Branham et al v. Federal Correctional Institution McDowell et al, No. 1:2022cv00437 - Document 36 (S.D.W. Va. 2023)

Court Description: MEMORANDUM OPINION AND ORDER denying as moot 5 MOTION by Federal Bureau of Prisons, Colette S. Peters, United States of America to Dismiss for Plaintiffs' Failure to Comply With Rule 4; granting 28 MOTION by United States of America to Substitute the United States as the Proper Party, as set forth more fully herein. Signed by Senior Judge David A. Faber on 6/13/2023. (cc: counsel of record) (mk)

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Branham et al v. Federal Correctional Institution McDowell et al Doc. 36 Case 1:22-cv-00437 Document 36 Filed 06/13/23 Page 1 of 2 PageID #: 547 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD RODNEY BROADNX, et al., Plaintiffs, v. CIVIL ACTION NO. 1:22-00437 FEDERAL CORRECTIONAL INSTITUTION MCDOWELL, et al., Defendants. MEMORANDUM OPINION AND ORDER Pending before the court are defendants’ motions to: (1) dismiss for plaintiffs’ failure to comply with Rule 4; and (2) substitute the United States as the proper party. See ECF Nos. 5 and 28. In their opposition to the motion to dismiss, plaintiffs demonstrated that they did comply with Rule 4 within the time period allowed for doing so. See ECF No. 12. file a reply to argue otherwise. Defendants did not The motion to dismiss is DENIED as moot. As for the motion to substitute, plaintiffs have filed a motion to amend, seeking leave of the court to file a second amended complaint. See ECF No. 33. In the motion to amend, plaintiffs seek leave of the court to, among other things, substitute the United States of America as a defendant for FCI McDowell, the Federal Bureau of Prisons, and Collette S. Peters, Dockets.Justia.com Case 1:22-cv-00437 Document 36 Filed 06/13/23 Page 2 of 2 PageID #: 548 in her official capacity as Director of the Federal Bureau of Prisons. At least part of plaintiffs claims are filed pursuant to the Federal Tort Claims Act (“FTCA”). The only proper defendant in an FTCA action is the United States of America. See Iodice v. United States, 289 F.3d 270, 273 n.1 (4th Cir. 2002) (acknowledging that, as to FTCA claims against the U.S. Department of Veterans Affairs, “the United States is the only proper defendant”). GRANTED. Therefore, the motion to substitute is See, e.g., Billups v. United States Postal Service, No. 5:19-CV-188-BO, 2019 WL 3822510, at * (E.D.N.C. Aug. 14, 2019); Cox v. U.S. Marshals Service Headquarters, Civil Action Case No. CCB-11-2659, 2011 WL 6000557, at *1 n.1 (D. Md. Nov. 29, 2011) (substituting United States as defendant in lieu of United States Marshals Service because “[t]he United States is the only proper party defendant in actions brought under the Federal Tort Claims Act”). The Clerk is directed to send a copy of this Memorandum Opinion and Order to counsel of record. IT IS SO ORDERED this 13th day of June, 2023. ENTER: David A. Faber Senior United States District Judge 2

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