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Moreno-Ortiz v. United States

February 23, 2009


The opinion of the court was delivered by: Laura Taylor Swain, District Judge


On March 21, 2007, Magistrate Judge Debra Freeman issued a Report and Recommendation ("Report") recommending, in response to Defendants' motion to dismiss Plaintiff's Amended Complaint,*fn1 the dismissal of all of Plaintiff's claims except for Plaintiff's Federal Tort Claims Act ("FTCA") claim against the United States for his alleged misclassification as an informant, and that Defendants be directed to respond to Plaintiff's discovery requests in order for Plaintiff to assert Bivens claims against individual defendants, if any. Timely objections to portions of the Report were received from Defendants (Docket Entry No. 34), and Plaintiff filed a response requesting that the Court adopt Judge Freeman's Report in its entirety, without making any objections of his own. (Docket Entry No. 37.)

The Court has reviewed thoroughly Defendants' objections, and has considered de novo all of the points raised. For the following reasons, the Court adopts in part Judge Freeman's recommendations and grants Defendants' motion to dismiss Plaintiff's Amended Complaint with prejudice. Familiarity with the contents of the Report, including the factual background, is presumed.


The following relevant facts alleged in Plaintiff's Amended Complaint or reflected in documents appended by Plaintiff to the Amended Complaint are construed as true for purposes of considering Defendants' motion to dismiss.

Plaintiff asserts in the Amended Complaint that Defendants falsely classified him as an "informant" in prison administrative records, thereby subjecting his life to danger. (Am. Compl. at 4, ¶ 5(B).)*fn2 Plaintiff does not specify when the alleged classification occurred, but instead cites and appends a document, signed and dated by Plaintiff on May 18, 1976, wherein Plaintiff asked the Bureau of Prisons ("BOP") why he was classified as a "Special Offender." The BOP's answer, signed and dated on August 3, 1976, and printed on the same document, responded that Plaintiff was so classified because he "testified against other inmate[]s who [were] in federal institutions." (Id. at 48.) The Amended Complaint also cites and appends a letter from Judge Frank A. Kaufman of the District of Maryland sent to Plaintiff and counsel, dated September 13, 1976, noting that Plaintiff "at no time testified against any other person." (Id. at 46.) Lastly, Plaintiff appends a letter dated January 9, 1990, wherein Plaintiff asserts that when he returned from Colombia (which would have occurred sometime between 1982, when he was deported (id. at 35), and 1985, when he was re-imprisoned in the United States), he was again misclassified on the mistaken belief that he was an informant. (Id. at 41-42.)

On May 5, 2004, Plaintiff filed an administrative tort claim with the BOP with respect to the alleged misclassification(s). (Am. Compl. at 14.)


When reviewing a Report and Recommendation, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(C) (West Supp. 2006). The court must make a de novo determination to the extent that a party makes specific objections to a magistrate's findings. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). To the extent, however, that the party makes only conclusory or general objections, or simply reiterates the original arguments, the Court will review the Report strictly for clear error. See Pearson-Fraser v. Bell Atl., No. 01 Civ. 2343 (WK), 2003 WL 43367, at *1 (S.D.N.Y. Jan. 6, 2003); Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992); Vargas v. Keane, No. 93 Civ. 7852 (MBM), 1994 WL 693885 at *1 (S.D.N.Y. Dec. 12, 1994). Objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate judge's proposal. Camardo, 806 F. Supp. at 381-82.

Defendants' objections assert that: 1) the Report erred in failing to conclude that Plaintiff's May 5, 2004, administrative tort claim was untimely filed, thereby depriving the Court of subject matter jurisdiction over Plaintiff's Federal Tort Claims Act ("FTCA") claim for the alleged informant misclassification; and 2) the Report erred in recommending further discovery to explore possible Bivens claims against unnamed individual defendants.

FTCA Claim - Informant Misclassification

Plaintiff asserts an FTCA claim on the basis that he was falsely described as having testified against other inmates, and as a result suffered from insults, threats and harm from other inmates. This is the only existing claim, as against the United States, that the Report recommends Plaintiff be permitted to pursue. The Report concluded that the complaint in the instant action was timely filed after Plaintiff's corresponding administrative claim was denied, and that the administrative claim adequately presented the informant misclassification issue, but specifically declined to address the question of whether the administrative claim itself had been untimely. The United States argues that Plaintiff cannot carry his burden of pleading and proving timeliness of his administrative claim and that the cause of action must therefore be dismissed for lack of subject matter jurisdiction.

The FTCA provides that a "tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues." 28 U.S.C. § 2401(b) (West 2006). Therefore, unless a plaintiff has first timely exhausted his administrative remedies, the Court has no subject matter jurisdiction of the FTCA claim. McNeil v. United States, 508 U.S. 106, 113 (1993). Accrual of an FTCA claim generally begins at the time the injury or harm is inflicted, or when the plaintiff knows both the existence and cause of his injury. United States v. Kubrick, 444 U.S. 111, 120 (1979); Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998). The burden is on the plaintiff to both plead and prove compliance with the statutory requirements, In re Agent Orange Prod. Liab. Litig., 818 F.2d 210, 214 (2d Cir. 1987), and this requirement applies with equal force to pro se litigants. Adelke v. United States, 355 F.3d 144, 153 (2d Cir. 2004).

In this case, the documents annexed to Plaintiff's Amended Complaint demonstrate that Plaintiff's informant misclassification claim accrued, at the latest, on January 9, 1990, when Plaintiff alleged in a letter to the BOP that he had been misclassified as an informant when he was re-imprisoned upon his return to the United States sometime between 1982 and 1985. (Am. Compl. at 35, 41-42.) Other documents appended to the Amended Complaint, all of which are dated in the year 1976, reflect attempts by Plaintiff to clear his record of any suggestion that he ever testified against other inmates, and therefore appear to describe an even older alleged misclassification. (Id. at 46, 48.) The Amended Complaint ...

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