Opinion
Civ. File No. 02-674 (PAM/ESS)
July 31, 2002
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff's objections to the Report and Recommendation ("RR") of Magistrate Judge E.S. Swearingen dated May 29, 2002. Plaintiff also asks the Court to appoint counsel to represent him and seeks to proceed in forma pauperis.
DISCUSSION
A. Report and Recommendation
The Court must conduct a de novo review of any portion of the Magistrate Judge's opinion to which specific objections are made. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Local Rule 72.1(c)(2). In the RR, Magistrate Judge Swearingen concluded that Plaintiff's Complaint should be dismissed pursuant to 28 U.S.C. § 1915(g) "on the grounds that it is frivolous, malicious, or fails to state a claim on which relief may be granted." Based on a review of the record and the submissions of the parties, the Court concurs in part and disagrees in part with the conclusions of the Magistrate Judge. Plaintiff objects to the RR, contending that he should be allowed to proceed with this action against the "Unknown FBI Employees" named as Defendants. Plaintiff also argues that he has exhausted all administrative remedies with the FBI regarding the destruction of his property and therefore should be allowed to go forward with his claim under the Federal Tort Claims Act ("FTCA").
Under the FTCA only the United States (not individual federal employees) can be properly sued. 28 U.S.C. § 2679(b)(1). Although Plaintiff properly exhausted all administrative remedies before he filed this FTCA claim, Plaintiff failed to name the United States as a Defendant and therefore his FTCA claim fails as a matter of law. However, even assuming that Plaintiff were allowed to amend his Complaint to substitute the United States as the sole Defendant, his FTCA claim still fails under 28 U.S.C. § 2680(c). This section provides that the FTCA does not apply to "[a]ny claim arising in respect of . . . the detention of any goods or merchandise by any officer of customs or excise or any other law enforcement officer." In Kosak v. United States, 465 U.S. 848, 853 (1984), the Supreme Court held that § 2680(c) applied not only to the detention of goods, but banned all FTCA claims based on injury to or destruction of property during detention by law enforcement officers. Likewise, the Eighth Circuit has construed § 2680(c) as applicable to all law enforcement officers who detain goods, not just those involved with the United States Customs Service. Cheney v. United States, 972 F.2d 247 (8th Cir. 1992). Thus, because Plaintiff's FTCA claim attempts to hold federal law enforcement officers responsible for the alleged destruction of his property, that claim fails whether or not he substitutes the United States as the Defendant.
However, Plaintiff is correct that he should be allowed to proceed with his claim, at least in part, as a Bivens action. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). As Magistrate Judge Swearingen noted, in order to state an actionable civil rights claim, Plaintiff must allege facts showing each individual Defendant's personal responsibility in the loss or destruction of Plaintiff's property. It is obvious that neither John Ashcroft or Robert Mueller were personally involved in the destruction of Plaintiff's property and therefore cannot remain as Defendants in the present suit. The RR is correct that these Defendants must be dismissed. However, the Magistrate Judge apparently overlooked the "Unknown FBI Employees" also named as Defendants in the Complaint. As to those Defendants, Plaintiff may proceed.
Because Plaintiff is barred from seeking a remedy for the destruction of his property under the FTCA, he may proceed under 42 U.S.C. § 1983, claiming a violation of his Fifth Amendment due process rights against the "Unknown FBI Employees." See Friedman v. Young, 702 F. Supp. 433, 436-37 (S.D.N.Y. 1988) (holding that governmental taking arises to 5th Amendment violation only if plaintiff has no alternative process, such as FTCA claim, to vindicate property rights). Although Plaintiff's allegations are not perfectly worded, it is clear that he has met the liberal notice pleading requirements of Fed.R.Civ.P. 8. Plaintiff's claim will be construed as a civil rights claim under § 1983 and will be allowed to proceed.
B. Application to Proceed In Forma Pauperis
The RR also denied Plaintiff's application to proceed in forma pauperis. Because the Court has determined that Plaintiff may prosecute his claims, and because Plaintiff is currently in custody, the Court must determine whether Plaintiff meets the requirements of the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915(b).
According to this statute, prisoners who are granted IFP status are not excused from paying the appellate court filing fee. Instead, a prisoner who is granted IFP status is merely granted permission to pay the filing fee in installments, rather than paying the entire amount in advance. Ashley v. Dilworth, 147 F.3d 715, 716 (8th Cir. 1998). Section 1915(b)(1) requires prisoner IFP applicants to pay an initial partial filing fee at the outset, and § 1915(b)(2) requires that the remaining balance be paid in installments through regular deductions from the prisoner's trust account. The Court notes that Plaintiff has already paid an initial partial filing fee of $25 in this matter. Because Plaintiff has paid the initial partial filing fee, the Court directs that the remaining balance of $125.00 be paid in later installments. Prison officials should deduct funds from Plaintiff's trust account and submit such funds to the Clerk of this Court as provided by § 1915(b)(2).
C. Motion for Appointment of Counsel
Plaintiff has also filed a "Motion for the Assistance of Counsel" in this matter. (Clerk Doc. No. 8.) 28 U.S.C. § 1915(e) provides that a "court may request an attorney to represent any person unable to afford counsel." However, civil litigants (even indigent ones) do not have any constitutional or statutory right to counsel; rather, the appointment of counsel in civil cases is a matter committed to the discretion of the trial court. Mosby v. Mabry, 697 F.2d 213, 214 (8th Cir. 1982). Among the factors the court will consider in determining whether to appoint counsel are the factual complexity of the case, the ability of the plaintiff to present his claims, the complexity of the legal issues and whether both the plaintiff and the court would benefit from representation by counsel for both parties. Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986).
The Court finds that neither the facts nor the legal issues raised in this case are so complex as to warrant appointment of counsel. As of now, it appears to this Court that Plaintiff has the threshold ability to articulate his claims and to argue his positions and is therefore capable of self-representation. Moreover, the Court concludes that appointment of counsel would not substantially benefit the Court or Plaintiff. Plaintiff's motion for appointment of counsel is denied without prejudice.
CONCLUSION
Accordingly, based on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Plaintiff's Application to Proceed Without Prepayment of Fees (Clerk Doc. No. 2) is GRANTED;
2. Plaintiff is required to pay the unpaid balance of the Court filing fee, namely $125.00, in accordance with 28 U.S.C. § 1915(b)(2);
3. Plaintiff's Complaint (Clerk Doc. No. 1) is DISMISSED WITH PREJUDICE as to Defendants John Ashcroft and Robert Mueller, but Plaintiff may prosecute his § 1983 claim against the remaining Defendants; and
4. Plaintiff's "Motion for the Assistance of Counsel" (Clerk Doc. No. 8) is DENIED WITHOUT PREJUDICE.