Loney v. United States of America et al
Filing
63
MEMORANDUM OPINION. See Opinion for details. Signed by District Judge Robert E. Payne on 02/18/2015. Copy sent to Pro Se.(ccol, )
P
IN THE UNITED
STATES DISTRICT
II
b
COURT
CLERK, U.S. DiSTRiCT COURT
RICHMOND. VA
KIRK LEE LONEY,
Plaintiff,
V.
Civil Action No.
UNITED STATES OF AMERICA, ^
3:11CV845
al.,
Defendants.
MEMORANDUM OPINION
Kirk
Lee
Correctional
Loney,
Center
a
former
in
federal
Petersburg
inmate
("FCC")
at
the
filed
Federal
this
action
under Bivens^ and the Federal Tort Claim Act ("FCTA"), 28 U.S.C.
§§
1346,
2671,
Particularized
Complaint
grievances
from 2008
on
until
No.
is
proceeding
28).
a
The
running
officials
his
Loney's
Particularized
list
during
on
of
Loney's
incarceration
By Memorandum Opinion and Order entered
2014,
Complaint
the
failed
joinder of
Therefore,
claims
(ECF
prison
26,
matter
contains
2013.
requiring
Loney's
The
Complaint
against
November
59.)
seq.
essentially
Particularized
rules
et
the
Court
except
for
Court
to
parties
dismissed
his
concluded
conform
and
FTCA
with
claims.
without
claim
the
that
the
pertinent
(ECF Nos.
prejudice
against
the
all
403 U.S.
388
(1971).
58,
of
United
^ Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics,
E
FEB I82015 ij
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
IL
States.
The Court ordered further briefing by the United States
with respect to Loney's FTCA claims.
For the reasons
action
for
reflects
the
lack of
that,
administrative
set forth below,
the Court will dismiss the
jurisdiction.
for
Loney's
claim
FTCA
Loney
filed
Specifically,
claim,
with
the
the
the
only
record
pertinent
Government
sought
damages for misconduct with respect to Loney's mail.
The United
States,
for
claim
however,
arising
has
out
not
of
waived
the
sovereign
loss,
miscarriage,
transmission of letters or postal matter."
I.
A.
PERTINENT FACTS
immunity
or
"[a]ny
negligent
28 U.S.C. § 2680(b)
REGARDING LONEY'S
FTCA CLAIM
The Government's Argioment
Loney contends that he is entitled to bring an action under
the
FTCA
Compl.
for
the
15.)^
"intentional
Loney
government employees,
deliver
argues
Loney's
his
mail.
that
the
bases
invasion
this
inter alia,
(ECF No.
Court
28-2,
lacks
FTCA claim because,
claim
of
on
privacy."
the
opened his mail
at
subject
inter alia,
(Part.
grounds
that
and failed to
2-5.)
The
United
States
matter
jurisdiction
over
Loney failed to exhaust
^ The Court corrects the capitalization in the quotations
from
Loney's
submissions.
Given
the
organization
to
Loney's
Particularized
attachments
thereto,
attachment numbering
system.
the
Court
assigned by
lack
of
coherent
Complaint
and
the
employs
the
pagination
and
the Court's CM/ECF docketing
his
administrative
remedies
initial Motion to Dismiss,
only
as
required
single
administrative
Prisons
("BOP")
during
Supp.
tort
his
tort
claim
term of
Mot.
Dismiss
4,
Loney
claim
filed
with
any
(citing Ex.
Attach.
1
of
the
The
In
ECF
No,
the
allegations
Government
47.)
BOP
in
then
the
its
Bureau
incarceration with
The
the
the
of
BOP.
administrative
related
"to
a
personal
2008" and failed to
present
(Declaration of Cornelia Coll
6).)
FTCA.
with
injury which allegedly occurred on July 23,
implicate
the
the Government noted that Loney filed
a
(Mem.
by
argued
action.
(Id.
("Coll Decl.")
that
because
f
9,
Loney's
Particularized Complaint failed to raise any tort claim based on
a
July 23,
2008 injury,
requirement that,
he had failed to comply with the FTCA's
before bringing an FTCA claim,
administrative claim with the
appropriate
he must file an
federal
agency.
(Id.
at 4.)
B.
Loney's Pertinent Administrative Claim
By
2014,
Memorandum
the
reflecting
Court
that
administrative
("October
Dismiss Ex.
Loney
(Id.)
Opinion
31,
3,
listed
noted
on
or
claim
2010
at
the
2,
and
that
about
with
Order
entered
Loney
had
October
the
United
Administrative
ECF No.
date
of
54.)
the
31,
In the form Loney complained:
States
Claim").
accident
November
submitted
2010,
On the
on
Loney
evidence
filed
Postal
(See
26,
an
Service
Resp.
Mot.
administrative claim,
as
"August
26,
2010."
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
conunitting 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
(Id.
of
had
Ex.
3,
[sic]
address to him.
at 2.)
In his attachments,
disjointed complaints
mishandled
complained
his
that
See attachment.
mail.
he
(Id.
how the
(Id.
"almost
postal misconduct.
^ Loney also
about
at
lost
at 3.)''
submits
the
Loney then made a series
staff at
3-5.)
[his]
In
civil
particular
suit"
Additionally,
United
FCC Petersburg
States
Loney
because
of
Loney complains
Postal
Service's
denial of his administrative tort claim (Resp. Mot. Dismiss
6, at 1), and the United States Postal Service's denial of
request for reconsideration (id. Ex. 5, at 1).
^ Loney's identifies the civil suit as "#3:08CV820."
Ex.
his
(Resp.
Mot. Dismiss Ex. 3, at 3.)
The Court's docket for the above
referenced action, Loney v. Wilder, 3:08CV820 (E.D. Va.) reveals
the
following:
Service
returned
on
to
July
the
19,
Court
2010,
an
the
order
United
the
States
Court
had
Postal
sent
to
Loney at "P.O. Box 90043,"
(ECF No. 42, at 1);
the Postal
Service marked the envelope "RETURN TO SENDER," "NOT DELIVERABLE
AS ADDRESSED," and "UNABLE TO FORWARD,"
(j^ at 5); thereafter,
by Memorandum Opinion and Order, the Court dismissed that action
without prejudice because i t appeared Loney had moved without
notifying the Court, (ECF Nos. 43, 44); the Memorandum Opinion
and Order also were returned to the Court as undeliverable, (ECF
No. 45); on September 13, 2010, Loney requested that the Court
reinstate the action because, inter alia, "Petitioner was never
transferred
simply
or
changed
relocated . . . .
P.O.
Box
numbers
F.C.C.
from
Petersburg's
90043
to
1000,"
staff
(ECF
No. 4 9, at 1); by Memorandum Opinion and Order entered October
26, 2010, the Court granted Loney's request and reinstated the
action, (ECF Nos. 53, 54); and by Memorandum Opinion and Order
entered February 24, 2012, the Court dismissed the action for
reasons unrelated to any misdelivery or miscommunication about
Loney's mailing address. (ECF Nos. 146-47.)
that some of his mail "was returned to
[him]
without a
to why" and opened outside of his presence.
also
states
that
mail
"Mail
Clerk
Croomes
(Id.
tried
Inmate Luke Allen witnessed it."
In in its Supplemental Memorandum of Law,
argues
mail
Loney's
were
FTCA
claims
foreclosed
ECF No.
In
asserted
pertaining
"because
sovereign immunity for
3-4,
to
[such]
the
to
United
claims .
at 5.)
Loney
overcharge
my
(Id.)^
the United States
the
handling
States
..."
reason as
has
not
of
his
waived
(Supp'l Mem.
Law
60.)
his
original
complaint
in
the
present
action
Loney
that:
On and about July 19*^^ and August 25*^^, 2010 F.C.C.
Petersburg's
Staff
and
Petersburg,
Virginia's
U.S.P.S. . . . breached
their
duty . . .
by
not
allowing the courts to utilize P.O. Box
90043 as a
mailable
address
to him.
Plaintiff's Civil Complaint No.
3:08CV820 was
dismissed as a result of this misconduct on August 19,
2010.
(Compl. 2, ECF No. 1
(as paginated by CM/ECF).)
^ The allegations in the Particularized Complaint reflect
that Mail Clerk Croomes told Loney that i t would cost $10.52 to
mail a certified letter.
(Part. Compl. SI 6.)
Loney insisted
that such amount was too much and refused to pay.
(Id. )
The
next day, Loney returned, and Mail Clerk Copeland only charged
Loney $7.68 to send the same letter, which Loney paid.
(Id.)
As Loney suffered no compensable injury, the Court dismisses as
frivolous any claim by Loney suggesting he is entitled to
compensation for the attempted overcharging.
See 28 U.S.C.
§
1915(e) (2).
II.
ANALYSIS
The United States is immune from suit except to the extent
i t consents by statute to be sued.
U.S.
596,
392,
608
399
(citing United States
(1976)).
The
immunity,
sovereign
by
government.
Cir.
(1990)
Williams
1995).
United States v.
FTCA
acts
as
permitting
v.
United
Under the FTCA,
v.
a
States,
Testan,
limited
tort
suits
50
Palm,
F.3d
424
494
U.S.
waiver
of
against
299,
305
the
(4th
the government consents to "actions
for damages against the United States for injuries caused by the
tortious
within
the
private
U.S.C.
conduct
of
scope
of
§
employment
liable
under
§
the
transmission
2680(b)
or
to
state
employees
the
extent
law."
for
U.S.
Serv.,
United States v.
plaintiff
immunity
must
of
out
must
securing
223
acting
that
a
(citing
Id.
file
F.3d
compliance with its terms."
the
or
28
"the
278
U.S.
or
Id.
her
loss,
to,
28
exception").
]"
the
Kokotis
waiver.
117-18
FTCA
matter."
observe[
Cir.
as
miscarriage,
postal
(4th
Ill,
remains
postal
government's
275,
444
his
bar
"scrupulously
the
Kubrick,
of
letters
(hereinafter,
courts
requirements
Postal
sovereign
"[a]ny claim arising
negligent
Furthermore,
a
agents
1346(b)).
inter alia,
U.S.C.
States
their
party would be
Nevertheless,
or
United
v.
2000)
(citing
(1979)).
Hence,
action
(citation omitted).
"in
careful
Under the FTCA,
over a
agency
and
agency
in
claim
writing .
the
785
F.2d
United States,
540
to suit.
shall
.
"unless the claimant
.
28
been
U.S.C.
of
finally
§
filing
denied
2675(a).
an
"It
by
well-
administrative
claim
(citing
123
(4th
F.2d 676,
that
the
679
he
order
Cir.
1986)
(4th Cir.
has
to
the
United
Kielwien
1976)).
properly
secure
the
is
121,
claim in
to
have
Federal
Henderson v.
See Kokotis,
According
jurisdiction
and may not be waived."
demonstrate
administrative
the United States
requirement
jurisdictional
States,
court will not have
presented the claim to the appropriate
his
settled that
must
federal
tort suit against
shall have first
is
a
Thus,
Loney
presented
Government's
v.
an
consent
223 F.3d at 278.
pertinent
regulation
for
FTCA
claims,
an
administrative claim is deemed presented,
when
duly
a Federal agency receives from a claimant,
authorized agent or legal
representative,
executed
Standard
Form
95
or
other
his
an
written
notification of an 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 of the claimant as agent, executor,
administrator,
parent,
guardian,
or
other
representative.
28
C.F.R.
must
§
14.2(a).
provide
conduct
an
the
In
federal
investigation,
the
administrative
agency with
which
claim,
sufficient
includes
"the
a
plaintiff
information
identity
of
to
the
claimants
Bank v.
and
the
Farmers
nature
of
the
Farmers
866
F.2d 276,
277
an
Home Admin.,
claims."
State
Savs.
(8th Cir.
1989)
inmate's
use
(internal citations omitted).
The
Court
notes
that
Administrative Remedy Program,
fails
to
satisfy
administrative
States,
No.
Va. Aug.
with
the
requirement
the
to
the
within
consequentially,
late,
Levasseur v.
See
seq.,
presenting
Ellis
v.
at *15 n.4
an
United
(S.D.
present
administrative
claim Loney
action
October
W.
the
postal
the
exception.
because mail either fails
Postal Serv.,
"[T]he
31,
2010
postal-matter
^injuries arising,
in damaged condition,
U.S.
is
filed
Loney's complaints in that Administrative
exception preserves immunity for
arrives
FTCA.
BOP's
542.10 ^
§
for
2013 WL 4679933,
only pertinent
Administrative Claim.
fall
C.F.R.
the
2013)
respect
Claim
under
5: ll-cv-00096,
30,
Here,
claim
the
see 28
of
or at
directly or
to arrive at all
or
the wrong address.'"
543 F.3d 23,
24
(1st Cir.
2008)
® Additionally, the following statute of limitations governs
claims
under
the
FTCA:
A tort claim against the United States shall be
forever barred unless i t is presented in writing to
the appropriate Federal agency within two years after
such
claim
accrues
or
unless
action
six months after the date of mailing,
is
begun
registered mail, of notice of final denial
claim by the agency to which it was presented.
28 U.S.C.
§
2401(b).
within
by certified or
of
the
(quoting Dolan v. U.S. Postal Serv., 546 U.S. 481, 489 (2006)).
Loney's complaints that the Government improperly returned mail
sent to a post office box and improperly opened his mail falls
within the exception.
App'x
158,
159
See McCullouqh v. United States, 110 F.
{2d Cir.
2004)
(concluding
FTCA
claim
for
invasion of privacy for opening of mail was barred by the postal
exception).
Accordingly,
the
Court
lacks
jurisdiction
to
entertain an FTCA claim based on these allegations.
The
granted.
Government's
Motion
to
Dismiss
(ECF
No.
46)
will
The action will be dismissed for lack of jurisdiction.
The Clerk
is
directed
to
send a
copy
of
this Memorandum
Opinion to Loney and counsel for the United States.
I t is so Ordered.
/s/
Robert E. Payne
Senior United States District Judge
Richmond,
be
Virginia
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