United States District Court, W.D. Louisiana, Lake Charles Division
ARTHUR FLEMMING MOLER REG. # 27271-171
KEDRIC GASAWAY, ET AL.
A. DOUGHY UNITED STATES DISTRICT JUDGE
the Court is a Complaint [Doc. No. 1] filed pursuant to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 2671, et seq., by Plaintiff Arthur Flemming
Moler (“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.
September 23, 2019, Magistrate Judge Kathleen Kay issued a
Report and Recommendation in which she recommended that
Moler's complaint be dismissed for lack of jurisdiction
[Doc. No. 5]. On October 8, 2019, Moler filed an objection to
the Report and Recommendation [Doc. No. 6] and a Motion to
Amend his Complaint [Doc. No. 7].
Judge Kay noted that 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 FTCA, 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). The FTCA creates “a
limited waiver of sovereign immunity making the United States
liable to the same extent as private parties for certain
torts of federal employees acting within the scope of their
employment.” Montoya-Ortiz v. Brown, 154
Fed.Appx. 437, 439-40 (5th Cir. 2005) (citing United
States v. Orleans, 96 S.Ct. 1971 (1976); 28 U.S.C.
§1346(b)). However, 28 U.S.C. §2680(c) provides
that “[t]he provisions of [the FTCA] shall not apply to
. . . any claim arising in respect of . . . the detention of
any goods, merchandise, or other property by any officer of
customs or excise or any other law enforcement officer. .
Fifth Circuit has held that §2680(c) is applicable to
all claims arising from the detention of goods and
merchandise by any federal law enforcement officer in the
performance of his or her lawful duties. See Halverson v.
United States, 972 F.2d 654, 655 (5th Cir. 1992),
cert. denied, 113 S.Ct. 1297(1993);
Chapa v. United States Dep't of Justice, 339
F.3d 388 (5th Cir. 2003). Further, the Supreme Court has
concluded that the exception applies to the negligent loss or
destruction of the property while it is in the possession of
law enforcement officers. Amandi v. United States
Dep't of Homeland Sec., 2007 U.S. Dist. LEXIS 93976,
2007 WL 4302644 (W.D. La. Oct. 23, 2007); report and
recommendation adopted, NO. 07-1131, Doc. No. 15 (W.D. La.
Dec. 6, 2007). The language “arising in respect
of” is synonymous with “arising out of” and
“sweep[s] within the exception all injuries associated
in any way with the ‘detention' of goods.”
Id. (citing Kosak v. United States, 104
S.Ct. 1519 (1984)).
the Fifth Circuit has held that possession of plaintiff's
property by a BOP employee, even if unauthorized, tortious,
or wrongful, constitutes a detention within the meaning of
§ 2680(c) and is remotely related to a BOP
employee's duties in inspecting and inventorying prisoner
property. Krug v. United States, 11-40016, 2011 U.S.
App. LEXIS 20150, 442 Fed. App'x. 950 (5th Cir. Sept. 29,
2011) (citing Chapa v. DOJ, 339 F.3d 388, 391 (5th
Cir. 2003); Capozzoli v. Tracey, 663 F.2d 654, 658
(5th Cir. 1981).
the Magistrate Judge found that, while plaintiff's claim
falls within the scope of the FTCA, the exception contained
in section 2680(c) is applicable. Therefore, this Court lacks
jurisdiction to adjudicate Plaintiff's lost and/or
misplaced property claim under the FTCA since the United
States retains sovereign immunity with regard to such suits.
Court has carefully reviewed the objections filed by Moler
but finds that the Report and Recommendation is correct.
Therefore, for the reasons stated in the Report and
Recommendation of the Magistrate Judge, and after an
independent review of the record, determining that the
findings are correct under the applicable law, and
considering the objections to the Report and Recommendation
in the record, the Court will order that this matter be
DISMISSED for lack of jurisdiction.
regard to Moler's Motion to Amend [Doc. No. 7], as a
general matter, courts should grant leave to amend pleadings
“freely ... when justice so requires.” FED.
R. CIV. P. 15(a). Normally, “leave to amend is to
be granted liberally unless the movant has acted in bad faith
or with a dilatory motive, granting the motion would cause
prejudice, or amendment would be futile.” Jebaco
Inc. v. Harrah's Operating Co. Inc., 587 F.3d 314,
322 (5th Cir.2009).
the amendment would be futile. The proposed amended pleading
does not cure the deficiency of lack of jurisdiction.