Opinion
C/A No.: 1:19-2963-JFA-SVH
03-20-2020
Michael Owen Harriot, Plaintiff, v. United States, Defendant.
REPORT AND RECOMMENDATION
Michael Owen Harriot ("Plaintiff"), proceeding pro se and in forma pauperis, brings a claim against the United States ("Defendant") pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b) ("FTCA"). This matter comes before the court on Defendant's motion to dismiss brought pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). [ECF No. 17]. The motion having been fully briefed [ECF Nos. 17, 20], it is ripe for disposition.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendant's motion to dismiss. I. Factual and Procedural Background
Plaintiff is a federal prisoner currently incarcerated at the Federal Correctional Institution in Estill, South Carolina ("FCI-Estill"). [ECF No. 1 at 1]. Plaintiff alleges prison officials negligently and wrongfully deleted his mother's name off his visitor's list on February 2, 2019, and thereby did not allow his mother to visit him on that day, causing travel expense losses, humiliation, embarrassment, emotional distress, and lack of sleep. Id. at 1-2. Plaintiff has submitted with his complaint a copy of his visitor's list, indicating his mother was approved to visit him as of January 31, 2013. [ECF No. 1-1 at 3]. II. Discussion
Plaintiff indicates these expenses are significant because his parents are citizens of Jamaica and flew to see him following health problems experienced by his mother. [ECF No. 1 at 2]. Plaintiff was allowed brief visitation by his parents on April 13, 2019, and, thereafter, his mother returned to Jamaica and died on June 21, 2019. Id. at 6.
A. Standard on Motion to Dismiss
Dismissal is appropriate under Fed. R. Civ. P. 12(b)(1) where the court lacks subject-matter jurisdiction and under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to "regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) ). The court is "not required to accept as true the legal conclusions set forth in a plaintiff's complaint." Edwards, 178 F.3d at 244. Indeed, "[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion." Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
Plaintiff alleges he suffered damages as a result of negligence of federal employees while acting within the scope of their office; therefore, the FTCA is controlling. See 28 U.S.C. §§ 1346(b), §2671 et seq. In FTCA actions, a remedy against the United States is exclusive of any other civil action or proceeding for money damages against the employee whose act or omission gave rise to the claim. 28 U.S.C. §2679(b)(1).
Generally, the United States may not be sued without its consent, and its consent must be unequivocally manifested in the plain language of a statute. Lane v Pena, 518 U.S.187, 192 (1996). "To sustain a claim that the Government is liable for awards of monetary damages, the waiver of sovereign immunity must extend unambiguously to such monetary claims." Id. (citing United States v. Nordic Vill. Inc., 503 U.S. 30, 34 (1992)).
The FTCA waives sovereign immunity in civil actions against the United States:
for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within
the scope of his office or employment, 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).
Courts have consistently held, for the purposes of a claim brought under the FTCA, the "law of the place" means "the law of the state" in which the alleged tort occurred. See Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 478 (1994) ("Indeed, we have consistently held that § 1346(b)'s reference to the 'law of the place' means law of the State—the source of substantive liability under the FTCA."); Carlson v. Green, 446 U.S. 14, 23 (1980) ("[A]n action under FTCA exists only if the State in which the alleged misconduct occurred would permit a cause of action for that misconduct to go forward.").
Here, because the government's acts or omissions allegedly occurred while Plaintiff was incarcerated in a federal facility in South Carolina, the substantive law of South Carolina controls. In South Carolina, to recover on a negligence claim, a plaintiff must show "the (1) defendant owes a duty of care to the plaintiff, (2) defendant breached the duty by a negligent act or omission, (3) defendant's breach was the actual and proximate cause of the plaintiff's injury, and (4) plaintiff suffered an injury or damages." Sabb v. S.C. State Univ., 567 S.E.2d 231, 237 (S.C. 2002) (citation omitted).
In the federal prison context, the duty of care owed by the Bureau of Prisons ("BOP") to federal prisoners ultimately is fixed by 18 U.S.C. § 4042, independent of an inconsistent state rule. United States v. Muniz, 374 U.S. 150, 164 (1963). Section 4042 states the BOP will "provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States." 18 U.S.C. § 4042. This language clearly establishes that the BOP has a duty to those in its care. A breach of duty exists when it is foreseeable that one's conduct may likely injure the person to whom the duty is owed. Horne v. Beason, 331 S.E.2d 342, 344 (S.C. 1985). "The damages sustained must be shown to have been proximately caused, i.e. causally connected, to the breach of duty in order to warrant a recovery." Id.
In this case, Plaintiff alleges the prison staff negligently and wrongfully deleted his mother's name off his prison visitor list and denied him and his mother visitation rights at FCI-Estill on February 2, 2019. [ECF No. 1]. He states staff breached the duty of care in denying him visitation rights. Id. at 9. However, Plaintiff points to no South Carolina law, nor is the court aware of any, providing for a personal injury action for denial of visitation in prison. See Carter v. Fed. Bureau of Prisons, C/A No. EP-07-433-PRM, 2008 WL 4600556, at *4 (W.D. Tex. Sept. 30, 2008) (holding plaintiff's claim would not survive a 12(b)(6) motion because she did not provide any grounds for relief under Texas law after being denied visitation with her husband at a BOP facility). The authority cited by Plaintiff in his response does not address this issue. [ECF No. 20 at 6-7]. Thus, Plaintiff has failed to demonstrate that the United States, if a private person or entity, owed a duty to him "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674.
Plaintiff cites 28 C.F.R. § 540.51, which provides BOP procedures regarding visitation. However, Plaintiff cites to no authority holding that a violation of this BOP regulation has a private analogue under South Carolina law. See, e.g., Williams v. United States, 242 F.3d 169, 175 (4th Cir. 2001); Klepper v. City of Milford, Kansas, 825 F.2d 1440, 1448 (10th Cir. 1987) ("It is well established that where a negligence claim is based on a violation of a federal statute or regulation, no claim will lie under the FTCA in the absence of some other duty under the applicable state law.").
Additionally, no inmate may bring any civil action against the United States for mental or emotional injury suffered while in custody without a prior showing of physical injury. See Mayfield v. Fleming, 32 F. App'x 116 (4th Cir. 2002) (citing 42 U.S.C.A. § 1997e(e)) ("the district court correctly concluded that Mayfield's claim for money damages is barred because he can show no physical injury."). As provided by 28 U.S.C. § 1346(b)(2):
No person convicted of a felony who is incarcerated while awaiting sentencing or while serving a sentence may bring a civil action against the United States or an agency, officer, or employee of the Government, for mental or emotional injury suffered while in custody without a prior showing of physical injury . . . .28 U.S.C. § 1346(b)(2); see also Dorsey v. United States, C/A No. 5:19-0050-RMG, 2020 WL 614240, at *2 (D.S.C. Feb. 10, 2020) ("Nor are Plaintiff's allegations of aggravated blood pressure or diabetes and emotional distress or depression sufficient 'physical injury' to sustain a claim for violation of the FTCA."). Plaintiff alleges he suffered mental injury, including humiliation, embarrassment, emotional distress, and lack of sleep. [ECF No. 1 at 1-2, 10]. However, he does not assert any physical injury. See id.
Given the recommendation above, it is unnecessary to address the parties' arguments as to whether Plaintiff can recover money damages on behalf of his deceased mother. [ECF No. 17 at 7; ECF No. 20 at 10-11].
Accordingly, the undersigned recommends dismissal of Plaintiff's FTCA claim. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends granting Defendant's motion to dismiss. [ECF No. 17].
IT IS SO RECOMMENDED. March 20, 2020
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).