to a personal injury which allegedly occurred on

July 23, 2008."
Coll

("Coll

(citing Ex. 1 (Declaration of Cornelia

Decl.")

f

9,

Attach.

6).)

The

Government

then

argues that because Loney's Particularized Complaint fails to
raise any tort claim based on a July 23,
failed

to

comply

with

the

FTCA's

2008 injury,

requirement

that,

he has
before

bringing a FTCA claim, he must file an administrative claim with
the appropriate federal agency.

(Id. at 4.)

Loney responds that, on or about October 31, 2010, he filed
an administrative claim with the United States

Postal Service,

wherein he complained:

On and about July 19*^*^ and August 25*^^, 2010 F.C.C.
Petersburg's
Staff
and
Petersburg,
Virginia's
U.S.P.S., as a joint tortfeasor breached their duty to

provide prompt, reliable, and efficient service by
committing acts of fraud and conspiracy to deprive
plaintiff of his civil and constitutional rights by
not allowing the courts to utilize P.O. box 90043 as a
mailable [sic] address to him.

(Resp.

Mot.

attachments,

Dismiss

Ex.

3,

at

Loney then makes a

See attachment.

2,

ECF

No.

54.)

his

series of rambling complaints

about how the staff at FCC Petersburg handled his mail.

3-5.)

In

(Id. at

Loney also submits the United States Postal Service's

12

denial of his administrative tort claim
the

United

States

reconsideration

Postal

(id.

Service's

Ex.

5,

at

(id.

denial

1) .

The

Ex.
of

6,

and

request

his

at 1),

for

Government

fails

to

acknowledge these submissions with respect to its assertion that

Loney failed to submit an administrative claim with respect to

any

FTCA

claim

Accordingly,

raised

within

in

fifteen

the
(15)

Particularized
days

of

the

Complaint.

date

of

entry

hereof, the United States shall submit a further response which
addresses the legal significance of the above submissions to the
Postal

Service

with

respect

to

its

assertion

that

the

Court

lacks jurisdiction over Loney's FTCA claim.

IV.

The

respond

Government

to

individual

prejudice
Motion

moved

for

Particularized
As

claims

Extension

Relatedly,

Documents

has

defendants.

all

for

moot.

the

OUTSTANDING MOTIONS

(ECF No.

of

45),

Court

on

has

(ECF

No.

to

44)

of

will

be

to

the

without

defendants,

Compel

wherein he demands

time

behalf

individual

Motion

of

dismissed

the

Time

Loney's

extension

Complaint

the

against

an

denied

Production

the
as

of

that the Government

identify the John Doe defendants and provide addresses for the
unserved defendants,

Loney
No. 50.)

has
Loney

will be dismissed as moot.

moved
fails

for
to

the

appointment

demonstrate

13

that

of

counsel.

the

(ECF

circumstances

warrant

the

appointment

of

counsel

at

United States v. Silvers, No. 96-7386,

Cir.

on

Jan.

28,

1997)

FTCA appeal

this

juncture.

See

1997 WL 33104, at *1

(4th

{denying motion for appointment of counsel

because

the matter

"present[ed]

no

complex or

substantial issues of law").

Loney has requested that the Court seal his latest proposed
amended complaint.
coherent

fails

to

reason

(ECF No.

to

comply

seal

with

56.)

this

the

Loney fails

document.

Local

Rules

to advance any

Moreover,

for

the

his

United

request

States

District Court for the Eastern District of Virginia that require

an accompanying memorandum, a notice identifying the motion as a

sealing motion, and a proposed order.
5(C).

See E.D. Va. Loc. Civ. R.

Accordingly, Loney's request to seal (ECF No. 56) will be

denied.

The

Clerk

is

directed

to

send

a

copy

of

this

Memorandum

Opinion to Loney and counsel for the United States.

/s/

Ml.

Robert E. Payne
Senior United States District Judge

Richmond,

Virginia

14