Stanley v. United States of America

Filing 23

ORDER adopting 20 Report and Recommendations and DISMISSES the plaintiffs complaint WITHOUT PREJUDICE as frivolous and for failure to state a claim for relief. ORDERED that this case be STRICKEN from the docket of this Court. If the plaintiff shou ld desire to appeal written notice of appeal must be received by the Clerk of this Court within 30 days from the date of the entry of the Judgment Order. Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of the Court to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 1/23/13. (Attachments: # 1 Certified Mail Return Receipt)(jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
LOTTIE M. STANLEY,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:12CV35
(Judge Keeley)

UNITED STATES OF AMERICA,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
Pending before the Court is the magistrate judge’s Report and
Recommendation (“R&R”) concerning the civil action filed by Lottie
M. Stanley. For the reasons set forth below, the Court ADOPTS the
R&R and DISMISSES this case WITHOUT PREJUDICE.
I.
On March 2, 2012, the pro se plaintiff, Lottie M. Stanley
(“Stanley”), filed a complaint pursuant to the Federal Tort Claims
Act (“FTCA”), alleging various claims related to her incarceration
at SFF Hazelton. The Court referred this matter to United States
Magistrate Judge John S. Kaull for initial screening and a report
and recommendation in accordance with LR PL P 2. On March 6, 2012,
the magistrate judge granted Stanley’s motion to proceed in forma
pauperis without prepayment of the initial partial filing fee.
(Dkt. No. 7).

STANLEY V. UNITED STATES

1:12CV35

ORDER ADOPTING REPORT AND RECOMMENDATION
Magistrate Judge Kaull issued an R & R on October 24, 2012, in
which he recommended that Stanley’s complaint be dismissed as
frivolous pursuant to 28 U.S.C. §§ 1915(e) and 1915A. Noting that
Stanley had failed to allege any physical injuries, the magistrate
judge determined that her claims are precluded by both the FTCA, 28
U.S.C. § 1346(b)(2), and the Prison Litigation Reform Act (“PLRA”),
42 U.S.C. § 1997e(e), which prohibit an inmate from filing suit for
mental or emotional injury absent a prior showing of physical
injury. Stanley filed an objection to the R&R on November 13, 2012,
arguing that because “she is no longer a prisoner and no longer
incarcerated or confined in jail, prison, or other correctional
facility,” neither the FTCA or the PLRA operate to bar her claims.
(Dkt. No. 22 at 2).
II.
In her complaint, Stanley alleges that, in January of 2010,
she received a threatening note in her book bag while in the
education department of SFF Hazelton. (Dkt. No. 1 at 7). She
complains that she told various BOP employees she was frightened by
the note, but they nevertheless failed to adequately respond.
Rather, a prison administrator put her on “loud specker [sic]” with
a man that wanted to know “what she saw,” and Stanley was “very
scared of [his] questions.” Id. at 8. Other BOP employees also
asked her questions or made comments that made her “even more
2

STANLEY V. UNITED STATES

1:12CV35

ORDER ADOPTING REPORT AND RECOMMENDATION
scared,” i.e., one told her that “you have plenty of time to change
your home plan, what if your family’s house burns down,” id. at 12,
and another indicated that her family should stop calling the
warden because it was “on her.” Id. at 12.
Stanley also levies various accusations against SFF Hazelton’s
medical staff, alleging that she was “very scared” that a BOP
psychologist was going to “try to give her something to make her
lose her memory,” id. at 9, that another doctor “lied” to her to
get “blood work for psychology,” id. at 10, and that a physician’s
assistant had called her “crazy.” Id. at 11. She further alleges
that a religious medal was taken from her, and not timely returned,
when she was placed in the Special Housing Unit (“SHU”). Id. at 8.
Finally, she contends that she was “traumatized” by witnessing a
“Lieutenant and inmate engaging in inappropriate sexual behavior.”
Id. at 9.
As a result of these actions, Stanley alleges that she suffers
from post-traumatic stress disorder, anxiety, depression, severe
hypertension, panic attacks, severe headaches, and insomnia. She
seeks thirteen million dollars in damages.
III.
The Court liberally construes pro se complaints. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (“a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than
formal

pleadings

drafted

by

lawyers”
3

(internal

citations

and

STANLEY V. UNITED STATES

1:12CV35

ORDER ADOPTING REPORT AND RECOMMENDATION
quotation marks omitted)). Nevertheless, even under that liberal
standard, the Court must dismiss in forma pauperis actions that are
frivolous, malicious, or fail to state claims upon which relief can
be granted. 28 U.S.C. § 1915(e)(2)(B). Similarly, in screening a
complaint pursuant to § 1915A, a court must dismiss a prisoner
complaint that is frivolous, malicious, or fails to state a claim
upon which relief can be granted. 28 U.S.C. § 1915A(b)(1).
A case is frivolous if “it lacks an arguable basis either in
law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). The
Court may “apply common sense” when making this determination.
Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 954 (4th Cir.
1995) (en banc); see also Nagy v. Federal Med. Ctr. Butner, 376
F.3d

252,

256-57

(4th

Cir.

2004)

(“The

word

‘frivolous’

is

inherently elastic and not susceptible to categorical definition.
. . . The term’s capaciousness directs lower courts to conduct a
flexible analysis, in light of the totality of the circumstances,
of all factors bearing upon the frivolity of a claim.” (internal
quotation marks and citations omitted)).
Whether a complaint states a claim upon which relief can be
granted, on the other hand, is determined by the familiar standard
of review applicable to a motion to dismiss under Fed. R. Civ. P.
12(b)(6). De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003)
(citing DeWalt v. Carter, 224 F.3d 607, 611-12 (7th Cir. 2000)). In
other words, a complaint - even a pro se complaint - must contain
4

STANLEY V. UNITED STATES

1:12CV35

ORDER ADOPTING REPORT AND RECOMMENDATION
enough allegations of fact “to state a claim for relief that is
plausible on its face.” Bell Atlantic Corp. v.. Twombly, 550 U.S.
544, 547 (2007); see also Giarratano v. Johnson, 521 F.3d 298, 304
n.5

(4th

Cir.

2008)

(pro

se

pleadings

are

not

exempt

from

“Twombly’s requirement that a pleading contain more than labels and
conclusions”); see also Atherton v. District of Columbia Off. of
Mayor, 567 F.3d 672, 681–82 (D.C. Cir. 2009) (“[E]ven a pro se
complainant must plead ‘factual matter’ that permits the court to
infer ‘more than the mere possibility of misconduct.’” (citations
omitted)).
IV.
Stanley contends that the magistrate judge incorrectly found
that her claims are barred by 28 U.S.C. § 1346(b)(2) and 42 U.S.C.
§ 1997e(e) because she has recently been released from prison. The
Court disagrees.
The FTCA provides that “[n]o person convicted of a felony who
is incarcerated . . . while serving a sentence may bring a civil
action against the United States . . . for mental or emotional
injury suffered while in custody without a prior showing of
physical injury.” 28 U.S.C. § 1346(b)(2). Similarly, under the
PLRA, “[n]o federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional facility, for
mental or emotional injury suffered while in custody without a
prior

showing

of

physical

injury.”
5

42

U.S.C.

§

1997e(e).

A

STANLEY V. UNITED STATES

1:12CV35

ORDER ADOPTING REPORT AND RECOMMENDATION
prisoner, in sum, cannot bring a claim for mental or emotional
injuries without some “prior showing of physical injury.” 28 U.S.C.
§ 1346(b)(2); 42 U.S.C. § 1997e(e).
The circuit courts of appeals have uniformly found that it is
the custody status of a plaintiff at the time an action is filed,
i.e., when it is “brought,” that determines the applicability of
the PLRA. See, e.g., Cofield v. Bowser, 247 F. App’x 413, 414 (4th
Cir. 2007).1 Similarly, the relevant provision of the FTCA turns on
when a litigant “bring[s]” a civil action against the United
States. See generally Harris v. Garner, 216 F.3d 970, 973-80 (11th
Cir.

2000)

(discussion

of

“well

established”

principle

that

“‘brought’ and ‘bring’ refer to the filing or commencement of a
lawsuit, not to its continuation”); see also Welch v. United
States, 409 F.3d 646, 651 (4th Cir. 2005) (waiver of sovereign
immunity and its exceptions must be strictly construed in favor of
the sovereign). Here, as Stanley was a prisoner when she “brought”
this “action” on March 2, 2012, her claims are barred in the
absence

of

a

“prior

showing

of

1

physical

injury.”

28

U.S.C.

See also Norton v. City of Marietta, 432 F.3d 1145, 1150 (10th
Cir. 2005); Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005)
(per curiam); Witzke v. Femal, 376 F.3d 744, 750 (7th Cir. 2004);
Cox v. Mayer, 332 F.3d 422, 425 (6th Cir. 2003); Harris v. Garner,
216 F.3d 970, 973-80 (11th Cir. 2000); Ahmed v. Dragovich, 297 F.3d
201, 210 (3d Cir. 2002); Page v. Torrey, 201 F.3d 1136, 1140 (9th
Cir. 2000); Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998).
6

STANLEY V. UNITED STATES

1:12CV35

ORDER ADOPTING REPORT AND RECOMMENDATION
§ 1346(b)(2); 42 U.S.C. § 1997e(e). The Court thus OVERRULES her
objection to the R&R.
The Court further notes that, even if Stanley’s claims were
not

barred

under

these

statutory

provisions,

her

suit

would

nevertheless be subject to sua sponte dismissal for failure to
state

a

claim.

28

U.S.C.

§§

1915(e)(2)(B)(ii),

1915A(b)(1).

Liability attaches under the FTCA only “under circumstances where
the United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act or
omission occurred.” 28 U.S.C. § 1346(b)(1). The “law of the place”
means the law of the state where the tort occurred, FDIC v. Meyer,
510 U.S. 471, 478 (1994), i.e., West Virginia. Even liberally
construed,

however,

Stanley’s

scattershot

and

largely

indecipherable allegations fail to set forth any recognizable state
tort claims against the named federal employees. Her complaint,
therefore, “do[es] not permit the court to infer more than the mere
possibility of misconduct[.]” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
Finally, to the extent Stanley states in her objections that
her complaint “has merit” under Bivens v. Six Unknown Named Agents
of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the Court
notes that “[a]ny remedy under Bivens is against federal officials
individually,

not

the

federal

government.”

Randall

v.

United

States, 95 F.3d 339, 345 (4th Cir. 1996). Even if she had alleged
7

STANLEY V. UNITED STATES

1:12CV35

ORDER ADOPTING REPORT AND RECOMMENDATION
such a cause of action in her complaint, which she did not, she
could not pursue it against the United States.
V.
For the reasons stated above, the Court:
1.

ADOPTS the Report and Recommendation (Dkt. No. 20);

2.

DISMISSES the plaintiff’s complaint WITHOUT PREJUDICE2 as
frivolous

pursuant

to

28

U.S.C.

§§

1915A(b)(1)

and

1915(e)(2)(B)(i) and for failure to state a claim for
relief

pursuant

to

28

U.S.C.

§§

1915A(b)(1)

and

1915(e)(2)(B)(ii); and
3.

ORDERS that this case be STRICKEN from the docket of this
Court.

If the plaintiff should desire to appeal the decision of this
Court, written notice of appeal must be received by the Clerk of
this Court within thirty (30) days from the date of the entry of
the Judgment Order, pursuant to Rule 4 of the Federal Rules of
Appellate Procedure.
It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
the Court to enter a separate judgment order and to transmit copies

2

To the extent that the magistrate judge recommended dismissing this case
with prejudice, the Court declines to do so in light of Nagy v. FMC
Butner, 376 F.3d 252, 258 (4th Cir. 2004) (“We do not think . . . that
Congress intended a dismissal under § 1915(e)(2)(B)(i) of the in forma
pauperis statute to operate as a dismissal with prejudice.”).

8

STANLEY V. UNITED STATES

1:12CV35

ORDER ADOPTING REPORT AND RECOMMENDATION
of both orders to counsel of record and to the pro se plaintiff,
certified mail, return receipt requested.
DATED: January 23, 2013

/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

9