Parrish v. United States of America
Filing
130
MEMORANDUM OPINION AND ORDER OVERRULING OBJECTIONS DKT. NO. 127 , ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION DKT. NO. 121 , GRANTING MOTION TO DISMISS DKT. NO. 102 , AND DISMISSING CASE. The Court overrules Parrish 's 127 Objections; Adopts in part and rejects in part the 121 Report and Recommendation; Grants the United States' 102 Motion to Dismiss or motion for summary judgment; dismisses Parrish's false imprisonment claim with prejudice and dismisses all other claims without prejudice. Signed by Senior Judge Irene M. Keeley on 3/23/20. (mh) (Copy PS Plaintiff via cert. mail)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DONTE PARRISH,
Plaintiff,
v.
CIVIL ACTION NO. 1:17CV70
(Judge Keeley)
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER OVERRULING
OBJECTIONS [DKT. NO. 127], ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 121],
GRANTING MOTION TO DISMISS [DKT. NO. 102], AND DISMISSING CASE
Pending before the Court is the Report and Recommendation of
United
States
Magistrate
Judge
Michael
J.
Aloi
(“R&R”),
recommending that the Court grant the government’s motion to
dismiss or, alternatively, its motion for summary judgment (Dkt.
No. 121). Also pending are Donte Parrish’s (“Parrish”) objections
to the magistrate judge’s recommendations (Dkt. No. 127). For the
reasons that follow, the Court OVERRULES Parrish’s objections (Dkt.
Nos. 127), ADOPTS IN PART AND REJECTS IN PART the R&R (Dkt. No.
121), GRANTS the government’s motion (Dkt. No. 102), and DISMISSES
the case.
I.
A. Procedural History
On May 3, 2017, Parrish, a federal inmate, initiated this
action under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq.
(“FTCA”) (Dkt. No. 1). Pursuant to 28 U.S.C. § 636 and its local
PARRISH V. USA
1:17CV70
MEMORANDUM OPINION AND ORDER OVERRULING
OBJECTIONS [DKT. NO. 127], ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 121],
GRANTING MOTION TO DISMISS [DKT. NO. 102], AND DISMISSING CASE
rules, the Court referred the complaint to Magistrate Judge Aloi
for initial screening.
On December 18, 2017, Parrish filed an amended complaint
alleging
false
infliction
of
prosecution
imprisonment,
emotional
related
abuse
distress,
to
the
of
process,
negligence,
Bureau
of
intentional
and
malicious
Prisons’s
(“BOP”)
investigation of a 2009 incident at USP Hazelton, and his placement
at various Special Management Units (“SMUs”) during the pendency of
that investigation (Dkt. No. 39). Parrish filed two Administrative
Claim forms regarding these claims, both of which were subsequently
denied by the BOP. Following the magistrate judge’s order directing
the government to address whether Parrish’s FTCA claims were
timely, the government moved to dismiss the amended complaint for
the first time on June 11, 2018.
By Memorandum Opinion and Order entered on January 16, 2019,
the Court granted in part and denied in part the government’s first
motion to dismiss (Dkt. No. 85). The Court denied the motion to
dismiss Parrish’s claim as stated in Administrative Tort Claim
TRT-MXR-06283 (“Administrative Claim ‘283” or “the ‘283 Claim”)
based
on
the
government’s
failure
to
advise
Parrish
of
the
six-month deadline within which he was required to file suit. In
2
PARRISH V. USA
1:17CV70
MEMORANDUM OPINION AND ORDER OVERRULING
OBJECTIONS [DKT. NO. 127], ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 121],
GRANTING MOTION TO DISMISS [DKT. NO. 102], AND DISMISSING CASE
the ‘283 Claim, Parrish had alleged that a BOP regional director
“abused the process” when he remanded for rehearing a disciplinary
hearing officer’s (“DHO”) decision on the incident report for the
2009
incident
at
USP
Hazelton.
The
Court
then
granted
the
government’s motion as to Parrish’s claims in his Administrative
Tort Claim TRT-MXR-2016-06710 (“Administrative Claim ‘710” or “the
‘710 Claim”). Specifically, the Court concluded that the ‘710 Claim
was time-barred because Parrish had failed to file this action
within six months after receiving adequate notice of the filing
deadline.
On January 23, 2019, Parrish moved to amend his complaint a
second time, seeking to “add more claims” to Administrative Claim
‘283 (Dkt. No. 90). He conceded that the claims he sought to add
were originally raised in the ‘710 Claim, but argued that the ‘283
Claim stemmed from the ‘710 Claim. On July 19, 2019, the Court
denied Parrish’s second motion to amend, deeming it an attempt to
add untimely claims (Dkt. No. 111). It concluded that the proposed
amendment did not allege the same misconduct as in Claim ‘283, and
explained that Parrish could not circumvent its prior determination
that the ‘710 Claim was untimely by attempting to consolidate it
with the timely ‘283 Claim.
3
PARRISH V. USA
1:17CV70
MEMORANDUM OPINION AND ORDER OVERRULING
OBJECTIONS [DKT. NO. 127], ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 121],
GRANTING MOTION TO DISMISS [DKT. NO. 102], AND DISMISSING CASE
The
government
filed
a
second
motion
to
dismiss
or,
alternatively, motion for summary judgment on June 2, 2019 (Dkt.
No. 102), in which it contended: (1) the charge pertaining to the
2009
incident
at
USP
Hazelton
was
expunged
from
his
prison
disciplinary record; (2) the claims were not first presented to the
appropriate federal agency; (3) the claims in the amended complaint
were not meritorious under applicable state law; and (4) Parrish is
barred from seeking damages beyond those requested in the ‘283
Claim. Parrish responded to the motion on August 5, 2019 (No. 117).
The government did not reply.
B.
Report and Recommendation
On November 27, 2019, Magistrate Judge Aloi entered an R&R,
recommending
that
Parrish’s
claims
of
false
imprisonment
and
malicious prosecution be dismissed for lack of subject matter
jurisdiction because they are not the same claims raised in the
‘283 Claim (Dkt. No. 121). The magistrate judge also concluded that
Parrish’s intentional infliction of emotional distress, negligence,
and abuse of process claims, and his argument that the government
had falsified documents, lacked merit. He further recommended that
4
PARRISH V. USA
1:17CV70
MEMORANDUM OPINION AND ORDER OVERRULING
OBJECTIONS [DKT. NO. 127], ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 121],
GRANTING MOTION TO DISMISS [DKT. NO. 102], AND DISMISSING CASE
Parrish’s claim for relief be denied because it exceeded the amount
originally sought in the ‘283 Claim.1
The R&R informed the parties of their right to file written
objections
to
the
R&R.
The
Court
received
Parrish’s
timely
objections to the R&R on January 2, 2020 (Dkt. No. 127).
C.
Parrish’s Objections
Parrish
has
objected
to
the
entirety
of
the
R&R.
He
specifically objects to the magistrate judge’s conclusion that his
false imprisonment and malicious prosecution claims are barred
because they were not properly raised in the ‘283 Claim. He
contends that the defendant was “on notice” of the circumstances
surrounding his amended complaint. He further objects to the
recommendations regarding the merits of his FTCA claims, the amount
of his claim for relief, and his allegation that the government
falsified documents.
II.
When considering a magistrate judge’s R&R pursuant to 28
U.S.C. § 636(b)(1), the Court must review de novo those portions to
which objection is timely made. Otherwise, “the Court may adopt,
1
The magistrate judge also recommended that the Court deny as moot a
motion for summary judgment filed by Parrish on May 30, 2018, but the
Court had already denied the motion (Dkt. No. 95).
5
PARRISH V. USA
1:17CV70
MEMORANDUM OPINION AND ORDER OVERRULING
OBJECTIONS [DKT. NO. 127], ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 121],
GRANTING MOTION TO DISMISS [DKT. NO. 102], AND DISMISSING CASE
without explanation, any of the magistrate judge’s recommendations
to
which
the
[defendant]
does
not
object.”
Dellacirprete
v.
Gutierrez, 479 F. Supp. 2d 600, 603-04 (N.D. W. Va. 2007) (citing
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will
uphold portions of a recommendation to which no objection is made
if there is no “clear error.” See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
III.
The FTCA requires a plaintiff to file an administrative claim
prior to commencing a suit against the United States. 28 U.S.C.
§ 2675. First, a plaintiff must timely file his claim with the
appropriate federal agency, which then has the power to settle or
deny it. § 2401(b). The plaintiff may file a civil action against
the
United
States
only
if
the
agency
has
denied
the
claim.
§ 2675(a). Alternatively, “[t]he failure of an agency to make final
disposition of a claim within six months after it is filed shall
. . . be deemed a final denial of the claim” for the purposes of
fulfilling the requirement. Id.
The FTCA’s administrative exhaustion requirement is fulfilled
when the agency “receives from a claimant . . . an executed
Standard Form 95 or other written notification of an incident,
6
PARRISH V. USA
1:17CV70
MEMORANDUM OPINION AND ORDER OVERRULING
OBJECTIONS [DKT. NO. 127], ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 121],
GRANTING MOTION TO DISMISS [DKT. NO. 102], AND DISMISSING CASE
accompanied by a claim for money damages in a sum certain.” 28
C.F.R. § 14.2 (emphasis added). The purpose of this notice is to
enable the agency to investigate and place a sum certain value on
the claim. Ahmed v. United States, 30 F.3d 514, 516-17 (4th Cir.
1994); cf. Henderson v. United States, 785 F.2d 121, 124 (4th Cir.
1986) (quoting Meeker v. United States, 435 F.2d 1219, 1222 (8th
Cir. 1970) (explaining that Congress intended to “improve and
expedite disposition of monetary claims against the Government by
establishing a system for prelitigation settlement, to enable
consideration of claims by the agency having the best information
concerning the incident, and to ease court congestion and avoid
unnecessary litigation”). Consequently, a plaintiff cannot present
an administrative claim based on one theory of relief and then
maintain an FTCA suit based a different cause of action or set of
facts. Deloria v. Veterans Admin., 927 F.2d 1009, 1012 (7th Cir.
1991) (finding administrative notice of conspiracy to alter medical
records was not sufficient notice of subsequent FTCA claims of
medical malpractice and negligence because the “allegations involve
wholly different incidents”).2
2
Compare Doe v. United States, 618 F. Supp. 71, 74 (D.S.C. 1985)
(explaining that it “would be an act of legal socery [sic]” to “convert”
an intentional assault and battery administrative claim to an FTCA claim
of medical malpractice because “the facts simply do not support any claim
7
PARRISH V. USA
1:17CV70
MEMORANDUM OPINION AND ORDER OVERRULING
OBJECTIONS [DKT. NO. 127], ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 121],
GRANTING MOTION TO DISMISS [DKT. NO. 102], AND DISMISSING CASE
The government contends Parrish’s amended complaint should be
dismissed for lack of jurisdiction based on his failure to exhaust
administrative remedies as to all of his claims (Dkt. No. 103 at
11). Indeed, the Fourth Circuit considers this requirement to be
jurisdictional in nature. Perkins v. United States, 55 F.3d 910,
917 (4th Cir. 1995) (affirming district court’s denial of a motion
to amend when there is “no jurisdiction to hear the case because
[Plaintiff] failed to first submit those claims as administrative
claims and exhaust her administrative remedies”); Henderson v.
United
States,
785
F.2d
121,
123
(4th
Cir.
1986)
(“It
is
well-settled that the requirement of filing an administrative claim
is jurisdictional and may not be waived.”); Kielwien v. United
States, 540 F.2d 676, 679 (4th Cir. 1976) (stating that the
“requirement is jurisdictional and is not waivable.”).
Supreme Court precedent and the language of the FTCA confirm
this line of authority. Recently, in Fort Bend County v. Davis, 139
S. Ct. 1843 (2019), a unanimous Supreme Court clarified that
administrative requirements are jurisdictional in two instances:
(1) When Congress clearly makes it so; or (2) when a “long line of
other than one for assault and battery”), with Munger v. United States,
116 F. Supp.2d 672, 676-77 (D. Md. 2000) (allowing two plaintiffs to file
separate FTCA claims even though the plaintiffs did not file separate
administrative claims because the claims “arose out of the same facts”).
8
PARRISH V. USA
1:17CV70
MEMORANDUM OPINION AND ORDER OVERRULING
OBJECTIONS [DKT. NO. 127], ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 121],
GRANTING MOTION TO DISMISS [DKT. NO. 102], AND DISMISSING CASE
Supreme Court decisions left undisturbed by Congress has attached
a jurisdictional label to a prescription.” Id. at 1849-50 (internal
quotation marks omitted)3; Cf. McNeil v. United States, 508 U.S.
106, 112 (1993) (upholding dismissal of FTCA claims for lack of
subject matter jurisdiction where a pro se plaintiff had failed to
exhaust administrative remedies prior to filing suit because “[t]he
most
natural
reading
of
the
statute
indicates
that
Congress
intended to require complete exhaustion of Executive remedies
before invocation of the judicial process.”).
When
Congress
granted
federal
district
courts
exclusive
jurisdiction to hear tort claims against the United States in the
FTCA, it conferred such power “[s]ubject to the provisions of
chapter 171.” 28 U.S.C. § 1346(b)(1). Chapter 171, Tort Claims
Procedure,
in
turn,
contains
the
administrative
exhaustion
requirement, § 2675, which indicates that the requirement is a
jurisdictional prerequisite because Congress has clearly stated it
to be so. Accordingly, Fourth Circuit precedent, read together with
3
The Court in Fort Bend County distinguished between jurisdictional bars
and mandatory claim-processing and other procedural preconditions of
relief, explaining that the latter, but not the former, are subject to
forfeiture. Id. at 1851-52 (“[A] rule may be mandatory without being
jurisdictional.”). Here, the government has not forfeited its argument
that Parrish has not properly presented his FTCA abuse of process claim
to the appropriate federal agency (Dkt. No. 102 at 11-13).
9
PARRISH V. USA
1:17CV70
MEMORANDUM OPINION AND ORDER OVERRULING
OBJECTIONS [DKT. NO. 127], ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 121],
GRANTING MOTION TO DISMISS [DKT. NO. 102], AND DISMISSING CASE
Fort Bend County and McNeil and the language of the FTCA, confirms
the
administrative
exhaustion
requirement
to
be
a
necessary
predicate to this Court’s exercise of jurisdiction.
IV.
A.
False Imprisonment
Because the Court has already dismissed as untimely Parrish’s
Administrative Claim ‘710, which included his claim of false
imprisonment (See the Court’s January 16, 2019 and July 19, 2019
Orders, Dkt. Nos. 85 at 15; 111 at 8), it declines to adopt the
magistrate judge’s recommendation that Parrish’s false imprisonment
claim be dismissed for lack of subject matter jurisdiction, and
rejects Parrish’s argument that his false imprisonment claim was
adequately presented in his Administrative Claim ‘283. Accordingly,
the Court dismisses this claim for failure to state a claim upon
which relief can be granted. Fed. R. Civ. P. 12(b)(6)
B.
Intentional Infliction of Emotional Distress and Negligence
Parrish’s
Administrative
Claim
‘283
is
the
only
timely
underlying administrative claim remaining in this case. It contains
one allegation that a BOP regional director “abused the process”
when he remanded for rehearing a DHO’s decision on a charge related
to the 2009 incident at USP Hazelton. Parrish conceded as much in
10
PARRISH V. USA
1:17CV70
MEMORANDUM OPINION AND ORDER OVERRULING
OBJECTIONS [DKT. NO. 127], ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 121],
GRANTING MOTION TO DISMISS [DKT. NO. 102], AND DISMISSING CASE
his response opposing the government’s motion to dismiss: “The
change of the charge from 100 (killing) to 100A (assisting in
killing) on remand was the basis for TRT-MXR-2016-06283.” Notably,
the R&R observed that this underlying abuse of process claim is the
only remaining claim.
Despite
the
lack
of
jurisdiction,
the
magistrate
judge
recommended that Parrish’s intentional infliction of emotional
distress and negligence claims be dismissed on their merits. The
Court declines to adopt that recommendation, and will dismiss those
claims for lack of subject matter jurisdiction because they allege
theories of relief Parrish clearly did not present in Claim ‘283.
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 95
(1998) (recognizing that “without jurisdiction . . . the only
function remaining to the court is that of announcing the fact and
dismissing the cause”).
C.
Malicious Prosecution
Parrish’s malicious prosecution claim must also be dismissed
for lack of subject matter jurisdiction because it was not raised
in the ‘283 Claim. This is so even though Parrish urges the Court
to overlook the administrative exhaustion requirement, arguing that
the government was on notice of the circumstances surrounding the
11
PARRISH V. USA
1:17CV70
MEMORANDUM OPINION AND ORDER OVERRULING
OBJECTIONS [DKT. NO. 127], ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 121],
GRANTING MOTION TO DISMISS [DKT. NO. 102], AND DISMISSING CASE
claim because the ‘710 Claim referenced the ‘283 Claim and “[dealt]
with the same matter.”
Even when liberally construed, this argument fails. First, the
‘710 Claim did not include a claim for malicious prosecution.
Second, as explained in the Court’s Memorandum Opinion and Order
denying Parrish’s second motion to amend his complaint, Parrish
cannot circumvent its prior determination that the ‘283 Claim is
the only timely underlying claim. Therefore, because Parrish has
failed to satisfy the necessary prerequisite to file a malicious
prosecution claim, the Court overrules his objection and adopts the
R&R’s recommendation that Parrish’s malicious prosecution claim be
dismissed for lack of subject matter jurisdiction.
D.
Abuse of Process
Parrish has failed to satisfy the administrative exhaustion
requirement for the claim of abuse of process alleged in his
amended complaint because it does not relate to the BOP regional
director’s remand, which was the subject of his ‘283 Claim. Parrish
alleges that, although he appealed the DHO’s decision that he had
committed an offense of “killing,” a category 100 charge, upon
remand for rehearing a BOP regional director changed that offense
12
PARRISH V. USA
1:17CV70
MEMORANDUM OPINION AND ORDER OVERRULING
OBJECTIONS [DKT. NO. 127], ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 121],
GRANTING MOTION TO DISMISS [DKT. NO. 102], AND DISMISSING CASE
to “assisting in killing,” a category 100A charge (Dkt. Nos. 117-1
at 5, 51-8 at 2).4
In contrast, the abuse of process claim in his amended
complaint alleges that the government misused the processes of
administrative detention and SMU designation for the sole purpose
of illegally confining Parrish, and that his SMU hearing took place
under false pretenses. The federal employees whose actions form the
basis for this claim include the SMU hearing examiner, Designation
and Sentence Computation Center staff, the wardens of three BOP
facilities, and “all those employees who work[ed] for the FBOP and
[were] assigned to USP Hazelton in 2009-10.”
Although both are labeled abuse of process, any commonality
between the ‘283 and FTCA claims ends there. Each sets forth a
different theory of relief; each is based on a different set of
facts; and each involves different BOP employees. Because these
allegations “involve wholly different incidents,” Deloria, 927 F.2d
4
The Court notes that the BOP’s policy regarding the implementation of
28 C.F.R. § 541.3(b) pertaining to categories of disciplinary offenses
states that “aiding another person to commit any of these offenses,
attempting to commit them, or making plans to commit them is considered
equivalent to committing the offense itself. In these cases, the letter
“A” is combined with the offense code” (Dkt. No. 103-4 at 11).
13
PARRISH V. USA
1:17CV70
MEMORANDUM OPINION AND ORDER OVERRULING
OBJECTIONS [DKT. NO. 127], ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 121],
GRANTING MOTION TO DISMISS [DKT. NO. 102], AND DISMISSING CASE
at 1012, the ‘283 Claim failed to provide proper notice for the
government to undertake an investigation and evaluation of the
abuse of process claim alleged in Parrish’s amended complaint.
Because
Parrish
has
failed
to
satisfy
the
FTCA’s
jurisdictional prerequisite, the Court rejects the recommendation
in the R&R that this claim be denied and, instead, pursuant to
Federal Rule of Civil Procedure 12(b)(1), dismisses Parrish’s abuse
of process claim based on lack of jurisdiction.5
V. CONCLUSION
For the reasons discussed, the Court:
•
OVERRULES Parrish’s objections (Dkt. Nos. 127);
•
ADOPTS IN PART AND REJECTS IN PART
the Report and
Recommendation (Dkt. No. 121);
•
GRANTS
the
United
States’s
motion
to
dismiss
or,
alternatively, for summary judgment (Dkt. No. 102);
•
DISMISSES
Parrish’s
false
imprisonment
claim
WITH
PREJUDICE; and
•
DISMISSES all other claims WITHOUT PREJUDICE.
It is so ORDERED.
5
Because the Court lacks jurisdiction to address the claims in Parrish’s
amended complaint, it need not address Parrish’s remaining objections on
their merits.
14
PARRISH V. USA
1:17CV70
MEMORANDUM OPINION AND ORDER OVERRULING
OBJECTIONS [DKT. NO. 127], ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 121],
GRANTING MOTION TO DISMISS [DKT. NO. 102], AND DISMISSING CASE
The Court DIRECTS the Clerk to transmit this Order to counsel
of record and to the pro se plaintiff, certified mail, return
receipt requested.
Dated: March 23, 2020.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
15
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