Opinion
C. A. 4:24-2597-TMC-TER
05-15-2024
Charlton Beasley, #27341-076, Plaintiff, v. Edgefield Mailroom Clerks, Edgefield Correctional Institution, John Does, Mr. Parker, Ms. Wells, Mr. Davis, Mr. Hawkes, Mr. Vaneman, Warden Janson, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
This is a civil action filed by a federal prisoner, proceeding pro se and in forma pauperis. Pursuant to 28 U.S.C. § 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court. See 28 U.S.C. § 1915(e).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison Litigation Reform Act of 1996, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir.1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983).
The Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action “fails to state a claim on which relief may be granted,” “is frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A finding of frivolousness can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. See Neitzke, 490 U.S. at 327.
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint is subject to summary dismissal. 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 plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). 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) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
Plaintiff alleges this is a “1983 action.” (ECF No. 1 at 1). Plaintiff is a federal prisoner suing mostly individual federal actors. Plaintiff's factual allegation underpinning his claims is that his mail is opened outside of his presence. (ECF No. 1). Plaintiff lists his claims as First, Fifth, and Sixth Amendment violations, failure to train, negligent retention/supervision, emotional distress, and compensatory/punitive damages. (ECF No. 1). Liberally construed, Plaintiff's claims are analyzed under the FTCA, Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and/or 31 U.S.C. § 3723.
FTCA & § 3723
The FTCA does not create a new cause of action. Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001). The statute merely waives sovereign immunity and “permits the United States to be held liable in tort in the same respect as a private person would be liable under the law of the place where the act occurred.” Id. FTCA jurisdiction arises from 28 U.S.C. § 1346(b). Under the FTCA, a federal court will not have jurisdiction over a tort suit against the United States “unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing....” 28 U.S.C. § 2675(a). The Form for first presenting an FTCA claim to the appropriate federal agency is Standard Form 95, not the form Plaintiff submitted. 28 C.F.R. § 14.2(a). Plaintiff attached a BP-A0943 “Small Claims for Property Damage or Loss(31 U.S.C. § 3723)” form completed on October 9, 2023 to his Complaint. (ECF No. 1-2 at 1). The § 3723 form complains of incidents when mail was opened without his presence and asks for $265,000. In the Complaint itself, Plaintiff alleges he filed an “administrative tort claim” on October 9, 2023, the date Plaintiff filed his § 3723 form instead. (ECF No. 1 at 2). The FTCA Standard Form 95 and 31 U.S.C. § 3723 BP-A0943 form are not the same and by filing the latter he did not file the former.
The statute 31 U.S.C. § 3723 is a different administrative process and has a statutory limit for settlement under $1,000. Plaintiff's form requested $265,000. (ECF No. 1-2 at 1). Plaintiff's completed form does not allege an actual property loss. Plaintiff does not allege that anyone tookhis mail and his allegations support that he did receive his mail. The BP-A0943 form Plaintiff filed is not a tort claim, but is for a “$1,000 or less” claim under § 3723; it appears Plaintiff did not file the prerequisite Standard Form 95 for an FTCA claim.
There is an exception to the limited waiver of sovereign immunity of the United States if the claim involves detention of property; it does not appear to be applicable here. See 28 U.S.C. § 2680(c); Ali v. Federal Bureau of Prisons, 552 U.S. 214, 241 (2008)
This court lacks jurisdiction over Plaintiff's liberally construed FTCA claim as Plaintiff's submission of a § 3723 form is not a Standard Form 95 required to comply with 28 U.S.C. § 2675(a).
If Plaintiff is instead attempting to appeal his § 3723 claim, when there is a claim under § 3723, “[t]he Government's decisions regarding claims governed by this statute are not subject to judicial review.” Cook v. United States, No. 0:11-cv-320-RMG-PJG, 2012 WL 384887, at *3 (D.S.C. Jan. 6, 2012), report and recommendation adopted, 2012 WL 384935 (D.S.C. Feb. 6, 2012), aff'd, 530 Fed.Appx. 217 (4th Cir. 2013)(citing 31 U.S.C. § 3721(k); Merrifield v. United States, 14 Cl.Ct. 180, 183-184 (1988)).
Additionally, where a federal prisoner argued government employees opened his mail, the postal-matter exception was applied to find the court lacked jurisdiction over the FTCA claim. Loney v. United States, 2015 WL 731633, at *3 (E.D. Va. Feb. 18, 2015), aff'd, 623 Fed.Appx. 78 (4th Cir. 2015)(immunity is preserved for injuries arising even consequentially/indirectly where mail arrives later or in damaged condition). This is not the primary basis for dismissal but a supporting additional reason for summary dismissal.
Bivens
Plaintiff asserts this is a § 1983 action for constitutional violations of his First, Fifth, and Sixth Amendment rights. Plaintiff sues federal actors, is a federal prisoner, and liberally construed Plaintiff's allegations are analyzed under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Bivens “established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980). Bivens claims are available on very limited grounds. Violations of the Fourth, Fifth, and Eighth Amendments only in certain limited contexts are cognizable claims under the expansion of Bivens. See Carlson v. Green, 446 U.S. 14 (1980), Davis v. Passman, 442 U.S. 228 (1979); Ziglar v. Abbasi, 137 S.Ct. 1843, 1859 (2017); see also Egbert v. Boule, 142 S.Ct. 1793, 1799 (2022)(stating a claim under Bivens is highly in doubt).
There has been no extension or availability/recognition of a Bivens claim in the context of mail being opened outside of a prisoner's presence. To the extent Plaintiff alleges his First, Fifth, and Sixth Amendment rights have been violated, the Supreme Court has never recognized a First-Amendment-based Bivens remedy in any context. Earle v. Shreves, 990 F.3d 774, 779 (4th Cir. 2021). “Nor has the Supreme Court recognized an implied cause of action under Bivens for alleged violations of the Sixth Amendment.” Glover v. Brewer, No. 9:19-cv-1770-MBS-BM, 2020 WL 1033585, at *2 (D.S.C. Feb. 3, 2020), report and recommendation adopted, 2020 WL 1027331 (D.S.C. Mar. 2, 2020). Plaintiff's allegations that his claim arises under the Fifth Amendment are of a claim and context inapposite of that in Davis and do not sound under the equal protection aspect. See Abassi, 582 U.S. at 140; Annappareddy v. Pascale, 996 F.3d 120, 132-134 (4th Cir. 2021).
Plaintiff has failed to state a cognizable Bivens claim upon which relief can be granted.
RECOMMENDATION
Accordingly, it is recommended that the District Court dismiss this action without prejudice and without issuance and service of process.
It is recommended that this action be dismissed without leave to amend. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022).
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
Post Office Box 2317
Florence, South Carolina 29503
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).