Burks v. Wilson et al
Filing
16
MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 12/19/2014. Copy mailed to plaintiff on 12/19/2014.(tjoh, )
E^n^i
DEC I 9 2014
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
CLERK, US. DISTRicfcOURT
RICHMOND, VA
STEPHEN BURKS,
Plaintiff,
Civil Action No. 3:14CV532-HEH
v.
'a
ERIC WILSON, et al,
Defendants.
MEMORANDUM OPINION
(Granting Defendant's Motion to Dismiss)
Stephen Burks ("Burks"), a federal inmate confined in the Federal Correctional Complex
inPetersburg, Virginia ("FCC Petersburg"), filed suit1 in the Circuit Court ofPrince George
County, Virginia ("Circuit Court") against Defendants for breach of contract. Defendant
Wilson3 removed that case to this Court. The matter is before the Court on Defendant Wilson's
(1) Motion to Dismiss or, in the Alternative, for (2) Summary Judgment ("Motion to Dismiss,"
ECF No. 2; "Motion for Summary Judgment," ECF No. 3); (3) Burks's Motion for Remand
(ECF No. 10); and (4) Burks's Motion to Amend (ECF No. 13).
I. Procedural History
On June 17,2014, Burks, a federal inmate proceeding pro se, filed suit against
Defendants in the Circuit Court. The Complaint alleges that Defendants breached contracts
1"Bill At Law; Breach of Contract Third Party Breach of Contract." ("Complaint," ECF
No. 1-1, at 1.)
2Burks namesas Defendants: "WARDEN ERIC WILSON, CEO," "FEDERAL
CORRECTIONAL COMPLEX, LOW," and "PETERSBURG, LOW, INC." (Compl. at 1.)
3The United States Attorney's Office represents only Defendant Wilson, as it asserts that the
other "defendants[,] the 'Federal Correctional Complex Low Petersburg' and 'Bureau of Prisons,
Inc.'.... are not legal entities that are capable of being sued." (Mem. Supp. Mot. to Dismiss,
ECFNo.4,atn.l.)
"implied in fact, implied in law, [and] expressed basedon the relationshipof the parties, in the
first instance and as a third party beneficiary herein."4 (Compl. at 1.)
On July 28,2014, Defendant Wilson removed his state court action to this Court ("Notice
of Removal," ECF No. 1). Shortly thereafter, on July 31,2014, Defendant Wilson filed a Motion
to Dismiss (ECF No. 2) and Motion for Summary Judgment (ECF No. 3). Burks filed a brief
opposingthe Defendant's Motion to Dismiss (ECF No. 6), and a "Responsive Brief to
Defendant's Brief Dated 8/20/14" ("Opposition to Defendant's Motion for Summary Judgment,"
ECF No. 9).
On September 16,2014, Burks sought to have the case remanded to the Circuit Court of
Prince George County by filing a "Notice for Remand to State Court" (ECF No. 10), which the
Court construes as a Motion to Remand.5 Defendant Wilson filed a briefin opposition (ECF No.
11), and Burks filed an "Opposition to Defendant's Filing Dated 9/18/14" (ECF No. 12).
On September 26, 2014, Burks filed a Motion to Amend (ECF No. 13). Defendant
Wilson filed a brief opposing the Motion to Amend (ECF No. 14), and Burks filed a reply (ECF
No. 15).
II. Summary of Allegations
Burks alleges that a variety of conditions at the FCC Petersburg are unsuitable. The
unsuitable conditions of the facility, Burks avers, include violations of fire and plumbing codes,
"over capacity of the facilities and buildings," and officers "smoking out of designated areas," in
violation of their contract with the Federal Bureau of Prisons ("BOP"). (Compl. at 6-7.) Burks
contends that these conditions breach three types of contract.
4The Court corrects the capitalization and spelling in quotations from Burks's filings.
5Defendant Wilson concedes that Burks's "Notice" is properly construed as a Motion to
Remand. (Opp'n to Mot. Remand, ECF No. 11, at 1.)
First, Burks asserts that 18 U.S.C. § 40026 and § 40427 constitute a contract between the
BOP and the United States, that he is a third party beneficiary to these "contracts," and his
conditions of confinement constitute a breach of these contracts. (Compl. 4.) Second, Burks
essentially claims that prison conditions constitute a breach of his plea agreement with the
Government. (Id. at 5.) Lastly, Burks charges that the Defendants breached "contracts between
BOP-Low and the State of Virginia, BOP-Low and Prince George County, BOP-Low and City
of Hopewell..., contracts between the Plaintiff and Virginia, the Plaintiff and Hopewell, the
contracts between Prince George County, etc
" (Id. at 6.) To the extent, however dubious,
these alleged contracts actually exist, Burks nonetheless fails to describe the content of these
contracts, include any contractual terms, ordescribe how Defendants breached them.8
6The statute provides, in pertinent part:
For the purpose of providing suitable quarters for the safekeeping, care, and
subsistence of all persons held under authority of any enactment of Congress, the
Attorney General may contract, for a period not exceeding three years, with the
proper authorities ofany State, Territory, or political subdivision thereof, for the
imprisonment, subsistence, care, and proper employment of such persons.
18 U.S.C. § 4002 (emphasis added). This statute is irrelevant to Burks, as he is held in a
federal facility.
7The statute provides, in pertinent part:
(a) In general.—The Bureau of Prisons ... shall—
(1) have charge of the management and regulation of all Federal penal and
correctional institutions;
(2) provide suitable quarters and provide for the safekeeping, care, and
subsistence of all persons charged with or convicted of offenses against
the United States, or held as witnesses or otherwise
18 U.S.C. §4042.
8Burks also makes a convoluted, passing reference to 42 U.S.C. §§ 1981 and 1985. (See Compl.
at 8-9.) He, however, fails to state a claim under either statute. "Principles requiring generous
construction ofpro se complaints .... do[ ] not require ... courts to conjure up questions never
squarely presented to them." Beaudett v. City ofHampton, 775 F.2d 1274,1278 (4th Cir. 1985).
Burks clearly seeks to raise various breach of contract claims, not claims alleging a violation of
Burks seeks ad damnum in the form of $10,000,000 in real damages per defendant and
$50,000,000 in punitive damages. (Id. at 11.)
III. Lack of Jurisdiction
"Federal courts are courts of limited jurisdiction." Kokkonen v. GuardianLife Ins. Co. of
Am., 511 U.S 375, 377,116 S.Ct. 1673,1675 (1994). They possess only such power as is
authorized by the Constitution or conferred by statute. Id. Absent a finding of subject matter
jurisdiction, this Court has no adjudicative authority to proceed further. Steel Co. v. Citizensfor a
BetterEnv't, 523 U.S. 83, 94,118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998). As explained
below, because the Circuit Court lacked jurisdiction over Burks's claims, so too does this Court.
A. Sovereign Immunity and Waiver
"Absent a waiver, sovereign immunity shields the Federal Government and its agencies
from suit. Sovereign immunity is jurisdictional in nature. Indeed, the terms of [the United
States'] consent to be sued in any court define that court's jurisdictionto entertain the suit."
FDIC v. Meyer, 510 U.S. 471,475 (1994) (alteration in original) (internalcitations and quotation
marks omitted) (citing United States v. Mitchell, 463 U.S. 206,212 (1983); United States v.
Sherwood, 312 U.S. 584, 586 (1941)).
The statutes Burks cites inhis Complaint, namely 18 U.S.C. §§ 40029 and 4042,10 do not
create a private right of action against the United States for breach of contract. See, e.g., Touche
his constitutional rights. Accordingly, these claims are legally frivolous, Neitzke v. Williams,
490 U.S. 319, 325 (1989), and will be dismissed. See 28 U.S.C. § 1997e(c)(2).
9See Owens v. Haas, 601 F.2d 1242,1247 (2dCir. 1979) (refusing to find an implied private
right of action under § 4002 in the absence of an actual contract between federal and state
governments).
Some courts have held § 4042 relevant to establishing a duty of care as the basis of a tort claim
against the United States under the Federal Tort Claims Act ("FTCA"). See, e.g., Manning v.
U.S. Dep 'tofJustice, 104 F. App'x 907, 909 (4th Cir. 2004) (using § 4042 as a standard for the
duty of care when evaluating a claim brought pursuant to the FTCA). Burks did not bring this
action in tort. Although he makes a single passing reference to the FTCA, he does so in the
Ross & Co. v. Redington, 442 U.S. 560, 569 (1979) (refusing to find a statute created an implied
private remedy when it failed to prohibit certain conduct or create federal rights in favor of
private parties). The statute most applicable to Burks's breach of contract claims is the "Big
Tucker Act," 28 U.S.C. § 1491. Smeltzerv. UnitedStates, 131 F.3d 136,136 (4th Cir. 1997).
This Act grants the Court of Federal Claims exclusive jurisdiction over breach of contract claims
against the United States where the amount in controversyexceeds $10,000. Id. The Act does
not, however, grant state courts jurisdiction over these claims.1' See Bullock v. Napolitano, 666
F.3d 281,285 (4th Cir. 2012) (explaining that in suits against the United States, state courts lack
subject matterjurisdiction unless the waiver of sovereign immunity expressly grants jurisdiction
to state courts).
B. Derivative Jurisdiction
context of arguing that he has a right to sue for breach of contract. (Compl. at 10 ("Federal
prisoners have a right to sue United States for injuries sustained in prison underthe pr[o]visions
of [the] Federal Tort Claims Act and/or contracts
" (citation omitted)).) Burks fails to raise
an FTCA claim, or allege an action in tort, in any of his pleadings or responses.
While the Court liberally construes pro se complaints, Gordon v. Leeke, 574 F.2d 1147,
1151 (4th Cir. 1978), it does not act as the inmate's advocate, sua sponte developing statutory
and constitutional claims the inmate failed to clearly raise on the face of his complaint. See
Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudett, 115 F.2d
at 1278. Furthermore, assuming arguendo Burks properly raised an FTCA claim, the Court
would still lack jurisdiction pursuant to the doctrine of derivative jurisdiction. Palmer v. City
Nat'l BankofW. Va., 498 F.3d 236,247 (4th Cir. 2007); see Part III.B. infra. If Burks wishes,
he "remains free to bring a separate action against the federal defendants in ... a district court,
for [his tort] claims, in accordance with the FTCA." Palmer, 498 F.3d at 247. Dismissal of an
FTCA claim does not infringe on "any fundamental right ofjudicial access ... [because Burks]
has not yet availed [him]self of the appropriate federal fora for resolving its claims against the
federal defendants." Id.
11 The "Little Tucker Act," 28 U.S.C. § 1346, grants Federal District Courts concurrent
jurisdiction with the Court of Federal Claims over breach of contract claims against the United
States not exceeding $10,000. Randall v. UnitedStates, 95 F.3d 339, 347 (4th Cir. 1996). Like
the Big Tucker Act, this Act also fails to grant state courts jurisdiction. Bullock, 666 F.3d at 285.
Defendant Wilson removed this action from state court pursuant 28 U.S.C. §
1442(a)(1),12 which permits the Government to remove a civil case that is filed against officers
or agencies of the United States in state court. 28 U.S.C. § 1442(a)(1). The doctrine of
derivative jurisdiction applies when the Government removes a case under § 1442. Palmer, 498
F.3d at 246. When derivative jurisdiction applies, the federal court only acquires the jurisdiction
possessed by the state court prior to removal. Id. Where, as here, the state court lacks subject
matter jurisdiction, the federal court does not acquire it upon removal, "even though in a like suit
originally brought in federal court, the court would have had jurisdiction." Smith v. Cromer, 159
F.3d 875, 879 (4th Cir. 1998) (citing Boron Oil Co. v. Downie, 873 F.2d 67, 70 (4th Cir.
1998)).13
C. Analysis
Although styled as a state law breach of contract claim, Burks may only bring his action
against the United States pursuant to the "Big TuckerAct." 28 U.S.C. § 1491. The Circuit
Court does not have subject matter jurisdiction over claims brought pursuant to that Act.
12 That statute provides:
(a) A civil action or criminal prosecution that is commenced in a State court and
that is against or directed to any of the following may be removed by them to the
district court of the United States for the district and division embracing the place
wherein it is pending:
(1) The United States or any agency thereof or any officer (or any
person acting under that officer) of the United States or of any
agency thereof, in an official or individual capacity, for or relating
to any act under color of such office or on account of any right,
title or authority claimed under any Act of Congress for the
apprehension or punishment of criminals or the collection of the
revenue.
28 U.S.C. § 1442(a)(1).
13 Notably, this Court would not have had jurisdiction over Burks's initial action, as it falls
within the exclusive jurisdiction of the Court of Federal Claims.
Bullock, 666 F.3d at 285 (observing that "state courts do not have presumptive jurisdiction to
decide suits against the United States"). Pursuant to the doctrine of derivative jurisdiction, this
Court's jurisdiction over a removed case is the same as that of the state court from which the
case originated. Palmer, 498 F.3d at244.14 Because the Circuit Court lacked jurisdiction over
Burks's case, this Court accordingly lacks subject matter jurisdiction, and must dismiss the case.
See, e.g., Patton v. F.B.L, No. 2:14-13347, 2014 WL 3496112, at *3 (S.D. W. Va. July 11,
2014).
Pursuant to the Prison Litigation Reform Act ("PLRA"), this Court must dismiss any
action filed by a prisoner if the Court determines the action (1) "is frivolous" or (2) "fails to state
a claim on which relief may be granted." 28 U.S.C. § 1915A(b)(l). A complaint "is frivolous
where it lacks an arguable basis either in law or in fact." Neitzke, 490 U.S. at 325. "[A] matter
of law is frivolous where '[none] of the legal points [are] arguable on their merits.'" Id. at 325
(quoting Anders v. California, 386 U.S. 738, 744 (1967)). Accordingly, because this Court lacks
jurisdiction, and cannot legally adjudicate Burks'scontract claims, dismissal is appropriate under
§ 1915A(b)(l).
IV. Outstanding Motions
A. Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction
Defendant Wilson failed to raise the issue of derivative jurisdiction in his Motion to
Dismiss. Instead, he argues that Burks's initial pleading fell under the exclusive jurisdiction of
the Court of Federal Claims, as he demanded $60,000,000 in damages from the United States for
14 InPalmer, a third-party plaintiff brought, inter alia, breach of contract claims against thirdparty defendants who were federal agencies. 498 F.3d at 239. The third-party defendants
removed the case to federal court pursuant to 28 U.S.C. § 1442(a). Id. The court dismissed the
action pursuant to the doctrine of derivative jurisdiction, noting that the third-party plaintiff
"remains free to bring a separate action against the federal defendants in an appropriate forum,
i.e., the Court of Federal Claims, for its contract action, in accordance with the Tucker Act
'
Id. at 247.
breachof contract. (Mem. Supp. Mot. Dismiss, ECF No. 4, at 3.) Accordingly, Defendant's
removal ofthe case to this Court was improper. Nevertheless, because the Court in fact lacks
subject matter jurisdiction,15 the Defendant's Motion to Dismiss (ECF No. 2) will be granted.
B. Remaining Motions
Because the Court lacks jurisdiction over the matter, Defendant's Motion for Summary
Judgment (ECF No. 3) will be denied. Burks's Motion for Remand (ECF No. 10) and Burks's
Motion to Amend16 (ECF No. 13) will bedenied as moot.
V. Conclusion
For the reasons set forth, Defendant Wilson's Motion to Dismiss (ECF No. 2) will be
granted. Defendant Wilson's Motion for Summary Judgment (ECF No. 3), Burks's Motion for
Remand (ECF No. 10), and Burks's Motion to Amend (ECF No. 13) will be denied. The action
will be dismissed for lack ofjurisdiction.
An appropriate Final Order will follow.
W
/s/
Henry E. Hudson
United States District Judge
Date:T^€c~f9 2d/fr
Richmond, Virginia
15 The fact that Defendant Wilson failed to raise thecorrect legal basis for dismissal is
immaterial. "[Q]uestions of subject-matter jurisdiction may be raised at any point during the
proceedings and may (or, more precisely, must) be raised sua sponte by the court." Brickwood
Contractors, Inc. v. Datanet Eng'g, Inc., 369 F.3d 385, 390 (4th Cir. 2004) (citing Bender v.
Williamsport Area School Dist., 475 U.S. 534, 541 (1986)).
16 In his Motion to Amend, Burks seeks to modify the collective ad damnum from $60,000,000
to $10,000, or, in the alternative, transfer the case to the Court of Federal Claims. (Mot. to
Amend at 4.) If the Court grants leave to amend, the matter would fall under the "Little Tucker
Act," and this Court would still lack jurisdiction under the doctrine of derivative jurisdiction.
Bullock, 666 F.3d at 285. If the Court transferred the matter to the Court of Federal Claims, it
too would lack subject matter jurisdiction pursuant to the doctrine of derivative jurisdiction.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?