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Moler v. Gasaway

United States District Court, W.D. Louisiana, Lake Charles Division

September 23, 2019

ARTHUR FLEMMING MOLER REG. # 27271-171
v.
KEDRIC GASAWAY, ET AL.

         SECTION P

          JAMES D. CAIN, JR. JUDGE

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.

         Before the court is a complaint [doc. 1] filed pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., by Arthur Flemming Moler, who is proceeding pro se and in forma pauperis in this matter. Moler is an inmate in the custody of the Bureau of Prisons (“BOP”) and is currently incarcerated at the Federal Correctional Institute in Forrest City, Arkansas (“FCI-FC”). His claims relate to events that allegedly occurred while he was incarcerated at the Federal Correctional Institute in Oakdale, Louisiana (“FCIO”). He names as defendants Kedric Gasaway, Clara Baty, Ms. Papillion, K. Richard, H. Smith, S. Golbert, Y. Welch and Officer Deville.

         For reasons stated below, IT IS RECOMMENDED that the matter be DISMISSED for lack of jurisdiction.

         I. Background

         Plaintiff claims that while the named defendants, staff at FCIO, were in possession of his property while he was in the SHU, “legal paperwork and personal property was removed and stolen, lost and/or misplaced.” Doc. 1, p.3, ¶ IV. He alleges that 4 out of 65 legal files were removed, and assumes they were taken by staff because the files incriminated them in fraudulent activities. Doc. 1-1, p. 1, ¶ 5.

         II. Law & Analysis

         A. Frivolity Review

         Moler has been granted leave to proceed in forma pauperis in this matter. Accordingly, his complaint is subject to screening under 28 U.S.C. § 1915(e)(2), which provides for sua sponte dismissal of the complaint or any portion thereof if the court determines that it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

         A complaint is frivolous if it lacks an arguable basis in law or fact. Gonzalez v. Wyatt, 157 F.3d 1016, 1019 (5th Cir. 1998). A complaint fails to state a claim upon which relief may be granted if it is clear the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir. 1998). When determining whether a complaint is frivolous or fails to state a claim upon which relief may be granted, the court must accept plaintiff's allegations as true. Horton v. Cockrell, 70 F.3d 397, 400 (5th Cir. 1995) (frivolity); Bradley v. Puckett, 157 F.3d at 1025 (failure to state a claim).

         B. FTCA

         The United States is immune from tort suits, except to the extent that it waives that immunity. Gregory v. Mitchell, 634 F.2d 199, 203 (5th Cir. 1981). One such waiver is the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., which provides the exclusive remedy for damages for injury, death, or loss of property “resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” Id. at § 2679(b)(1). Accordingly, a plaintiff seeking relief under the FTCA files his tort claims directly against the United States, rather than the individual government actor. See Carlson v. Green, 100 S.Ct. 1468, 1472-73 (1980) (distinguishing between an FTCA action and a Bivens suit). Such claims are analyzed under the law of the place where the act or omission occurred. Sheridan v. United States, 108 S.Ct. 2449, 2454 (1988) (citing 28 U.S.C. § 1346(b)). Under the FTCA, a plaintiff is required to properly present his claims to the government agency before filing suit. Price v. United States, 69 F.3d 46, 54 (5th Cir. 1995). This presentment requirement is satisfied by the claimant presenting their tort claims to the appropriate federal agency before instituting suit in court. 28 U.S.C. § 2675(a); Izen v. Catalina, 398 F.3d 363, 367 (5th Cir. 2005). This "requirement of exhaustion of administrative review is a jurisdictional requisite to the filing of an action under the FTCA" and cannot be waived. Gregory v. Mitchell, 634 F.2d 199, 203-04 (5th Cir. 1981). Thus, a court must dismiss a suit as premature if the plaintiff failed to first exhaust administrative remedies. See Id. at 204 (observing that "jurisdiction must exist at the time the complaint is filed" and that staying or holding in abeyance premature claims would conflict with purpose of the exhaustion requirement).

         In addition, § 2401(b) of the FTCA requires that a tort claim against the United States be presented to the appropriate federal agency "within two years after such claim accrues" and then brought to federal court "within six months after . . . final denial of the claim by the agency." 28 U.S.C. § 2401(b); see also United States v. Kwai Fun Wong, 135 S.Ct. 1625, 1629 (2015); Ramming v. United States, 281 F.3d 158, 162 ...


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