Hamm v. Federal Bureau of Prisons, Inc. et al
Filing
12
MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 12/19/2014. Copy mailed to Pro Se Plaintiff. (jsmi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
RICKY HAMM,
Plaintiff,
Civil Action No. 3:14CV604-HEH
V.
ERIC WILSON, etal.
Defendants.
MEMORANDUM OPINION
(Granting Defendant's Motion to Dismiss)
Ricky Hamm ("Hamm"), a federal inmate confined in the Federal Correctional
Complex in Petersburg, Virginia ("FCC Petersburg"), filed suit' in the Circuit Court of
Prince George County, Virginia ("Circuit Court") against Defendants for breach of
contract. Defendant Wilson^ removed that case to this Court. This matter is before the
Court on: (1) Defendant Wilson's Motion to Dismiss or, in the Alternative, (2) for
Summary Judgment ("Motion to Dismiss," ECF No. 2; "Motion for Summary
' "BILL AT LAW FOR BREACH OF CONTRACT AND THIRD PARTY BREACH OF
CONTRACT." ("Complaint," ECF No. 1-1, at 3.) The Court employs the pagination assigned
to the Complaint by the CM/ECF docketing system,
^There appears to be some confusion as to the identity of the Defendants inthis matter. Hamm
initially named "FEDERAL BUREAU OF PRISONS, INC." and "PETERSBURG, LOW."
(Compl. at 3.) Hamm identifies the parties as "CEO Warden Wilson, agent in charge," and
"Bureau of Prisons, Inc." (Jd.) The Notice of Removal listed "WARDEN ERIC WILSON,"
"FEDERAL BUREAU OF PRISONS, INC.," and "PETERSBURG, LOW" as Defendants.
(Notice Removal at I.) Hamm has only served Defendant Wilson. (Notice Removal, Ex. 1.
thereto.) As explained below, the confusion over the identity of the Defendants is immaterial for
the purposes of this opinion.
^The United States Attorney's Office represents only Defendant Wilson, as it asserts that the
other "defendants[,] the 'Federal Bureau of Prisons, Inc.' and 'Petersburg, Low'
are not
legal entities that are capable of being sued." (Mem. Supp, Mot. to Dismiss at n.l.)
Judgment," ECF No. 3); (3)Hamm's Motion for Remand (ECF No. 6); and (4) Hamm's
Motion to Amend, or in the Alternative, to Transfer to the Court of Federal Claims
("Motion to Amend," ECFNo. 8; "Motion to Transfer," ECFNo. 9), For the reasons set
forth below, the Court will grant Defendant's Motion to Dismiss for lack of subject
matter jurisdiction.
L Procedural History
Hamm, a federal inmate proceedingpro se, filed suit in the Circuit Court against
"Federal Bureau ofPrisons, Inc." and "Petersburg, Low.""^ (Compl. at 3.) The Complaint
alleges that Defendants breached contracts "in the first instance and as a third-party
beneficiary." (Id.)
On August 29, 2014, Defendant Wilson filed a Notice of Removal of State Court
Action to United States District Court. ("Notice of Removal," ECF No. 1.) On
September 5, 2014, Defendant Wilson filed a Motion to Dismiss (ECF No. 2) and Motion
for Summary Judgment (ECF No. 3).
On September 17, 2014, Hamm filed a "Notice for Remand to State Court"
("Motion to Remand," ECF No. 6), which the Court construes as a Motion to Remand.^
Defendant Wilson filed an Opposition to Motion to Remand (ECF No. 7).
On October 7, 2014, Hamm filed a Motion to Amend (ECF No. 8) and Motion to
Transfer to the Court of Federal Claims (ECF No. 9). Defendant Wilson responded with
" The Court corrects the capitalization and spelling in quotations from Hamm's filings.
^Defendant Wilson concedes that Hamm's "Notice" ought to be construed as a Motion to
Remand. (Opp'n Mot. Remand 1, ECF No. 7.)
an Opposition to the Motion to Amend andMotion to Transfer (ECF No. 10). On
October 28, 2014, Hamm filed an untitled Memorandum of Law and Facts (ECF No. 11).
11. Summary of Allegations
Hamm's contends that a variety of conditions at the FCC Petersburg are
unsuitable. The unsuitable conditions of the facility, Hamm avers, include violations of
the fire code, "over capacity of the facilities and buildings," "inmates being subjected to
second hand smoke," "officers stealing food from the kitchen," and "violati[on] of the
code regarding capacity offacilities buildings."^ (Compl. at6-7.) Hamm argues that 18
U.S.C. § 4002^ and §4042,^ along with the United States Department ofHousing and
Urban Development's regulations for housing, 24 C.F.R. § 5.703, constitute "contracts"
^Notably, although Hamm provides a Congressional Research Service report about the general
issue of prison overcrowding (CompL, Ex. A thereto.), he does not provide a singlefact to
support the conclusion that the population in the prison exceeds its capacity, or that he has
suffered harm arising from an overcrowded prison.
^The 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 Attomey 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 Hamm, as he is held in a
federal facility.
^The statute provides, in pertinent part:
(a) In generai.~The Bureau of Prisons, under the direction of the Attomey
General, 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(a).
between the BOP and the United States, that he is a third party beneficiary to these
"contracts," and that his conditions of confinement constitute a breach of those contracts.
{Id. at 5-6.) Hamm seeks ad damnum in the form of $10,000,000 in real damages per
defendant and $50,000,000 in punitive damages. (Id. at 8.)
III. Lack of Jurisdiction
"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins.
Co. ofAm., 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 subjectmatterjurisdiction, this Court has no adjudicative authority to proceed further.
Steel Co. V. Citizensfor a Better Env'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 Hamm'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 jurisdiction to
entertain the suit." FDIC v. Meyer, 510 U.S. 471, 475 (1994) (alteration in original)
(internal citations and quotation marks omitted) (citing United States v. Mitchell, 463
U.S. 206,212 (1983); United States v. Sherwood,3\2 U.S. 584, 586 (1941)).
The statutes and regulation Hamm cites in his Complaint, 18 U.S.C. §§ 4002,^
4042*® and 24 C.F.R. § 5.703*^ do not create a private right of action against the United
States for breach of contract. See, e.g., Touche 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 certainconduct or create federal rights in favor of private parties).
The statute most applicable to Hamm's contract claims is the "Big Tucker Act,"
28 U.S.C. § 1491. Smeltzerv. UnitedStates, 131 F.3d 136 (4th Cir. 1997). This Act
grants the Court of Federal Claims exclusivejurisdiction over breach of contract claims
against the United States where the amount in controversy exceeds $10,000. Id, The Act
^See Owens v. Haas, 601 F.2d 1242,1247 (2d Cir, 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 found § 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 't ofJustice, 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). Hamm did not bring
this action in tort. Although he makes a single passing reference to the FTCA, he does so in the
context of arguing that he has a right to sue for breach of contract. (Compl. at 8 ("Federal
prisoners have a right to sue the United States for injuries sustained in prison under the
provisions of [the] Federal Tort Claims Act and/or contracts .... (citation omitted)).) Hamm
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 v. City of
Hampton, 775 F.2d 1274,1278 (4th Cir. 1985). Furthermore, had Hamm properly raised an
FTCA claim, the Court would still lack jurisdiction pursuant to the doctrine of derivative
jurisdiction. Palmer v. City Nat'I Bank, ofW. Va., 498 F.3d 236,247 (4th Cir. 2007); see Part
III.B infra. If Hamm 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 of
judicial access ... [because Hamm] has not yet availed [him]self of the appropriate federal fora
for resolving its claims against the federal defendants." Id.
'' Hamm fails to raise, and the Court does notdiscern, any rationale to support the conclusion
that regulations promulgated by the United States Department for Housing and Urban
Development apply to federal prisons.
does not, however, grant state courts jurisdiction overthese claims.
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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
Defendant Wilson removed under 28 U.S.C. § 1442(a)(l),^^ 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 Govenmient removes a case under § 1442. Palmer, 498 F.3dat 246.
When derivative jurisdiction applies, the federal court only acquires the jurisdiction
possessed by the state court prior to removal. See id, at 244, 246. When, as here, the
state court lacks subject matter jurisdiction, the federal court does not acquire jurisdiction
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. United States, 95 F.3d 339, 346-47 (4th Cir. 1996).
Like the Big Tucker Act, this Act also fails to grant state courts jurisdiction. See Bullock, 666
F.3d at 285.
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).
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 OilCo. v. Downie, 873 F.2d 67, 70 (4th Cir. 1998)).'"
C. Analysis
Although styled as a state law breach of contract claim, Hamm may only bring his
initial complaint against the United States pursuant to the "Big Tucker Act." 28 U.S.C.
§ 1491. The Circuit Court lacks subject matter jurisdiction over claims brought pursuant
to that Act. 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 ofthe state court from which the case originated. Palmer, 498 F.3d at 244.^^
Because the Circuit Court lacked jurisdiction over Hamm's case, this Court accordingly
lacks subject matter jurisdiction, and must dismiss the case. See, e.g., Patton v. F.B.I.,
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
Notably, this Court would not have had jurisdiction over Hamm's initial action, as it falls
within the exclusive jurisdiction of the Court of Federal Claims.
In Palmer, 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...."
K
at 247.
complaint "is frivolous where it lacks an arguable basis either in law or in fact." Neitzke
V. Williams, 490 U.S. 319, 325 (1989). "[A] matter of law is frivolous where '[none] of
the legal points [are] arguable on their merits.'" Id. {c^uoimg Anders v. California, 386
U.S. 738, 744 (1967)). Accordingly, because this Court lacks jurisdiction and cannot
legally adjudicate Hamm's 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 Hamm's initial pleading fell under the exclusive
jurisdiction ofthe Court of Federal Claims, as he demanded $60,000,000 in damages
from the United States for breach of contract. (Mem. Supp. Mot. to Dismiss, ECF No. 4,
at 3.) Accordingly, Defendant's removal of the case to this Court was improper.
Nevertheless, because the Court, in fact, lacks subject matter jurisdiction,'^ 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. Hamm's Motion for Remand (ECF
The fact that Defendant Wilson failed to raise the correct 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.
WilliamsportAreaSck Dist., 475 U.S. 534, 541 (1986)).
No. 6), Hamm's Motion to Amend'^ (ECF No. 8), and Hamm's Motion to Transfer*^
(ECF No. 9) will be denied 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), Hamm's
Motion for Remand (ECF No. 6), Hamm's Motion to Amend (ECF No. 8), and Hamm's
Motion to Transfer (ECF No. 9) will be denied. The action will be dismissed for lack of
jurisdiction.
An appropriate Final Order will accompany this Memorandum Opinion.
/s/
Henry E. Hudson
United States District Judge
Date:tW.tq2.om
Richmond, Virginia
In his Motion to Amend, Hamm 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. Amend
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.3dat285.
If the Court transferred this action to the Court of Federal Claims, it too would lack subject
matter jurisdiction pursuant to the doctrine of derivative jurisdiction.
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