Opinion
CAUSE NO. 2:19CV260-PPS/JPK
02-24-2020
TERRENCE BALLARD, Plaintiff, v. JEFF SESSIONS, et al., Defendants.
OPINION AND ORDER
Terrence Ballard filed a complaint seeking damages based on a claim that he was incarcerated for more than 430 days past his release date on a prison sentence imposed in this court more than twenty years ago, The complaint names as defendants former United States Attorney Jeff Sessions, the Federal Bureau of Prisons, the warden of the Federal Medical Center in Lexington, Kentucky, and his former defense counsel. A motion to dismiss or for summary judgment has been filed on behalf of the United States. Ballard has filed no opposition.
Ballard's claim arises from his prosecution in United States v. Ballard, 2:92CR96-JTM, in which he pled guilty to a charge of distribution of heroin in violation of 21 U.S.C. §841(a)(1), and a charge of carrying a firearm during and in relation to drug trafficking in violation of 18 U.S.C. §924(c). My review of that file, retrieved from the federal court archives in Chicago, reveals just how oversimplified Ballard's factual allegation is.
Based on his plea of guilty, Ballard was sentenced on August 2, 1993 to an aggregate prison term of 93 months, consisting of 33 months on the heroin distribution count and a consecutive 60 months on the firearm charge. [See Judgment attached as Exhibit 1.] In 1996, Ballard filed a pro se motion under 28 U.S.C. §2255 seeking a reduction of sentence. [See Exhibit 2.] Ballard argued that the Supreme Court's 1995 decision in Bailey v. United States, 516 U.S. 137 (1995), required the reversal of his conviction under §924(c). [Id. at ¶4.] On February 6, 1997, Judge Moody issued his order granting Ballard's motion, after the government conceded that, in view of the Bailey decision, Ballard's conduct did not constitute "carrying" a firearm as the statute then required. [See Exhibit 3.] The elimination of the 60 months' imprisonment imposed on the challenged count left Ballard's sentence at 33 months. As a result, Judge Moody noted in his order that it appeared the Bureau of Prisons should immediately release Ballard from custody. [Id. at 2.] On February 11, 1997, five days after the issuance of Judge Moody's order amending the judgment, the Bureau of Prisons released Ballard. [DE 14-1 at 3, 7.] This history shows that Ballard's claim that he was detained for over 430 days past his release date is misleading at best. In fact, he was released five days after the issuance of the order that reduced his sentence and necessitated his release.
The government has filed a motion to dismiss Ballard's case or for summary judgment. Without digging into the facts of the claim, the government presents procedural challenges. The first is that the legal basis for Ballard's claim must be the Federal Tort Claims Act, which requires exhaustion of administrative remedies by the filing of a claim with Bureau of Prisons, something Ballard has not done. [DE 14 at 2.] Ballard's assertion of his claim merely alleges that he overserved his sentence, without any allegations of any particular defendant's responsibility and without reference to any constitutional right. [DE 4 at 2.] In the absence of any claim of a constitutional violation, I agree with the government that the claim appears to sound in tort for negligence, which leads to analysis under the FTCA. Linder v. United States, 937 F.3d 1087, 1090 (7th Cir. 2019) (the FTCA is a means to seek damages from the United States "for common-law torts, without regard to constitutional theories"); Janis v. United States, 162 Fed.Appx. 642, 643-44 (7th Cir. 2006).
Another ramification of a claim under the FTCA is that the only proper defendant is the United States, rather than the various defendants Ballard has named. Jackson v. Kotter, 541 F.3d 688, 693 (7th Cir. 2008).
"The Eighth Amendment is violated if, through deliberate indifference, prison officials hold a prisoner too long." Schneider v. County of Will, 366 Fed.Appx. 683, 685 (7th Cir. 2010). See also Burke v. Johnston, 452 F.3d 665, 669 (7th Cir. 2006); Campbell v. Peters, 256 F.3d 695, 700 (7th Cir. 2001). Ballard's complaint makes no allegations concerning prison officials. --------
Under 28 U.S.C. §2674, "[t]he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages." The FTCA is a "limited waiver of the United States' sovereign immunity, which allows individuals to pursue actions against the federal government for '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.'" Watkins v. United States, 854 F.3d 947, 948 (7th Cir. 2017), quoting 28 U.S.C. §2675(a). The administrative exhaustion requirement is found in §2675(a): "An action shall not be instituted upon a claim against the United States for money damages...unless the claimant shall have first presented the claim to the appropriate Federal agency...." Ballard's complaint certainly fails to indicate that he has presented any claim to the Bureau of Prisons, and Ballard has not responded to the government's motion to dismiss. So it appears that any FTCA claim cannot proceed for lack of exhaustion.
Secondly the government contends that Ballard's claim is barred by the statute of limitations. Under 28 U.S.C. §2401(a), an FTCA action "shall be barred unless the complaint is filed within six years after the right of action first accrues." As applicable here, §2401(b) further provides that a "tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues." The government argues that Ballard "should have been aware of his alleged injury on the date of his scheduled release, December 8, 1995." [DE 14 at 3.] This contention overlooks the legal history of Ballard's sentence, and its reduction in 1997 based on the Supreme Court's 1995 decision in Bailey. The amended release date of December 8, 1995 did not come into being until Judge Moody granted Ballard's §2255 motion on February 6, 1997.
Even so, any claim for damages based on the length of time Ballard served on the sentence is long past ripe. Accrual of the cause of action occurs "when the claimant knows, or would reasonably be expected to know, of the existence of her injury and who caused it, whether or not the claimant is aware that there was negligence or a wrongful act involved." Watkins, 854 F.3d at 948, citing United States v. Kubrick, 444 U.S. 111, 118 (1979). In his complaint, Bailey asserts that "it was brought to [his] attention" on March 19, 2018 that he had been "incarcerated past due." [DE 4 at 2.] But the granting of the §2255 motion itself would have been the time Ballard became aware of having served more time in prison than was ultimately due on the conviction in question, And that occurred in February 1997, more than 20 years prior to the filing of Ballard's complaint in August 2019. "Although the statute of limitations is an affirmative defense, dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure is appropriate if the complaint contains everything necessary to establish that the claim is untimely," and judicial notice can be taken of public court documents including the record of the underlying criminal case and §2255 proceedings. Collins v. Village of Palatine, Illinois, 875 F.3d 839, 842 (7th Cir. 2017). Assuming without deciding that damages could be payable to a federal inmate who overserved his sentence in these circumstances, the claim is not timely brought.
ACCORDINGLY:
Defendant United States' unopposed motion to dismiss for failure to state a claim or for summary judgment [DE 13] is GRANTED.
The Clerk shall enter judgment in favor of all defendants and against plaintiff Terrence Ballard, and this matter is CLOSED.
SO ORDERED on February 24, 2020.
/s/ Philip P. Simon
UNITED STATUS DISTRICT JUDGE