Opinion
No. 6:02-CV-082-C
December 20, 2002
ORDER
On July 25, 2002, Plaintiff Francisco Villagra-Montalvan, acting pro se, filed a complaint pursuant to the Federal Tort Claims Act in the United States District Court for the District of Columbia, and requested permission to proceed in forma pauperis. The complaint was subsequently transferred to the United States District Court for the Northern District of Texas, San Angelo Division.
Plaintiff complains that on September 8, 2000, United States Customs seized his personal property when he was axrested at the Houston, Texas Port of Entry. Although Plaintiff acknowledges that Customs mailed Plaintiff's personal property to his brother in Nicaragua on February 16, 2001, he alto contends that when the property arrived in Nicaragua, a gold necklace and a silver ring were missing. Plaintiff submitted a claim for the missing property to the U.S. Customs Service on March 21, 2002, but the claim was denied on June 12, 2002. Plaintiff was advised by the U.S. Customs Service that " 28 U.S.C. § 2680(c) of the Federal Tort Claims Act bars any claim for lost or damaged property due to negligence by Customs employees while the property is under detention in Customs' custody." Kosak v. United States, 465 U.S. 848 (1984). Plaintiff requests that his complaint be construed liberally and seeks compensatory damages for his lost property.
When a prisoner seeks to proceed in forma pauperis, "[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines" that the complaint is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C.A. § 1915(e)(2)(B) (West 1994 and Supp. 2000). See 28 U.S.C.A. § 1915A (West 1994 and Supp. 2000) (stating that when a prisoner seeks redress from a governmental entity or one of its employees, the court shall review the complaint as soon as practicable and dismiss it if the court finds the complaint frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief); 42 U.S.C.A. § 1997e(c) (West 1994 and Supp. 2000) (providing that a district court shall on its own motion or the motion of any party dismiss a complaint by a prisoner regarding prison conditions if the court is satisfied the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from an immune defendant).
A claim is frivolous if it has no arguable basis in law or fact Nietzke v. Williams, 490 U.S. 319 (1989). A claim has no arguable basis in law if it is based on an indisputably meritless legal theory, "such as if the complaint alleges the violation of a legal interest which clearly does not exist." Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (quotation omitted). A claim has no arguable basis in fact if "after providing the plaintiff the opportunity to present additional facts when necessary, the facts alleged are clearly baseless." Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998).
District courts must construe in forma pauperis complaints liberally, particularly in the context of dismissals under § 1915(e)(2)(B), but are given broad discretion in determining where such complaints are frivolous. Macias v. Raul A. (Unknown) Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994). A complaint may not be dismissed under § 1915(d)(2)(B) "simply because the court finds the plaintiff's allegations unlikely." Jolly v. Klein, 923 F. Supp. 931, 942-43 (S.D. Tex. 1996). Nevertheless, a district court is bound by the allegations in a plaintiff's complaint and is "not free to speculate that the plaintiff `might' be able to state a claim if given yet another opportunity to add more facts to the complaint." Macias v. Raul A. (Unknown) Badge No. 153, 23 F.3d at 97.
"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." Federal Deposit Insurance Corporation v. Meyer, 510 U.S. 471, 475 (1994). "Sovereign immunity is jurisdictional in nature." Id. "A waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text . . . and will not be implied . . ." Lane v. Pena, 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.
"The [Federal Tort Claims Act] ("FTCA") is a waiver of sovereign immunity, providing general authority for tort suits against the [Federal] [G]overnment . . . ." Halverson v. United States, 972 F.2d 654, 655 (5th Cir. 1992). "The FTCA provides a remedy for a `negligent or wrongful act or omission' by an officer or employee of the federal government acting within the scope of his employment." Hessbrook v. Lennon, 777 F.2d 999, 1002 (5th Cir. 1985) (quoting 28 U.S.C. § 2672). "Section 1680, however, creates several exceptions to this broad waiver of sovereign immunity, including one for damages resulting from the detention of goods:
The provisions of this chapter and section 1346(b) of this title shall not apply to —
* * *
(c) Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law enforcement officer."Halverson v. United States, 972 F.2d at 655-56 (quoting 28 U.S.C. § 2680) (emphasis added). "The Supreme Court has interpreted § 2680(c) to cover not only damages occurring in the act of detention itself but also those flowing from the detention, such as the negligent storing of antiques or art objects." Id. at 656 (quoting Kosak v. United States, 465 U.S. 848 (1984)). Because this specifically "exempts from the FTCA's waiver of sovereign immunity any claim based on the detention of goods by any federal law enforcement officer in the performance of their lawfal duties," sovereign immunity bars Plaintiff's claims against the U.S. Customs Service. Id. at 656. Accordingly, this Court is without jurisdiction to hear Plaintiff's FTCA claim.
To the extent that Plaintiff has requested that his complaint be liberally construed, the Court has carefully examined his pleadings but finds that he has failed to state any other claims for relief In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). the Supreme Court "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). See Whitley v. Hunt, 158 F.3d 882, 885 and n. 1 (5th Cir. 1998) (noting that Bivens "recognized that certain circumstances, may give rise to a private cause of action against federal officials that is comparable to the statutory cause of action permitted against state officials by 42 U.S.C. § 1983") A plaintiff seeking relief under the FTCA files his claim against the United States, but a plaintiff seeking relief under Bivens must file his claim against the individual official alleged to have violated his constitutional right. Carlson v. Green, 446 U.S. at 20. Furthermore, while the FTCA creates a remedy for negligent acts and forbids relief on account of many intentional torts, Bivens is limited to recovery for intentional deprivations. Sterling v. United States, 85 F.3d 1225, 1227 (7th Cir. 1996). Plaintiff has failed to name any individual defendants; he has alleged absolutely no facts to support the proposition that any individual official intentionally deprived him of his property; and he has alleged no material facts to support the proposition that any official acted outside the scope of his authority. Furthermore, the only relief sought by Plaintiff is the recovery of monetary damages from the United States Customs Service.
Accordingly, the Court finds that this Court has no jurisdiction over Plaintiff's FTCA claim and Plaintiff has failed to state a claim for relief under Bivens, supra.
It is, therefore, ORDERED that:
1. Plaintiff's FTCA complaint is dismissed with prejudice for want of jurisdiction.
2. Plaintiff's Bivens complaint is dismissed with prejudice for failure to state a claim for which relief can be granted.
3. This dismissal shall count as a qualifying dismissal under 28 U.S.C. § 1915 and Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996).
4. Pursuant to 28 U.S.C. § 1915(b) and Williams v. Roberts, 116 F.3d 1126 (5th Cir. 1997), the full filing fee of $150.00 is assessed against Plaintiff and shall be paid by the agency having custody of Plaintiff in monthly installments as provided in 28 U.S.C. § 1915(b)(2). The agency having custody of Plaintiff shall deduct 20% of each deposit made to Plaintiff's inmate trust account and forward payments to the Court on a regular basis provided the account exceeds $10.00.
5. All pending motions are hereby denied.
Judgment shall be entered accordingly.
Plaintiff is advised that if he appeals this Order, he will be required to pay the appeal fee of $105.00 pursuant to the PLRA, and he must submit an application to proceed in forma pauperis and
6-month Certificate of Inmate Trust Account at the same time he files his notice of appeal
A copy of this Order shall be mailed to the Warden of the Federal Correctional institute, Big Spring, 1900 Simler Avenue, Big Spring, Texas 79720.