Opinion
C. A. 4:24-3667-JFA-TER
06-28-2024
Mark B. Johnson, #15364-171, Plaintiff, v. Maxwell Barnes Cauthen, III, E. Jean Howard, Jill Wilson, Laura Edwards, Tricia Davis, Michael Shedd, F.B.O.P., FBOP Director Collette Peters, Private Contractor GEO Group, 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 “claimant now submits a federal tort claims act.” (ECF No. 1 at 1). Plaintiff names as Defendants mainly individuals, one agency, the FBOP, and one non-agency Geo Group. (ECF No. 1 at 1). Plaintiff alleges the BOP should know he is being illegally held for over a decade. (ECF No. 1 at 2). Plaintiff alleges the facts arise from August 2008 when he was sentenced in this federal court and Plaintiff asserts many of the individual defendants violated the Federal Rules of Criminal Procedure and Plaintiff's constitutional rights. (ECF No. 1 at 3). Plaintiff alleges there were errors in the grand jury array, his fine/restitution and prison time, and a satisfactory performance bond. Plaintiff alleges he is held illegally and that his charges were satisfied eighteen years ago with the bond. (ECF No. 1 at 7). Under the “damages and relief” section, Plaintiff names these claims as negligence-loss of liberty, abuse of process, malicious prosecution, false imprisonment, and emotional distress. (ECF No. 1 at 7). Plaintiff requests 50 million dollars.
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. 28 C.F.R. § 14.2(a). Plaintiff does not allege that he completed FTCA exhaustion.
Regardless of the potential applicability of § 2680(h), overall, Plaintiff's claims are subject to dismissal because they necessarily challenge the validity of his conviction. If the conviction was allegedly obtained illegally, then a court finding in his favor under the FTCA would have to determine that the conviction is invalid and this action is thus barred by Heck. See Harrison v. United States, No. 5:99-CT-513-BR2, 2000 WL 33965066, at *3 (E.D. N.C. Aug. 15, 2000), aff'd, 10 Fed.Appx. 130 (4th Cir. 2001). This court has noted in the past that an FTCA claim for damages arising from alleged false imprisonment by those connected to Plaintiff's federal criminal prosecution are subject to dismissal where the conviction has not been invalidated, citing Heck v. Humphrey, 512 U.S. 477 (1994). Deleston v. U.S., 2012 WL 1949374 (May 11, 2012). Heck's holding originally applied to § 1983 but has since been applied to FTCA actions. Id. (collecting cases). A favorable determination on the merits of Plaintiff's claims in this FTCA action would imply that Plaintiff's federal conviction was invalid because of the allegedly unconstitutional prosecution. Therefore, because court records do not show that he successfully challenged the lawfulness of his federal conviction, his claim that his constitutional rights were violated during the prosecution leading to his conviction should be dismissed because a right of action has not accrued. Dismissal is without prejudice.
The monetary liability of the United States under the FTCA waiver is subject to exceptions. Relevant here, § 2680(h) states the provisions of § 1346(b) shall not apply to “any claim arising out of., .false imprisonment, false arrest, malicious prosecution, abuse of process...” 28 U.S.C. § 2680(h). The United States statutorily did not waive its immunity for the claims Plaintiff desires to pursue. See Billups v. United States, 854 Fed.Appx. 514, 517 (4th Cir. 2021)(finding because of the § 2680(h) bar the district court properly dismissed the claim for lack of subject matter jurisdiction). However, section 2680(h) exemptions do not apply to “investigative or law enforcement officers.” Plaintiff does not identify how all Defendants would meet this definition. Defendants Shedd, Cauthen, and Howard were United States Attorneys involved in Plaintiff's 2008 criminal action prosecuting attorneys may not be sued under the FTCA because they do not meet the provision of “investigative or law enforcement officers.” Harrison v. United States, 2000 WL 33965066, at *3 (E.D. N.C. Aug. 15, 2000), aff'd, 10 Fed.Appx. 130 (4th Cir. 2001). Plaintiff has not alleged how the remaining Defendants could meet the exemption to the bar. Moreover, even “intentional tort claims authorized by § 2680(h) must overcome the § 2680(a) due care hurdle before sovereign immunity can be deemed waived.” Welch v. United States, 409 F.3d 646, 652 (4th Cir. 2005).
Despite Plaintiff's Complaint's FTCA heading, under a liberal construction, Plaintiff's action may sound in part in Bivens as he sues individual federal employees as Defendants. 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 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, 198 L.Ed.2d 290, 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). Plaintiff alleges the violations are of his Fifth, Sixth, Eighth, Thirteenth, and Fourteenth Amendment rights. (ECF No. 1 at 5). There has been no recognition of Bivens actions under the Sixth, Thirteenth, or Fourteenth Amendments. As to the Fifth and Eighth amendment allegations here, the context for cognizable claims does not match Plaintiff's allegations; the specific “right at issue” and context here is meaningfully different from the ones at issue in Carlson v. Green, 446 U.S. 14 (1980)(medical) and Davis v. Passman, 442 U.S. 228 (1979)(gender discrimination in congressional employment context); see also Annappareddy v. Pascale, 996 F.3d 120, 136 (4th Cir. 2021)(discussing factors counseling hesitation to extend Bivens, noting there were statutory remedies allowing criminal defendants who prevailed against frivolous government positions to recover fees and providing a cause of action for wrongful convictions).
Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Plaintiff has failed to state a claim upon which relief can be granted as to any liberally construed Bivens claim here. Further, as discussed above, the Heck bar applicable to Plaintiff's FTCA claims is equally applicable to bar Plaintiff's liberally construed Bivens claims. Poston v. Shappert, 222 Fed.Appx. 301 (4th Cir.2007).
RECOMMENDATION
Accordingly, it is recommended that the District Court dismiss this action without prejudiceand without issuance and service of process.
Russell v. Guilford Cty. Municipality, 599 Fed.Appx. 65 (4th Cir. 2015)(indicating a dismissal based on Heck should be without prejudice).
It is recommended that this action be dismissed without leave to amend as amendment would be futile given the Heck bar. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022); Green v. Cnty. of Horry, S.C., No. 4:21-CV-01876-RBH, 2021 WL 4924810, at *2, n.5 (D.S.C. Oct. 21, 2021).
Plaintiff's attention is directed to the important notice on the next page.
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).