Alex et al v. St. John the Baptist Parish Sheriff's Office et al, No. 2:2016cv17019 - Document 39 (E.D. La. 2017)

Court Description: ORDER AND REASONS granting 20 Motion to Dismiss for Lack of Jurisdiction. Accordingly; IT IS ORDERED that the federal defendants' motion to dismiss with respect to the naming of the United States of America as the proper defendant is GRANTED. The Plaintiffs' claims against the individual federal defendants and federal agency defendants are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that the United States of America be substituted as the proper defendant in place of the individu al federal defendants and federal agency defendants. IT IS FURTHER ORDERED that the motion to dismiss for failure to exhaust administrative remedies under the FTCA is GRANTED and Plaintiffs' FTCA claims against the United States are DISMISSED WITHOUT PREJUDICE. Signed by Judge Susie Morgan on 2/13/2017. (cg)
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Alex et al v. St. John the Baptist Parish Sheriff's Office et al Doc. 39 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A SH AW AN D A N EVERS ALEX, ET AL., Plain tiffs CIVIL ACTION VERSU S N O. 16 -170 19 ST. J OH N TH E BAPTIST PARISH SH ERIFF’S OFFICE, ET AL., D e fe n d an ts SECTION : “E” ORD ER AN D REAS ON S Before the Court is a m otion to dism iss un der Rule 12(b)(1) for lack of subject m atter jurisdiction filed by the federal defendants. 1 The m otion is opposed. 2 For the following reasons, the m otion to dism iss is GRAN TED . Plaintiffs allege claim s under the Federal Tort Claim s Act (“FTCA”) again st a variety of federal agencies and officials. 3 Plaintiffs allege claim s for “m alicious prosecution, prosecutorial m iscon duct, m alice, . . . slander, defam ation, false arrest, [and] false im prisonm ent” arising out of a federal investigation into the alleged preparation of false tax returns, bank fraud, and forging the signature of a federal judge. 4 I. Su bs titu tio n o f th e U n ite d State s as th e Pro p e r D e fe n d an t It is well-accepted the FTCA is the exclusive rem edy for tort suits against the United States, and the FTCA thus operates as a lim ited waiver of sovereign im m unity. 5 1 R. Doc. 20 . R. Doc. 23. 3 R. Doc. 7-1. 4 Id. at 2. This m atter was transferred to this Court because it is related to the crim inal m atter num ber 1688 and civil m atter num ber 13-6397, which are both currently before this Court. On J anuary 19 20 17, Plaintiffs filed an opposition to the transfer of the instant m atter to this Court. R. Doc. 19. Transfer of this case to this Court is proper under Local Rules 3.1 and 3.1.1. To the extent Plaintiffs’ pleading is properly considered a m otion, it is denied. 5 W illougby v. United States ex rel. United States Dep’t of the Arm y , 730 F.3d 476, 479 (5th Cir. 20 13) (citing 28 U.S.C. § 2679(a)). 2 1 Dockets.Justia.com The FTCA’s waiver of sovereign im m unity is, however, subject to several exceptions. 6 As a general rule, “[i]t is beyond dispute that the United States, and not the responsible agency or em ployee, is the proper party defen dant” in an FTCA suit. 7 With respect to the individual federal defendants, the Plaintiffs allege each defendant was acting within the scope of his or her federal em ploym ent at the tim e the alleged torts were com m itted. 8 Pursuant to 28 U.S.C. § 2679(b)(1), a suit against the United States is the exclusive rem edy for persons with claim s for dam ages resulting from the actions of federal em ployees taken within the scope of their em ploym ent. 9 “Upon certification by the Attorney General that the defendant em ployee was acting within the scope of his office or em ploym ent at the tim e of the incident out of which the claim arose, any civil action or proceeding com m enced upon such claim in a United States district court shall be deem ed an action against the United States.”10 The Attorney General has delegated this certification power to the United States Attorney for the Eastern District of Louisiana, Kenneth Polite, J r. 11 Defendants have attached a certification by United States Attorney Kenneth Police, J r., certifying Assistant United States Attorneys Hayden Brockett and Loan Mim i Nguyen, Internal Revenue Service Agen ts Nicholas Nelson, Kristie Gregoire, and J ohn Parrazzo, form er United States Attorney General Eric Holder, form er United States Attorney General Loretta Lynch, Departm ent of J ustice Civil Rights 6 See, e.g., Davila v. United States, 713 F.3d 248, 256 (5th Cir. 20 13). Galvin v. Occupational Safety & H ealth Adm in., 8 60 F.2d 181, 183 (5th Cir. 1998). See also Talavera v. United States, No. 4:14-CV-0 3329, 20 16 WL 4398 678 , at *4 (S.D. Tex. Aug. 17, 20 16); Valentine v. Veterans Affairs, No. 3:16-cv-1221-D-BN, 20 16 WL 4257444, at *2 (N.D. Tex. J uly 13, 20 16) (“[A]n FTCA claim brought against a federal agency or em ployee rather than the United States shall be dism issed for want of jurisdiction .”); Schexnay der v. St. Charles Parish, Nos. 12-416, 12-542, 20 12 WL 1357784, at *2 (E.D. La. Apr. 19, 20 12); Michalik v. Herm ann, No. Civ.A. 99-3496, 20 0 1 WL 434489, at *1 (E.D. La. Apr. 26, 20 0 1); 8 R. Doc. 7-1 at 2. 9 28 U.S.C. § 2679(b)(1). 10 Id. at 2679(d)(1). 11 See 28 C.F.R. § 15.4. 7 2 Division Head Vanita Gupta, and him self, United States Attorney Kenneth Polite, J r. were acting within the scope of his or her em ploym ent at the tim e of the conduct alleged in Plaintiffs’ com plaint. 12 Thus, Plaintiffs do not have a valid FTCA claim against the individual federal defendants. The United States of Am erica will be substituted as the proper defendant in place of the individual federal defendants. II. D is m is s a l o f D e fe n d an ts Plain tiffs ’ Claim s Again s t th e Fe d e ral Age n cy The federal agency defendants 13 seek the dism issal of Plaintiffs’ claim s them . “The United States, and not the responsible agency or em ployee, is the proper party defen dant” in an FTCA suit. 14 In view of the explicit statutory language of 28 U.S.C. § 2679(a), “the courts have consistently held that an agen cy or governm ent em ployee cannot be sued eo nom ine under the Federal Tort Claim s Act.”15 Thus, Plaintiffs do not have a valid FTCA claim against the federal agency defendants. The FTCA claim s against the federal agency defendants m ust be dism issed with prejudice under Rule 12(b)(1) for lack of subject m atter jurisdiction. 12 R. Doc. 20 -3. Plaintiffs bring suit again st the United States Marshal’s Service, the Federal Bureau of Investigation, United States Secret Service, and Un ited States Departm ent of J ustice. R. Doc. 7-1 at 1. 14 Galvin v. Occupational Safety & H ealth Adm in., 8 60 F.2d 181, 183 (5th Cir. 1998 ). See also Talavera v. United States, No. 4:14-CV-0 3329, 20 16 WL 4398 678 , at *4 (S.D. Tex. Aug. 17, 20 16); Valentine v. Veterans Affairs, No. 3:16-cv-1221-D-BN, 20 16 WL 4257444, at *2 (N.D. Tex. J uly 13, 20 16) (“[A]n FTCA claim brought against a federal agency or em ployee rather than the United States shall be dism issed for want of jurisdiction .”); Schexnay der v. St. Charles Parish, Nos. 12-416, 12-542, 20 12 WL 1357784, at *2 (E.D. La. Apr. 19, 20 12); Michalik v. Herm ann, No. Civ.A. 99-3496, 20 0 1 WL 434489, at *1 (E.D. La. Apr. 26, 20 0 1); 15 Galvin, 860 F. 2d at 183. 13 3 III. Exh au s tio n o f Ad m in is trative Re m e d ie s The federal defendants also contend that once the United States is substituted as the proper defen dant, Plaintiffs’ claim s should be dism issed for failure to exhaust adm in istrative rem edies. 16 Pursuant to 28 U.S.C. § 2675(a), no action in tort m ay be instituted against the United States “unless the claim ant shall have first presented the claim to the appropriate Federal agency and his claim shall have been den ied by the agen cy in writing.”17 Only when the claim has been den ied or six m onths have passed since the adm inistrative claim was filed m ay a plaintiff bring suit in federal district court on the claim . 18 Any failure to com ply with the FTCA’s adm inistrative exhaustion requirem ent is a jurisdictional defect. 19 “The requirem ent of exhaustion of adm in istrative review is a jurisdictional requisite to the filing of act action under the FTCA.”20 The regulations at 28 C.F.R. Part 14 set forth the procedural requirem ents for subm itting an adm inistrative tort claim to an agency. Under 28 C.F.R. § 14.2, an individual m ay file an adm inistrative claim for dam ages against a federal agency by subm itting a Standard Form 95 or other written notice of the claim to the agency that allegedly com m itted the tort. 16 R. Doc. 20 -2 at 5. 28 U.S.C. § 2675(a). 18 See id.; 28 U.S.C. § 240 1(b). 19 See, e.g., McN eil v. United States, 50 8 U.S. 10 6, 112 (1993); Jerv es v. United States, 996 F.2d 517, 519 (9th Cir. 1992); Ply ly er v. United States, 90 0 F.2d 41, 42 (4th Cir. 1990 ); W illiam son v. U.S. Dep’t of Agriculture, 815 F.2d 368, 378 (5th Cir. 1987); H enderson v. United States (78 5 F.2d 121, 123 (4th Cir. 1986); Keene Corp v. United States, 70 0 F.2d 836, 840 -41) (2d Cir. 1983), cert den ied, 464 U.S. 864 (1983). 20 Gregory v. Mitchell, 634 F.2d 199, 20 3– 0 4 (5th Cir. 1981). 17 4 Plaintiffs have failed to allege the exhaustion of an adm inistrative tort claim , as required by 28 U.S.C. § 2675(a). Accordingly, Plaintiffs’ claim s against the United States under the FTCA m ust be dism issed for lack of subject-m atter jurisdiction. Accordingly; IT IS ORD ERED that the federal defendants’ m otion to dism iss 21 with respect to the nam ing of the United States of Am erica as the proper defendant is GRAN TED . The Plaintiffs’ claim s against the in dividual federal defendants 22 and federal agen cy defendants 23 are D ISMISSED W ITH PREJU D ICE. IT IS FU RTH ER ORD ERED that the United States of Am erica be substituted as the proper defendant in place of the individual federal defendants 24 and federal agen cy defendants. 25 IT IS FU RTH ER ORD ERED that the m otion to dism iss for failure to exhaust adm in istrative rem edies under the FTCA26 is GRAN TED and Plaintiffs’ FTCA claim s against the United States are D ISMISSED W ITH OU T PREJU D ICE. 21 R. Doc. 20 . United States Attorney Ken neth Police, J r., certifyin g Assistant United States Attorneys Hayden Brockett and Loan Mim i Nguyen, Internal Revenue Service Agents Nicholas Nelson , Kristie Gregoire, and J ohn Parrazzo, form er Un ited States Attorney Gen eral Eric Holder, [form er] United States Attorney General Loretta Lynch, Departm ent of J ustice Civil Rights Division Head Vanita Gupta, and United States Attorney Kenneth Polite, J r. 23 United States Marshal’s Service, the Federal Bureau of Investigation , United States Secret Service, and United States Departm ent of J ustice. 24 United States Attorney Ken neth Police, J r., certifying Assistant United States Attorneys Hayden Brockett and Loan Mim i Nguyen, Internal Revenue Service Agents Nicholas Nelson , Kristie Gregoire, and J ohn Parrazzo, form er Un ited States Attorney Gen eral Eric Holder, [form er] United States Attorney General Loretta Lynch, Departm ent of J ustice Civil Rights Division Head Vanita Gupta, and United States Attorney Kenneth Polite, J r. 25 United States Marshal’s Service, the Federal Bureau of Investigation , United States Secret Service, and United States Departm ent of J ustice. 26 R. Doc. 20 . 22 5 N e w Orle an s , Lo u is ian a, th is 13 th d ay o f Fe bru ary, 2 0 17. ______________________ _________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 6