Loney v. United States of America et al, No. 3:2011cv00845 - Document 63 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. See Opinion for details. Signed by District Judge Robert E. Payne on 02/18/2015. Copy sent to Pro Se.(ccol, )
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Loney v. United States of America et al Doc. 63 P IN THE UNITED STATES DISTRICT II b COURT E FEB I82015 ij FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division IL CLERK, U.S. DiSTRiCT COURT RICHMOND. VA KIRK LEE LONEY, Plaintiff, V. Civil Action No. UNITED STATES OF AMERICA, ^ 3:11CV845 al., Defendants. MEMORANDUM OPINION Kirk Lee Correctional Loney, Center a former in federal Petersburg inmate ("FCC") at the filed Federal this action under Bivens^ and the Federal Tort Claim Act ("FCTA"), 28 U.S.C. §§ 1346, 2671, Particularized Complaint grievances from 2008 on until No. is proceeding 28). a The running officials his Loney's Particularized list during on of Loney's incarceration By Memorandum Opinion and Order entered 2014, Complaint the failed joinder of Therefore, claims (ECF prison 26, matter contains 2013. requiring Loney's The Complaint against November 59.) seq. essentially Particularized rules et the Court except for Court to parties conform and dismissed his concluded FTCA with claims. without claim the that the pertinent (ECF Nos. prejudice against the all 58, of United ^ Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Dockets.Justia.com States. The Court ordered further briefing by the United States with respect to Loney's FTCA claims. For the reasons action for reflects the lack of that, administrative set forth below, the Court will dismiss the jurisdiction. for Loney's claim FTCA Loney filed Specifically, claim, with the the the only record pertinent Government sought damages for misconduct with respect to Loney's mail. The United States, for claim however, arising has out not of waived the sovereign loss, miscarriage, transmission of letters or postal matter." I. A. PERTINENT FACTS immunity or "[a]ny negligent 28 U.S.C. § 2680(b) REGARDING LONEY'S FTCA CLAIM The Government's Argioment Loney contends that he is entitled to bring an action under the FTCA Compl. for the 15.)^ "intentional Loney government employees, deliver argues Loney's his mail. that the bases invasion this inter alia, (ECF No. Court 28-2, lacks FTCA claim because, claim of on privacy." the opened his mail at subject inter alia, (Part. grounds that and failed to 2-5.) The United States matter jurisdiction over Loney failed to exhaust ^ The Court corrects the capitalization in the quotations from Loney's submissions. Given the organization to Loney's Particularized attachments thereto, attachment numbering system. the Court assigned by lack of coherent Complaint and the employs the pagination and the Court's CM/ECF docketing his administrative remedies initial Motion to Dismiss, only as required single administrative Prisons ("BOP") during Supp. tort his tort claim term of Mot. Dismiss 4, Loney claim filed with any (citing Ex. Attach. 1 of the The In ECF No, the allegations Government 47.) BOP in then the its Bureau incarceration with The the the of BOP. administrative related "to a personal 2008" and failed to present (Declaration of Cornelia Coll 6).) FTCA. with injury which allegedly occurred on July 23, implicate the the Government noted that Loney filed a (Mem. by argued action. (Id. ("Coll Decl.") that because f 9, Loney's Particularized Complaint failed to raise any tort claim based on a July 23, 2008 injury, requirement that, he had failed to comply with the FTCA's before bringing an FTCA claim, administrative claim with the appropriate he must file an federal agency. (Id. at 4.) B. Loney's Pertinent Administrative Claim By 2014, Memorandum the reflecting Court that administrative ("October Dismiss Ex. Loney (Id.) Opinion 31, 3, listed noted on or claim 2010 at the 2, and that about with Order entered Loney had October the United Administrative ECF No. date of 54.) the 31, In the form Loney complained: States Claim"). accident November submitted 2010, On the on Loney evidence filed Postal (See 26, an Service Resp. Mot. administrative claim, as "August 26, 2010." On and about July 19*^^ and August 25^*^, 2010 F.C.C. Petersburg's Staff and Petersburg, Virginia's U.S.P.S,, as a joint tortfeasor breached their duty to provide prompt, reliable, and efficient service by conunitting acts of fraud and conspiracy to deprive plaintiff of his civil and constitutional rights by not allowing the courts to utilize P.O. box 90043 as a mailable (Id. of had Ex. 3, [sic] address to him. at 2.) In his attachments, disjointed complaints mishandled complained his that See attachment. mail. he (Id. how the (Id. "almost postal misconduct. ^ Loney also about at lost at 3.)'' submits the Loney then made a series staff at 3-5.) [his] In civil particular suit" Additionally, United FCC Petersburg States Loney because of Loney complains Postal Service's denial of his administrative tort claim (Resp. Mot. Dismiss 6, at 1), and the United States Postal Service's denial of request for reconsideration (id. Ex. 5, at 1). ^ Loney's identifies the civil suit as "#3:08CV820." Ex. his (Resp. Mot. Dismiss Ex. 3, at 3.) The Court's docket for the above referenced action, Loney v. Wilder, 3:08CV820 (E.D. Va.) reveals the following: Service returned on to July the 19, Court 2010, an the order United the States Court had Postal sent to Loney at "P.O. Box 90043," (ECF No. 42, at 1); the Postal Service marked the envelope "RETURN TO SENDER," "NOT DELIVERABLE AS ADDRESSED," and "UNABLE TO FORWARD," (j^ at 5); thereafter, by Memorandum Opinion and Order, the Court dismissed that action without prejudice because i t appeared Loney had moved without notifying the Court, (ECF Nos. 43, 44); the Memorandum Opinion and Order also were returned to the Court as undeliverable, (ECF No. 45); on September 13, 2010, Loney requested that the Court reinstate the action because, inter alia, "Petitioner was never transferred simply or changed relocated . . . . P.O. Box numbers F.C.C. from Petersburg's 90043 to 1000," staff (ECF No. 4 9, at 1); by Memorandum Opinion and Order entered October 26, 2010, the Court granted Loney's request and reinstated the action, (ECF Nos. 53, 54); and by Memorandum Opinion and Order entered February 24, 2012, the Court dismissed the action for reasons unrelated to any misdelivery or miscommunication about Loney's mailing address. (ECF Nos. 146-47.) that some of his mail "was returned to [him] without a to why" and opened outside of his presence. also states that mail "Mail Clerk Croomes (Id. tried Inmate Luke Allen witnessed it." In in its Supplemental Memorandum of Law, argues mail Loney's were FTCA claims foreclosed ECF No. In asserted pertaining "because sovereign immunity for 3-4, to [such] the to United claims . at 5.) Loney overcharge my (Id.)^ the United States the handling States ..." reason as has not of his waived (Supp'l Mem. Law 60.) his original complaint in the present action Loney that: On and about July 19*^^ and August 25*^^, 2010 F.C.C. Petersburg's Staff and Petersburg, Virginia's U.S.P.S. . . . breached their duty . . . by not allowing the courts to utilize P.O. Box 90043 as a mailable address to him. Plaintiff's Civil Complaint No. 3:08CV820 was dismissed as a result of this misconduct on August 19, 2010. (Compl. 2, ECF No. 1 (as paginated by CM/ECF).) ^ The allegations in the Particularized Complaint reflect that Mail Clerk Croomes told Loney that i t would cost $10.52 to mail a certified letter. (Part. Compl. SI 6.) Loney insisted that such amount was too much and refused to pay. (Id. ) The next day, Loney returned, and Mail Clerk Copeland only charged Loney $7.68 to send the same letter, which Loney paid. (Id.) As Loney suffered no compensable injury, the Court dismisses as frivolous any claim by Loney suggesting he is entitled to compensation for the attempted overcharging. See 28 U.S.C. § 1915(e) (2). II. ANALYSIS The United States is immune from suit except to the extent i t consents by statute to be sued. U.S. 596, 392, 608 399 (citing United States (1976)). The immunity, sovereign by government. Cir. (1990) Williams 1995). United States v. FTCA acts as permitting v. United Under the FTCA, v. a States, Testan, limited tort suits 50 Palm, F.3d 424 494 U.S. waiver of against 299, 305 the (4th the government consents to "actions for damages against the United States for injuries caused by the tortious within the private U.S.C. conduct of scope of § employment liable under § the transmission 2680(b) or to state employees the extent law." for U.S. Serv., United States v. plaintiff immunity must of out must securing 223 acting that a (citing Id. file F.3d compliance with its terms." the or 28 "the 278 U.S. or Id. her loss, to, 28 exception"). ]" the Kokotis waiver. 117-18 FTCA matter." observe[ Cir. as miscarriage, postal (4th Ill, remains postal government's 275, 444 his bar "scrupulously the Kubrick, of letters (hereinafter, courts requirements Postal sovereign "[a]ny claim arising negligent Furthermore, a agents 1346(b)). inter alia, U.S.C. States their party would be Nevertheless, or United v. 2000) (citing (1979)). Hence, action (citation omitted). "in careful Under the FTCA, over a agency and agency in claim writing . the 785 F.2d United States, 540 to suit. shall . "unless the claimant . 28 been U.S.C. of finally § filing denied 2675(a). an "It by well- administrative claim (citing 123 (4th F.2d 676, that the 679 he order Cir. 1986) (4th Cir. has to the United Kielwien 1976)). properly secure the is 121, claim in to have Federal Henderson v. See Kokotis, According jurisdiction and may not be waived." demonstrate administrative the United States requirement jurisdictional States, court will not have presented the claim to the appropriate his settled that must federal tort suit against shall have first is a Thus, Loney presented Government's v. an consent 223 F.3d at 278. pertinent regulation for FTCA claims, an administrative claim is deemed presented, when duly a Federal agency receives from a claimant, authorized agent or legal representative, executed Standard Form 95 or other his an written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident; and the title or legal capacity of the person signing, and is accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative. 28 C.F.R. must § 14.2(a). provide conduct an the In federal investigation, the administrative agency with which claim, sufficient includes "the a plaintiff information identity of to the claimants Bank v. and the Farmers nature of the Farmers 866 F.2d 276, 277 an Home Admin., claims." State Savs. (8th Cir. 1989) inmate's use (internal citations omitted). The Court notes that Administrative Remedy Program, fails to satisfy administrative States, No. Va. Aug. with the requirement the to the within consequentially, late, Levasseur v. See seq., presenting Ellis v. at *15 n.4 an United (S.D. present administrative claim Loney action October W. the postal the exception. because mail either fails Postal Serv., "[T]he 31, 2010 postal-matter ^injuries arising, in damaged condition, U.S. is filed Loney's complaints in that Administrative exception preserves immunity for arrives FTCA. BOP's 542.10 ^ § for 2013 WL 4679933, only pertinent Administrative Claim. fall C.F.R. the 2013) respect Claim under 5: ll-cv-00096, 30, Here, claim the see 28 of or at directly or to arrive at all or the wrong address.'" 543 F.3d 23, 24 (1st Cir. 2008) ® Additionally, the following statute of limitations governs claims under the FTCA: A tort claim against the United States shall be forever barred unless i t is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action six months after the date of mailing, is begun registered mail, of notice of final denial claim by the agency to which it was presented. 28 U.S.C. § 2401(b). within by certified or of the (quoting Dolan v. U.S. Postal Serv., 546 U.S. 481, 489 (2006)). Loney's complaints that the Government improperly returned mail sent to a post office box and improperly opened his mail falls within the exception. App'x 158, See McCullouqh v. United States, 110 F. {2d Cir. 159 2004) (concluding FTCA claim for invasion of privacy for opening of mail was barred by the postal exception). Accordingly, the Court lacks jurisdiction to entertain an FTCA claim based on these allegations. The granted. Government's Motion to Dismiss (ECF No. 46) will The action will be dismissed for lack of jurisdiction. The Clerk is directed to send a copy of this Memorandum Opinion to Loney and counsel for the United States. I t is so Ordered. /s/ Robert E. Payne Senior United States District Judge Richmond, be Virginia
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