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Stewart v. USA

United States District Court, W.D. Louisiana, Alexandria Division

February 2, 2015

CARL WAYNE STEWART, Plaintiff
v.
USA, et al., Defendants

SECTION " P"

Carl Wayne Stewart, heir at law on behalf of Dorothy Green Stewart, Plaintiff, Pro se, Natchitoches, LA.

For USA, Defendant: Joseph P Landreneau, LEAD ATTORNEY, U S Attorneys Office (SHV), Shreveport, LA.

For City of Natchitoches, Defendant: Ronald E Corkern, Jr, LEAD ATTORNEY, Corkern Crews & Guillet, Natchitoches, LA.

JAMES D. KIRK, UNITED STATES MAGISTRATE JUDGE. JUDGE DEE D. DRELL.

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

JAMES D. KIRK, UNITED STATES MAGISTRATE JUDGE.

Before the court is a complaint filed by Carl Wayne Stewart, pursuant to 42 U.S.C. § 1983 and 31 U.S.C. § 3729 on July 7, 2014. The named defendants are the United States of America, the USDA/FmHA, [1] the State of Louisiana, and the City of Natchitoches.

Stewart contends that he is the heir of Dorothy Green Stewart, that Dorothy Green Stewart had a contract with the USDA/FmHA, and that, on March 20, 1991, the Natchitoches Parish Sheriff, as ordered by the 10th Judicial District Court in Natchitoches Parish, Louisiana, seized and sold Dorothy Green Stewart's property at 1521 Amulet St., Natchitoches, Louisiana on behalf of the State of Louisiana and the United States Department of Agriculture (" USDA") (Doc. 1). Stewart alleges that personal property was also taken and destroyed (Doc. 1). Stewart also appears to allege that criminal proceedings were unlawfully initiated and that the federal government has been defrauded (Doc. 1).

Law and Analysis

Motion to Dismiss

A motion to dismiss an action for failure to state a claim admits the facts alleged in the complaint, but challenges plaintiff's right to relief based upon those facts. Crowe v. Henry, 43 F.3d 198, 203 (5th Cir. 1995). In particular, a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Hirras v. National Railroad Passenger Corp., 10 F.3d 1142, 1144 (5th Cir. 1994), vacated on other grounds, 512 U.S. 1231, 114 S.Ct. 2732 (1994); Doe, 753 F.2d at 1102. For the purposes of a motion to dismiss for failure to state a claim upon which relief can be granted, the factual allegations of the complaint must be taken as true, and any ambiguities must be resolved in favor of the pleader. Doe v. U.S. Dept. of Justice, 753 F.2d 1092, 1101 (D.C.Cir. 1985). It is presumed that general allegations embrace the specific facts that are necessary to support the claim. National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 114 S.Ct. 798, 803 (1994), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 2137 (1992).

United States of America & USDA/FmHA

The USA and the USDA/FmHA filed a motion to dismiss pursuant to Fed.R.Civ.P. rule 12(b)(6) (Doc. 28).

1.

First, the USA and the USDA/FMHA contend that Stewart failed to state a claim against them under Section 1983.[2]

Section 1983 prescribes redress for conduct by any person who, under color of state law, acts to deprive another person of any right, privilege, or immunity secured by the Constitution and laws of the United States. 42 U.S.C. § 1983. Thus, a plaintiff in a civil rights suit must show that the conduct complained of was committed by a person acting under color of state law . Lugar v. Edmondson Oil Co., Inc., 475 U.S. 922, 937, 102 S.Ct. 2744, 2753 (1982). In other words, the defendant must be a state actor. The United States of America and the USDA/FmHA are not " state actors."

On the other hand, the United States (and, through it, its agencies) may be sued under the Federal Tort Claims Act (" FTCA"), 28 U.S.C. § § 2671-2680. Under the FTCA, a plaintiff must name the United States as the sole defendant. McGuire v. Turnbo, 137 F.3d 321, 324 (5th Cir. 1998), citing Atorie Air, Inc. v. Federal Aviation Administration, 942 F.2d 954, 957 (5th Cir. 1991).

However, in the case at bar, Stewart did not mention the FTCA and instead stated that he was bringing his action pursuant to Section 1983. However, the only state actor named is the Natchitoches Parish Sheriff. Since the USA (and, through it, the USDA/FmHA) may not be sued under Section 1983, [3] defendants' motion to dismiss (Doc. 28) should be granted and Stewart's Section 1983 action against the United States and the USDA/FmHA should be dismissed without prejudice.

Normally, since Stewart is proceeding pro se, he should be allowed to amend his suit to file an action against the USA pursuant to the Federal Tort Claims Act.[4] However, as discussed below, such a claim would be prescribed now.

Therefore, defendants'' motion to dismiss Stewart's Section 1983 claims (Doc. 28) should be granted.

2.

Defendants also contend that Stewart's claims pursuant to the False Claims Act should be dismissed pursuant to Fed.R.Civ.P. rule 12 (b)(6).

The purpose of the False Claims Act is to protect the funds and property of the federal government from fraudulent claims, regardless of the particular form or function of the government instrumentality upon which such claims were made. Rainwater v. U.S., 356 U.S. 590, 592, 78 S.Ct. 946, 948 (1958). Under 31 U.S.C. § 3730(b), a private person " may bring a civil action for a violation of Section 3729 for the person and for the United States Government. The action shall be brought in the name of the Government." The False Claims Act is confined to those persons who make or cause to be made a claim " knowing such claim to be false, fictitious, or fraudulent" or who knowingly " enters into any agreement, combination, or conspiracy to defraud the Government... by obtaining... the payment...of any false or fraudulent claim." U.S. v. Prioia, 272 F.2d 589, 593 (5th Cir. 1959). To show a violation of the False Claims Act, the evidence must demonstrate " guilty knowledge of a purpose on the part of (the defendant) to cheat the Government." Peterson v. Weinberger, 508 F.2d 45, (5th Cir.), cert. den., 423 U.S. 830, 96 S.Ct. 50 (1975), and cases cited therein.

Since Stewart names the government as a defendant in this case, he is alleging the fraudulent or illegal action was made by the government against himself and/or Dorothy Green Stewart, rather than against the government. Therefore, Stewart has not alleged facts on which relief may be granted pursuant to the False Claims Act.

Defendants' motion to dismiss should be granted (Doc.28) and Stewart's action pursuant to the False Claims Act should be denied and dismissed.

Prescription

The United Stated and the USDA/FmHA also move to dismiss Stewart's action as untimely (Doc. 28).

Section 1983 and Bivens actions are governed by Louisiana's one year prescriptive period. La.C.C. art 3492; Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938 (1985); McGregor v. LSU Bd. of Supervisors, 3 F.3d 850, 864 (5th Cir. 1993), cert, den., 510 U.S. 1131, 114 S.Ct. 1103 (1994); Gaspard v. U.S., 713 F.2d 1097, 1102 (5th Cir. 1983), cert, den., 466 U.S. 975, 104 S.Ct. 2354 (1984). This prescriptive period commences to run from the date injuries or damages are sustained, Washington v. Breaux, 782 F.2d 553, 554 (5th Cir. 1986), or from the time the plaintiff knew or could reasonably have known he had a cause of action, under the doctrine of contra non valentum, McGregor, 3 F.3d at 865. Also, Corsey v. State Dept, of Corrections, 375 So.2d 1319, 1322 (La. 1979).

Stewart contends in his complaint that, on March 20, 1991, either the Louisiana 10th Judicial District issued an order for the seizure and sale of the property or the property was sold on that date. Either way, Stewart's complaint is filed well beyond the one year limitation period for Section 1983 and Bivens claims.

Under the FTCA, a plaintiff waives his claim if he fails to 1) notify the agency in writing about his claim within two years after the claim accrues, or 2) file suit within six months after the agency denies his claim. 28 U.S.C. § 2401(b). Cook v. United States, 978 F.2d 164, 165-166 (5th Cir. 1992), and cases cited therein. Again, even if Stewart has exhausted his administrative remedies for a federal tort claim against the United States, such a claim would be prescribed.

Finally, a civil action under section 3730 of the False Claims Act " may not be brought (1) more than 6 years after the date on which the violation of section 3729 is committed, or (2) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last." 31 U.S.C. § 3731(b). Since Stewart alleges the " fraud" took place in 1991, more than ten years before he filed the present suit, his claim under the False Claims Act is also prescribed.

Accordingly, the defendants' motion to dismiss (Doc. 28) should be granted and Stewart's action should be dismissed in its entirety as prescribed.

State of Louisiana

The State of Louisiana also filed a motion to dismiss (Doc. 43).

Neither a state nor its officers acting in their official capacities are " persons" under § 1983. Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 258, 362 (1991). Therefore, Stewart's Section 1983 action against the State of Louisiana should be dismissed.

Also, since Stewart has not alleged that the State of Louisiana has attempted to defraud the United States, Stewart has not stated a claim against the State of Louisiana under the False Claims Act.

Therefore, the motion to dismiss filed by the State of Louisiana (Doc. 43) should be granted and Stewart's action against the State of Louisiana should be dismissed for failure to state a claim on which relief may be granted.[5]

Conclusion

Based on the foregoing discussion, IT IS RECOMMENDED that the motion to dismiss filed by the United States and the USDA/FmHA (Doc. 28) be GRANTED, that the motion to dismiss filed by the State of Louisiana (Doc. 43) be GRANTED, and that Stewart's action against all defendants be DENIED AND DISMISSED WITH PREJUDICE in its entirety as untimely.

Under the provisions of 28 U.S.C. § 636(b)(1)(c) and Fed.R.Civ.P. 72(b), the parties have fourteen (14) days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. No other briefs (such as supplemental objections, reply briefs etc.) may be filed. Providing a courtesy copy of the objection to the magistrate judge is neither required nor encouraged. Timely objections will be considered by the district judge before making a final ruling.

A PARTY'S FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATIONS CONTAINED IN THIS REPORT WITHIN FOURTEEN (14) CALENDAR DAYS FROM THE DATE OF ITS SERVICE SHALL BAR AN AGGRIEVED PARTY, EXCEPT ON GROUNDS OF PLAIN ERROR, FROM ATTACKING ON APPEAL THE UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT JUDGE.

THUS DONE AND SIGNED.


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