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Donald P. Wendt v. United States Department of Agriculture Farm Service Agency


May 2, 2012


The opinion of the court was delivered by: David E. Peebles U.S. Magistrate Judge

REPORT, RECOMMENDATION AND ORDER Plaintiff Donald P. Wendt, who is proceeding pro se and seeks leave to proceed in this matter in forma pauperis ("IFP"), has commenced this action against the United States Department of Agriculture ("USDA"), three agencies within the USDA, and fourteen of its employees alleging a host of both tort and breach of contract claims, apparently related to the administration and termination of a contract between plaintiff and the USDA. As relief, plaintiff seeks compensatory and punitive damages in an unspecified amount.

Having afforded plaintiff the deference to which he is entitled as a pro se litigant and liberally construed his pleading, I have nonetheless concluded that although plaintiff's IFP application will be granted, his complaint should be dismissed for lack of subject matter jurisdiction.


It appears that plaintiff's claims arise out of a contract with the USDA relating to the development of a fine hardwood tree forest which provided for "cost sharing reimbursements" to plaintiff upon compliance with certain contractually specified requirements under a "Conservation Plan." See Complaint (Dkt. No. 1) ¶ 20. The specific terms of that agreement and when it was executed are not set forth in plaintiff's complaint. The complaint alleges that the contract term was ten years and that the contract was originally to commence in June 2005. See id. According to plaintiff the contract did not actually begin until October 1, 2006, and was to continue through September 30, 2016. See id. Plaintiff alleges that as a result of the delay in the commencement of the contract he suffered a corresponding lag in receiving reimbursements for costs and labor incurred by him. Id. Plaintiff further claims that during the course of the agreement, defendants failed to respond to his requests for information, failed to inspect his plantings as required, and delayed payment of his reimbursements, which caused him problems in filing his federal income tax returns. Id.

It appears that the parties proceeded under the terms of their agreement and plaintiff received reimbursements for costs until on or about March 10, 2009, when defendants Cronsier, Jones, Arliss, Ameele, Wells, and Mouton, as members of the Wayne County Farm Service Agency Committee, voted to terminate the contract, and failed to provide plaintiff an opportunity to make reparations as required by the Conservation Plan. Complaint (Dkt. No. 1) ¶ 24. Thereafter, the parties engaged in an effort to resolve their dispute, apparently by way of unsuccessful efforts at mediation as well as administrative hearings, up through the issuance of a final order in connection with plaintiff's administrative appeal. Id. at ¶¶ 25-37.

Plaintiff further alleges that beginning in the fall of 2009 defendants began harassing him, claiming that he was indebted to the USDA and/or Commodity Credit Corporation in the amount of $21,912.07, plus interest at a rate of 8.620%, and seized $270.30 from his Social Security check, which was eventually refunded. Complaint (Dkt. No. 1) ¶ 38. In August 2010, Plaintiff filed for bankruptcy protection pursuant to Chapter 13 of the United States Bankruptcy Code. Id. Even after that date, the Commodity Credit Corporation, once again, seized $270.30 from plaintiff's Social Security check. Id.


Plaintiff filed his complaint, accompanied by an application to proceed in forma pauperis , on February 28, 2012. Dkt. Nos. 1 and 2. The complaint alleges twelve causes of action including malfeasance, breach of contract, tortious interference with contract, misrepresentation and consumer fraud, and harassment.


A. In Forma Pauperis Application

As indicated in his IFP application, plaintiff filed a voluntary Chapter 13 bankruptcy petition in the Western District of New York on October 4, 2010. *fn2 In re Wendt , No.2-10-22424-PRW (W.D.N.Y. filed Oct. 4, 2010). That proceeding is still pending.

Based upon a careful review of plaintiff's IFP application, and considering that he is presently in bankruptcy, I have concluded that he has sufficiently established his inability to pay the required filing fee due to his financial circumstances. Plaintiff's request for permission to proceed in forma pauperis in this action will therefore be granted.

B. Standard of Review

Since the court has found that plaintiff meets the financial criteria for commencing this case in forma pauperis , I must next consider the sufficiency of the allegations set forth in his pleading in light of 28 U.S.C. § 1915(e). Section 1915(e) directs that, when a plaintiff seeks to proceed in forma pauperis , "(2) . . . the court shall dismiss the case at any time if the court determines that -- . . . (B) the action . . . (I) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). Thus, the court has a gatekeeping responsibility to determine that a complaint may be properly maintained in this district before it may permit a plaintiff to proceed with an action in forma pauperis . See id.

In deciding whether a complaint states a colorable claim a court must extend a certain measure of deference towards pro se litigants, Nance v. Kelly , 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin , 700 F.2d 37, 41 (1983). There is, nonetheless, an obligation on the part of the court to determine that a claim is not frivolous before permitting a plaintiff to proceed. See Fitzgerald v. First East Seventh St. Tenants Corp. , 221 F.3d 362, 363 (2d Cir. 2000) (district court may dismiss frivolous complaint sua sponte notwithstanding fact the plaintiff has paid statutory filing fee); Wachtler v. Cnty. of Herkimer , 35 F.3d 77, 82 (2d Cir. 1994) (district court has power to dismiss case sua sponte for failure to state a claim).

"Legal frivolity . . . occurs where 'the claim is based on an indisputably meritless legal theory [such as] when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.'" Aguilar v. United States , Nos. 3:99-MC-304, 3:99-MC-408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) (Burns J.) (quoting Livingston v. Adirondack Beverage Co. , 141 F.3d 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams , 490 U.S. 319, 325, 109 S. Ct. 1827, 1831 (1989) and Pino v. Ryan , 49 F.3d. 51, 53 (2d Cir.1995) ("[T]he decision that a complaint is based on an indisputably meritless legal theory, for the purposes of dismissal under section 1915(d), may be based upon a defense that appears on the face of the complaint."). *fn3

When reviewing a complaint under section 1915(e), the court may also look to the Federal Rules of Civil Procedure. Federal Rules of Civil Procedure 8 provides that a pleading that sets forth a claim for relief shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief [.]" Fed.R.Civ.P. 8(a)(2). The purpose of Rule 8 "'is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer [and] prepare an adequate defense.'" Hudson v. Artuz , No. 95 CIV. 4768, 1998 WL 832708, *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland Bank , 162 F.R.D. 15, 16 (N.D.N.Y.1995) (quoting Brown v. Califano , 75 F.R.D. 497, 498 (D.D.C.1977))) (other citation omitted).

A court should not dismiss a complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 129 S.Ct. 1937');">129 S. Ct. 1937, 1949 (2009) (citation omitted). Although the court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly , 550 U.S. at 555, 127 S. Ct.1955). Thus, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id. at 1950 (quoting Fed. Rule Civ. Proc. 8(a)(2)).

Upon careful review of plaintiff's complaint in light of the foregoing standards, I recommend that it be dismissed for several reasons.

C. Analysis of Plaintiff's Complaint

At the outset, plaintiff alleges that jurisdiction is conferred upon the court under 29 U.S.C. § 626(c)(1). That provision, which is part of the Age Discrimination in Employment Act ("ADEA"), appears to have no relevance to this lawsuit. *fn4 Moreover, though providing for a civil action under the ADEA, section 626(c)(1) does not specifically confer subject matter jurisdiction over those claims upon the court.

The subject matter jurisdiction of the federal district courts is limited, and is set forth generally in 28 U.S.C. §§ 1331 and 1332. Under these statutes, federal jurisdiction is available only when a federal question is presented, or when the parties are of diverse citizenship and the amount in question exceeds $75,000. It is well established that the court may raise the question of jurisdiction sua sponte , and that where jurisdiction is lacking, "dismissal is mandatory." United Food & Commercial Workers Union, Local 919, AFL-CIO v. Centermark Prop. Meriden Square, Inc. , 30 F.3d 298, 301 (2d Cir.1994); see also Fed.R.Civ.P. 12(h)(3).

Section 1331 provides that "district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. The existence of a federal question is governed by the "well-pleaded complaint" rule, which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. Id. A well-pleaded complaint presents a federal question where it "establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on a resolution of a substantial question of federal law." Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust , 463 U.S. 1, 9, 103 S. Ct. 2841, 2846 (1983).

Jurisdiction over the United States and its agencies exists only where it has waived its sovereign immunity by statute. Dep't of the Army v. Blue Fox, Inc. , 525 U.S. 255, 260, 119 S. Ct. 687, 690 (1999); Presidential Gardens Assocs. v. United States ex rel. Sec'y of HUD , 175 F.3d 132, 139 (2d Cir. 1999). Under the Tucker Act, 28 U.S.C. § 1491, the United States has waived its sovereign immunity with respect to breach of contract claims. *fn5 Spinale and G & T Terminal Packaging Co., Inc. v. United States Dep't of Agric. , No. 05 Civ. 9294(KMV), 2007 WL 747803, at *2 (S.D.N.Y. 2007). For claims exceeding $10,000.00, however, "the Tucker Act vests exclusive jurisdiction in the Court of Federal Claims." Id. (citing 28 U.S.C. § 1346(a)(2)); see also Brazos Elec. Power Coop. v. United States Dep't Agric. , 144 F.3d 784, 787 (Fed. Cir. 1998). Though the Tucker Act expressly excludes cases sounding in tort from its limited grant of jurisdiction to the Federal Court of Claims, that court does have jurisdiction "'where a tort claim stems from a breach of contract, the cause of action is ultimately one arising in contract, and thus is properly within the exclusive jurisdiction of the [United States] Court of Federal Claims.'" Kenney Orthopedic, LLC v. United States , 88 Fed. Cl. 688, 703-04 (Fed. Cl. Aug. 17, 2009) (quoting Awad v. United States , 301 F.3d 1367, 1372 (Fed. Cir.2002)) and Hall v. United States , 69 Fed. Cl. 51, 57 (Fed. Cl. Oct. 31, 2005) (holding that it is "well established" that where a tort claim arises from a breach of contract, the cause of action is properly within the United States Court of Federal Claims' jurisdiction)).

Here, plaintiff asserts breach of contract, intentional breach of contract, and tortious interference with contract claims. The court's subject matter jurisdiction over plaintiff's contract claims, however, is not evident from the face of the complaint. Though generally demanding compensatory and punitive damages, nowhere does plaintiff's complaint specify the amount of damages claimed. Indeed, plaintiff's complaint fails to identify the terms of his alleged contract with the USDA, it does not clearly identify how the contract was breached, and the alleged injury plaintiff sustained is not readily apparent. Plaintiff does allege that he invested at least $20,980.00 in the development of a hardwood tree forest and that during the 29-month period that the parties performed under the terms of their agreement, he received cost sharing reimbursements in excess of $14,000. Based upon the allegations in his complaint, it thus seems likely that the damages that plaintiff is claiming are in excess of $10,000, and that this court therefore lacks jurisdiction over all of plaintiff's contract claims. Because plaintiff has failed to show that this court has subject matter over his contract claims, I recommend they be dismissed.

Turning to plaintiff's claims for malfeasance, fraud, and misrepresentation, with certain exceptions the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§1346(b), 2671-2680, waives the sovereign immunity of the United States with respect to tort claims. See Williams v. Metro. Det. Ctr., 418 F. Supp. 2d 96, 102 (E.D.N.Y. 2005). By its express term, the FTCA does not apply to "[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract right. . . ." 28 U.S.C. § 2680(h); see also Balfour Land Co., L.P. v. United States , No. 7:08-cv-34, 2009 WL 1796068, at *9 (M.D.Ga. Jun. 22, 2009). Additionally, "[p]rior to bringing an action, the FTCA requires that a claimant file an administrative claim with the appropriate federal agency and that the claim be denied." Id. (citing 28 U.S.C. § 2675(a)). "This requirement is jurisdictional and cannot be waived." Id. (citing Keene Corp. v. United States , 700 F.2d 836, 841 (2d Cir. 1983)); Casaburi v. United States Dep't of Agric. , No. 97-CV-1439, 1998 WL 887278, at * 2 (N.D.N.Y. Dec. 11, 1998) (McCurn, S.J.).

In the first instance, plaintiff does not allege that he first presented a claim to the USDA for the damages he now seeking by way of this lawsuit. In the event that he has failed to do so, the court is precluded from exercising jurisdiction over any of plaintiff's tort claims asserted under the FTCA. *fn6 Dowdy v. Hercules , No. 07-CIV-2488(EVEN)(LB), 2010 WL 169624, at *5 (E.D.N.Y. Jan. 15, 2010). Furthermore, it seems clear that with regard to plaintiff's claims for misrepresentation, fraud, and intentional interference with contract, this court lacks jurisdiction. Spinale and G & T Terminal Packaging , 2007 WL 747803, at *1; Balfour Land Co. , 2009 WL 1796068, at *9-10. For these reasons, I recommend that plaintiff's claims for misrepresentation, fraud, and intentional interference with contract be dismissed with prejudice, and insofar as plaintiff's complaint can be interpreted to allege federal tort claims that are within the court's jurisdiction, that those claims be dismissed for failure to state a cause of action, with leave to replead. *fn7

Additionally, the sovereign immunity of the United States extends to its agencies, and in favor of is officials sued for damages in their official capacities when the essence of the claim involved seeks recovery from the government as the real party in interest. Schein v. United States , 352 F. Supp. 182, 185 (E.D.N.Y. 1972). "The FTCA makes a lawsuit against the United States itself the exclusive remedy for common law tort actions against federal agencies or employees acting on behalf of the government." Dowdy , 2010 WL 169624, at * 4 (citing cases). In other words, only the United States can be sued under the FTCA, and neither its agencies nor its employees are proper defendants. Bazuaye v. United States , No. 06 Civ. 8259(DAB), 2009 WL 210702, at *6 (S.D.N.Y. Jan. 27, 2009) (citing cases). As a result, plaintiff's claims against the USDA, including the Farm Service Agency, Natural Resource Conservation Service and the Commodity Credit Corporation, and those against the individual defendants in their official capacities should also be dismissed for lack of subject matter jurisdiction. *fn8 Dowdy , 2010 WL 169624, at * 4.

D. Leave to Amend

Generally, when a district court dismisses a pro se action sua sponte , the plaintiff should be allowed to amend his or her complaint. See Gomez v. USAA Fed. Savings Bank , 171 F.3d 794, 796 (2d Cir.1999). Affording plaintiff the deference to which he is entitled as a pro se litigant, I cannot conclude with certainty that plaintiff cannot state a claim within this court's jurisdiction under either the Tucker Act or the FTCA. Accordingly, I recommend that in the event his computer is dismissed, plaintiff be permitted to amend his complaint in effort to state plausible breach of contract and federal tort claims against the United States.

In the event that leave to amend is granted and plaintiff chooses to avail himself of that opportunity, he is advised that any such amended complaint, which will supersede and replace in its entirety the previous complaint filed by plaintiff, see Harris v. City of N.Y. , 186 F.3d 243, 249 (2d Cir. 1999) (citing Shields v. Citytrust Bancorp, Inc ., 25 F.3d 1124, 1128 (2d Cir. 1994)); Fed. R. Civ. P. 10(a), must contain a caption that clearly identifies, by name, each individual or entity that plaintiff is suing in the present lawsuit, and must bear the case number assigned to this action. Significantly, the body of plaintiff's complaint must contain sequentially numbered paragraphs containing only one act of misconduct per paragraph. Fed. R. Civ. P. 10(b). I will further recommend that unless plaintiff files such an amended complaint within thirty days from the date of the filing of any decision and order adopting my recommendation in full, his complaint be dismissed without further order of the court.


While plaintiff's complaint includes a relatively detailed recitation of the salient facts, it is difficult to discern from those allegations any basis for plaintiff's claims. Even when broadly construing plaintiff's complaint and affording him the special leniency to which he is entitled as a pro se litigant, the court has not identified a plausible claim within its jurisdiction. Moreover, with respect to plaintiff's claims for misrepresentation, fraud, and intentional interference with contract, as well as those against the named agencies and individual defendants, it is quite apparent that the court lacks subject matter jurisdiction. Nonetheless, at this early juncture, I am unable to conclude with certainty that if given the opportunity plaintiff would not be able to state a viable claim under either the Tucker Act or the FTCA. For all of the foregoing reasons, it is therefore hereby respectfully RECOMMENDED that plaintiff's complaint be DISMISSED in its entirety, with prejudice as to plaintiff's claims for misrepresentation, fraud, and intentional interference with contract under the FTCA, and those against the named agencies and individual defendants, and otherwise with leave to file an amended complaint within thirty days of any decision and order adopting my recommendation in full, and that upon his failure to do so that the clerk dismiss the action without further order of the court.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).

It is hereby ORDERED that plaintiff's application to proceed in forma pauperis (Dkt. No. 2) is GRANTED; and it is further, ORDERED that the clerk of the court serve a copy of this report, recommendation, and order upon the parties in accordance with this court's local rules.

Not Reported in F.Supp.2d, 2007 WL 604936 (N.D.Fla.), 20 Fla. L. Weekly Fed. D 560 (Cite as: 2007 WL 604936 (N.D.Fla.)) administrative expense priority pursuant to 11 U.S.C. § 503 is reviewed under the abuse of discretion standard. "Orders implicating the equitable discretion of the United States District Court, N.D. Florida, bankruptcy court in directing immediate payment of an administrative expense are reviewable for an abuse of Gainesville Division. discretion." In re Colortex Industries, Inc., 19 F.3d 1371, PARK NATIONAL BANK, as successor in interest to 1374 (11th Cir.1994). See also In re Tama Beef Packing, Regency Savings Bank, Appellant, Inc., 290 B.R. 90 (B.A.P. 8th Cir.2003), appeal dismissed, v. 92 Fed. Appx. 368 (8th Cir.2004). A bankruptcy court UNIVERSITY CENTRE HOTEL, INC., Appellee. abuses its discretion when its ruling is founded on an error No. 1:06-cv-00077-MP-AK. of law or on misapplication of the law to the facts. "The question is not how reviewing court would have ruled, but Feb. 22, 2007. whether reasonable person could agree with the Steven M. Berman, Berman PLC, Tampa, FL, for bankruptcy court's decision." In re Eagle-Picher Appellant. Industries, Inc., 285 F.3d 522, 529, 2002 Fed. Appx.

0112P (6th Cir.2002). Because the Bankruptcy Court's Carl Edwin Rude, Jr., C. Edwin Rude PA, Tallahassee, decision is supported by the law and is not an abuse of FL, for Appellee. discretion, it is affirmed.


I. Background

MAURICE M. PAUL, Senior District Judge. This case arose from a transaction on January 20,

*1 This matter is before the Court on appeal, pursuant 2000, when University Centre Hotel, Inc. and Lido Bay to 28 U.S.C. § 158(a), from the final order of the United Resort, LLC, entered into loan agreement with Southern States Bankruptcy Court for the Northern District of Pacific Bank (the predecessor in interest to Regency Florida, Gainesville Division (the "Bankruptcy Court"), Savings Bank and Park National Bank), and executed a denying Regency Savings Bank's ("Regency") application Note for $7,300,000. Both UCH and Lido Bay are for allowance of administrative claim. Appellant Park companies owned and controlled by Anthony Liuzzo. As National Bank ("Park National" or the "Appellant"), as security for the Note, both companies delivered a successor in interest to Regency, appeals the Order of the mortgage agreement to the Lender on property throughout Bankruptcy Court denying its Motion to Assess Legal Florida, as well as an assignment of rents. Finally, Fees and Costs against University Centre Hotel Inc. Anthony Liuzzo, owner of both companies, executed an ("UCH" or the "Debtor") and its Application for unconditional Guarantee for the Note. Both the Note and Allowance of Administrative Claim pursuant to 11 U.S.C. the Guarantee contained contractual provisions for the § 503(b)(1)(A). Oral arguments on this matter were heard recovery of prevailing party attorney's fees and costs. on October 19, 2006. After UCH initially defaulted on the loan, it filed its Because this Court functions as an appellate court in voluntary Chapter 11 petition on October 18, 2002. Before reviewing the decision of the Bankruptcy Court, three the Note matured, Southern Pacific Bank stipulated with standards of review apply. First, because no independent UCH to pay the default interest at the rate of 25% percent fact finding occurs at the appellate level, the Bankruptcy per annum in exchange for a pay-down of $3,000,000. On Court's factual findings are reviewed under the clearly February 1, 2003, the Note matured, and UCH and Luizzo erroneous standard. Second, all determinations of law by defaulted by failing to pay their obligations under the the Bankruptcy Court are reviewed de novo. Finally, the Note. After the property in Gainesville that secured the Bankruptcy Court's decision whether to award Note was sold to Shands Healthcare, leaving a deficit in state court's judgment for money damages "is only against the loan, Regency, which had acquired the Note, filed an Anthony Liuzzo, not the debtor in this case." Id. Because action in the Circuit Court of the Eighth Judicial Circuit Mr. Liuzzo, as guarantor, had posted a bond to satisfy the against Luizzo as guarantor for his refusal to pay the full amount owed while the case was on appeal, the deficiency. The Debtors, UCH and Lido Bay, were Bankruptcy Court saw no reason to treat Regency's permitted by the Bankruptcy Court to intervene in this contractually-owed attorney's fees as administrative state court action to pursue a counterclaim against expenses, which would give Regency first priority over Regency. other creditors.

*2 The counterclaim against Regency sought in Since the Bankruptcy Court's order is rather short, the excess of $20,000,000 for usury, civil remedies for record helps explain many of the issues reflected in the criminal practices act violation, tortious interference, order. During the hearing before the Bankruptcy Court on abuse of process, and breach of fiduciary duty. The state the Administrative Claim Application, the court was court found in favor of Regency on the breach of troubled by several aspects of the treating the attorney's guarantee and found against the Debtors and Guarantor on fees as administrative expenses. First, the Bankruptcy each counterclaim. This decision is currently on appeal to Court was concerned that the amount that Regency sought the First District Court of Appeal. The state court decision to collect as attorney's fees from UCH-$316,002.58-was found the amount of money owed Regency was not related solely to UCH's counterclaim, as two other $330,805.42 for interest and late fees, $149,506.59 for defendants had also pursued the same counterclaim. "How legal fees prior to June 20, 2003, and $630,022.76 for much of this relates just to the counterclaim by the debtor? legal fees from July 1, 2003 to December 29, 2005. The ... You're clearly not entitled to $316,000, but you came in decision then stated: "By virtue of the Guarantee, Anthony asking for it." Doc. 17 at 11. Second, the Bankruptcy Luizzo owes the above sums to Plaintiff. Therefore, it is Court expressed concern that Regency was trying to hereby ORDERED AND ADJUDGED that Plaintiff collect its fees from UCH even though a bond had been Regency Savings Bank recover from Defendant Anthony posted by Mr. Luizzo, the initiator of the counterclaim that Luizzo ... the sum of $1,110,334.77." Doc. 10, ex. # 6 at UCH joined. "[I]f you collect from Mr. Luizzo, he's all 11. you're getting it from. If you take an administrative expense from this estate, you've gutted whatever's left to

II. The Bankruptcy

Court's Order pay any creditors of this estate. Why should the creditors of this estate completely fund the liability of Mr. Luizzo

After the state court entered judgment, Regency filed for attorney's fees?" Id. at 13. its Motion to Assess Legal Fees and Costs and Application for Allowance of Administrative Claim with the *3 Finally, the Bankruptcy Court viewed UCH's role Bankruptcy Court on January 11, 2006. The in the counterclaim as different than Mr. Luizzo and Lido Administrative Claim Application requested fees to be Bay: "[I]t seems the debtor was a kind of me too, tag assessed against UCH in the amount of $316,002.58, and along, just so the issues that were raised by Luizzo and also requested that such fees be treated as an Lido Bay in the state court could also be binding ... and administrative expense of the Debtor pursuant to 11 the debtor was tagging along just to get whatever benefits U.S.C. § 503 because the fees were incurred as a result of or at least a final adjudication." Id. at 20. This raised the Debtor's unsuccessful pursuit of post-petition problems in allocating the state court judgment between litigation. The Bankruptcy Court denied Regency's the three parties. "What additional expenses were the Administrative Claim Application, stating that: "Since result of the debtor's actions? ... And I have absolutely no [the] State Court did not award attorney's fees against the way of coming up with that." Id. at 38. At the end of the debtor for prosecution of the action, they are not an hearing, the Bankruptcy Court seemed concerned at obligation of the debtor estate and accordingly will not be Regency attempting to collect from UCH when it had a allowed [as] an administrative expense of this estate." secured bond for the entire amount owed: "Why do we Doc. 10, ex. # 8 at 3. The basis for this denial was that the keep on coming back here and arguing over what little is left in this estate when you have a bond to recover does not apply to actions brought by the debtor. "[A]s the everything you're owed? ... My job is to watch over the plain language of the statute suggests, and as no less than creditors of this estate. And the bank is here trying to suck six circuits have concluded, the Code's automatic stay every dollar there is out of this estate." Id. at 44. does not apply to judicial proceedings, such as this suit, that were initiated by the debtor." Brown v. Armstrong,

III. Review of the Bankruptcy

Court's Decision 949 F.2d 1007, 1009-10 (8th Cir.1991). In the instant case, because the Appellee intervened in the state court

The central issue on appeal is whether the Bankruptcy proceeding to pursue a counterclaim against the Appellant, Court erred in finding that Regency was not entitled to an the action was not "against the debtor." "[W]hether an administrative expense claim for its legal fees and costs action is 'against the debtor' is determined by examining incurred by virtue of UCH's unsuccessful post-petition the debtor's status at the time proceedings were initiated." pursuit of a counterclaim in a state court action against Ostano Commerzanstalt v.. Telewide Systems, Inc., 790 Regency, pursuant to a pre-petition contract between UCH F.2d 206, 207 (2d Cir.1986). and Regency with a prevailing party fee and cost provision. *4 Furthermore, any award of attorney's fees against

A. Automatic Stay Under 11 U.S.C. § 362(a) the Appellee by the state court would most likely not be considered acts to obtain possession of or exercise control

Park National's chief argument on appeal is that the over "property of the estate" under § 362(a)(3). Judge Bankruptcy Court erred when it based its decision on the Posner states: lack of a state-court award of fees because such an award would violate the automatic stay provision of the Code. [T]he automatic stay is inapplicable to suits by the There is no legal support for the position taken by the bankrupt ("debtor," as he is now called). This appears Bankruptcy Court to wit: that the Bankruptcy Court from the statutory language, which refers to actions somehow cannot adjudicate the entitlement to "against the debtor," 11 U.S.C. § 362(a)(1), and to acts administrative expense priority unless the tribunal to obtain possession of or exercise control over handling the underlying litigation enters a judgment for "property of the estate," § 362(a)(3).... There is, in fees and costs against the Debtor. Such a proposition contrast, no policy of preventing persons whom the would seem to run counter to the imposition of the bankrupt has sued from protecting their legal rights. automatic stay which precludes the pursuit, litigation True, the bankrupt's cause of action is an asset of the and award of a claim for relief as against a Debtor in estate; but as the defendant in the bankrupt's suit is not, bankruptcy whether the claim arises from a pre-petition by opposing that suit, seeking to take possession of it, claim or the claim would ultimately be asserted against subsection (a)(3) is no more applicable than (a)(1) is. the Debtor or property of the Debtor.

Martin-Trigona v. Champion Federal Sav. and Loan

Doc. 10 at 12-13. Appellant states that both § Ass'n, 892 F.2d 575, 577 (7th Cir.1989). Extending this 362(a)(1) and (a)(3) would prevent the state court from reasoning, because a person sued by a debtor is merely awarding attorney's fees against UCH, and therefore the protecting their legal rights by opposing the lawsuit, there Bankruptcy Court was the only forum to decide any is no act to take possession of the debtor's property. Any entitlement to the fees. award of fees by a state court would be incident to this protection of rights.

Filing a petition for bankruptcy automatically stays "the commencement or continuation ... of a judicial, Moreover, the cases cited by Park National itself administrative, or other action or proceeding against the contradict its position that the state court somehow could debtor." 11 U.S.C. § 362(a)(1) (emphasis added). As the not award attorney's fee. See In re Property Management Appellee, UCH, points out, neither the state court a n d In vestm en ts, In c ., 9 1 B .R . 1 7 0 , 1 7 1 judgment nor the Bankruptcy Court's decision ever (Bkrtcy.M.D.Fla.1988) ("At the conclusion of the Circuit mentions the issue of the automatic stay because the Code Court trial, the jury returned a verdict in favor of Johnson the preservation of a bankrupt business, such as rent or Blakely and judgment was entered against [the Debtor] compensation for ongoing, post-petition operations. This PMI. The judgment included costs for attorney's fees and encourages parties to conduct business with a post-petition expenses."); see also In re G.I.C. Government Securities, debtor because such administrative claims are accorded Inc., 121 B.R. 647, 649 (Bkrtcy.M . D.Fla.1990) (Bill of the first level of priority and are paid in full before claims Costs against the Debtor considered by the District Court). in a lower category. The Appellant states that because the By engaging in post-petition litigation, UCH subjected Appellee sought $20 million, the litigation was seeking to itself to the risk of paying prevailing party fees. benefit the estate and therefore its costs should be allowed as administrative expenses.

It appears that the state court, realizing who would ultimately foot the bill anyway, awarded fees against the The use of the word "including" in § 503(b) has guarantor and owner, rather than against his bankrupt allowed courts to grant administrative expense status to businesses. The decision never mentions any issue of an expenditures not listed as one of the specific items in the automatic stay as the reason for this award, and the statute, such as attorney's fees. Moreover, use of the word Bankruptcy Court merely decided that because this "shall" connotes a mandatory intent. In re Celotex, 227 decision did not create any obligation on the Debtor, no F.3d 1336, 1338 (11th Cir.2000). However, other courts entitlement to fees exists. As the state case is now on have found that the administrative expense provision must appeal to the First District Court of Appeal, that is where be narrowly construed, as conflicting with general the issue of whether UCH ought to have been included in presumption that all of a debtor's limited resources will be the judgment should be resolved. Therefore, the equally distributed among its creditors. See In re Rose, Bankruptcy Court's decision not to award fees because no 347 B.R. 284 (Bankr.S.D.Ohio.2006), In re Carco judgment debt exists is not in error. Electronics, 346 B.R. 377 (Bankr.W.D.Pa., 2006).

B. Administrative Claims Under 11 U.S.C. § Under the Bankruptcy Code, only claims arising from However, the Supreme Court case of Reading Co. v. The second argument the Appellant raises is that the Brown, 391 U.S. 471 (1968), greatly expanded the fees and costs it incurred in defending the Debtor's concept of "transaction." In Reading, the Court counterclaims should be allowed as administrative determined that an award of tort damages to victims of a expenses. The allowance of administrative expense claims fire caused by the Chapter 11 receiver's negligence was is governed by 11 U.S.C. § 503, with the subsection entitled to administrative expense priority, despite the fact relevant to this case being 11 U.S.C. § 503(b)(1)(A), that victims did not transact with the receiver, nor did the which states: estate benefit from the event. The Court held that the tort 503(b)(1)(A) post-petition transactions may be granted such priority.

*5 (b) After notice and a hearing, there shall be allowed claims arising post-petition were "actual and necessary administrative expenses, other than claims allowed expenses" of preserving the estate because the statutory under section 502(f) of this title, including- objective of the Code was "fairness to all persons having claims against the insolvent." Id. at 477, 482, 485. This (1)(A) the actual, necessary costs and expenses of case can be read as suggesting that involuntary creditors preserving the estate, including wages, salaries, or of a debtor who have their loss thrust upon them should commissions for services rendered after the have administrative priority out of fairness, despite the commencement of the case.... plain language of the Code.

In order for an expense to be allowed as an 1. Preserving the Estate administrative claim, it must be actual and necessary to the preservation of the debtor's estate and must have been Although greatly expanding the language of the Code, incurred in an effort to benefit the estate as a whole. the Reading decision reflects the core concern of § Section 503 gives priority to creditors who incur costs in 503-equity-with the focus directed on the care and preservation of estate. This concept of "fairness" The decision in Reading, however, would allow such permeates the case law dealing with administrative expenses to be treated as administrative claims if in the expenses, as such expenses are dealt with on a interest of fairness. The Appellant cites two Bankruptcy case-by-case basis. "The central question in determining Court decisions from Judge Paskay that interpreted whether a claim is granted administrative expense priority Reading to allow prevailing party fees as administrative is whether the third party should be paid at the expense of expenses: the debtor's existing unsecured creditors." In re Ybarra, 424 F.3d 1018, 1025 (9th Cir.2005). The focus when There is no question that the suit instituted by the deciding whether to allow an administrative expense claim Trustee against E.F. Hutton was an attempt to benefit is on preventing unjust enrichment of the debtor, and not and preserve a property of the estate. But for the suit on compensating a creditor for its loss. commenced by the Trustee, E.F. Hutton would not have

*6 Therefore, courts look to any actual benefit to the incurred these costs. Therefore, this Court is satisfied estate, rather than to any loss sustained by the creditor. In that these costs are properly chargeable against the re Enron Corp., 279 B.R. 695 (Bankr.S.D.N.Y.2002). The estate as costs of administration. The fact that the Eleventh Circuit has interpreted § 503(b) to require not Trustee was not ultimately successful in the suit against only that the expense be "actual" and "necessary," but also E.F. Hutton does not change this result. that there be a concrete benefit to the debtor's estate. See In re Subscription Television of Greater Atlanta, 789 F.2d In re G.I.C. Government Securities, Inc., 121 B.R. 1530 (11th Cir.1986). It is not enough that the incurring of 647, 649 (Bkrtcy.M.D.Fla.1990), see also, In re Property an expense secured a potential benefit or maintained right Management and Investments, Inc., 91 B.R. 170, 172 to obtain a future benefit for estate, if estate did not (Bkrtcy.M.D.Fla.1988). This views the party opposing the actually make beneficial use of the value received in debtor as an unwilling creditor, much like the tort victims exchange for incurring the expense. In re Right Time in Reading, with equity requiring administrative priority Foods, Inc., 262 B.R. 882, 884 (Bankr.M.D.Fla.2001). for the legal fees incurred in opposing the debtor's attempt "Claims arising under § 503(b)(1)(A) are equitable in to benefit the estate. In the instant case, the Bankruptcy nature and thus are valued by the amount of post-petition Court found that equity did not require treating the benefit the claimant provides to the estate and not attorney's fees incurred by Regency as an administrative necessarily according to the contract terms underlying the expense. Because the record reflects that Regency's claim." In re CM Holdings, Inc., 264 B.R. 141 expenses are secured in full by a bond, and because the (Bankr.D.Del.2000). amount sought to be recovered from UCH was attributable to two other parties, a reasonable person could agree with In the instant case, the Appellant states that because the Bankruptcy Court's decision. Therefore, the the Debtor pursued a $20 million counterclaim, the Debtor Bankruptcy Court did not abuse its discretion in denying sought to benefit the estate, and therefore the fees incurred Park National's administrative claim. opposing the claim should be allowed as administrative expenses. The concern for administrative expenses is the 2. Pre-petition versus Post-petition Transaction benefit the claimant provides to the estate, not what benefit a debtor seeks. Regency incurred the fees not to *7 In order for a claim to be given administrative preserve or benefit the estate, but to preserve its own priority under 11 U.S.C. § 503(b)(1)(A), "the actual, interest in the underlying note. "Generally, a creditor's necessary costs and expenses of preserving the estate" legal fees are not allowable as an administrative expense must be "rendered after the commencement of the case." claim unless the creditor can demonstrate that the legal (emphasis added). This is central idea of an administrative services provided a benefit to the estate ." In re Sports expense-encouraging parties to do business with a debtor Shinko (Florida) Co., Ltd., 333 B.R. 483, 499 in bankruptcy proceedings by giving priority to expenses (Bkrtcy.M.D.Fla., 2005). incurred post-petition. The central argument of UCH, and what Appellant Park National calls a "new argument," is that post-petition legal fees owed by virtue of a pre-petition contract are not entitled to administration In re New Power Co., 313 B.R. 496, 506 priority since they are pre-petition expenses. (Bkrtcy.N.D.Ga.2004). Although not a basis of the

The case law of other circuits appear to support the Bankruptcy Court's decision, because the record supports position taken by UCH. See In re Hemingway Transport, the conclusion that the pre-petition contract alone would Inc., 954 F.2d 1, 5-6 (1st Cir.1992) (holding that attorneys' not justify treating the post-petition attorney's fees as fee claim of prevailing defendant incurred in defending administrative expenses, this provides an independent against Chapter 7 trustee's post-petition action was not ground for affirming the judgment of the Bankruptcy entitled to priority payment as the right to attorney fees Court. See Bustamante v. Cueva (In re Cueva), 371 F.3d arose from executed pre-petition contract, and 232, 236 (5th Cir.2004) (Finding that a court may affirm post-petition action did not benefit estate.); Matter of a bankruptcy court's decision if there are any grounds in Jartran, 732 F.2d 584 (7th Cir.1984) (holding that the record to support the judgment, even if those grounds pre-petition contracts do not trigger administrative were not relied upon by the courts below.) expense priority when the debtor's liability was fixed and irrevocable at the time of filing); In re Abercrombie, 139 IV. Conclusion F.3d 755 (9th Cir.1998) (holding that attorneys' fees awarded post-petition in accordance with the debtor's *8 The Bankruptcy Court did not abuse its discretion pre-petition contract is not a claim arising out of a by refusing to accord administrative priority to prevailing post-petition transaction). party fees awarded against Mr. Luizzo but not against the

Debtor. Further, the Bankruptcy Court did not misapply

Under all these cases, the focus is on whether the the law, because it never suggested that it could not award contract giving rise to the claim was entered into before or fees as an administrative expense, but rather that it would after the bankruptcy petition. This is because not since they were not an obligation of the estate. This "[p]ostpetition contracts may qualify for administrative was a decision by the Bankruptcy Court that equity did not expense priority, but costs and expenses arising out of necessitate treating the expenses incurred by Regency as prepetition contracts are treated under the Bankruptcy administrative expenses, and because these expenses were Code as nonprioritized unsecured claims." Id. at 757. secured by a bond for the entire amount, this decision was Under these cases, the duty to pay prevailing party fees not unreasonable. Therefore, the Bankruptcy Court's was incurred pre-petition, and served as consideration for decision denying administrative expense priority for the contract. The fact that the contingency triggering this Regency's legal fees and costs is affirmed. Accordingly, it duty occurred post-petition does not mean that attorney's is hereby fees should receive administrative priority.


Although no Eleventh Circuit authority exists, The Order of the Bankruptcy Court denying Regency bankruptcy courts in this circuit have followed the Savings Bank's motion to compel University Centre reasoning of the other circuits: Hotel Inc. to pay attorney's fees and costs as administrative expenses pursuant to 11 U.S.C. § Assuming that the Debtors had an obligation under the 503(b)(1)(A) is affirmed. [agreement] to reimburse APX for attorneys' fees, that obligation would have been a pre-petition obligation, DONE AND ORDERED this 22nd day of February, and ... the fact that the fees were incurred during the 2007 post-petition period does not elevate that obligation to the status of an administrative expense. APX can point N.D.Fla.,2007. to no post-petition transaction between the Debtors and APX that would entitle APX to payment of its attorneys' Park Nat. Bank v. University Centre Hotel, Inc. fees. Not Reported in F.Supp.2d, 2007 WL 604936 (N.D.Fla.), 20 Fla. L. Weekly Fed. D 560 2034--38 Main St., No. 5:90--cv--546(EBB) (pending); see also United States v. One Parcel Of Property Located At 414 Kings Hwy., No. Only the Westlaw citation is currently available. 5:91--cv--158(EBB) (closed).

United States District Court, D. Connecticut.

Now Aguilar seeks to take the offensive by filing Francisco AGUILAR, Plaintiff, these purported claims against the government, and v. serving the current property owners as well as the UNITED STATES OF AMERICA, Defendant. Assistant United States Attorney who is prosecuting the Nos. 3:99--MC--304 (EBB), 3:99--MC--408 (EBB). related forfeiture cases. This court denied without prejudice Aguilar's initial complaint, which was Nov. 8, 1999. erroneously captioned "United States v. One Parcel Of Dismissal of Plaintiff's Complaints Property Located At 414 Kings Hwy.," one of the cases already docketed and then pending. See Order of June 15, BURNS, Senior J. 1999. Upon refiling an amended complaint (the "Amended *1 Francisco Aguilar, pro se, seeks leave to proceed Complaint") with the appropriate caption, Aguilar also in forma pauperis ("IFP") to press two meritless filed a second complaint (the "Second Complaint"), complaints against the government, which is prosecuting seeking the same relief and asserting essentially the same related civil forfeiture actions against his properties. claims against the government for bringing the other three Although Aguilar is otherwise financially eligible, the forfeiture cases. The clerk returned these pleadings court dismisses these complaints sua sponte pursuant to 28 because Aguilar failed to complete the IFP forms. See U.S.C. § 1915(e)(2)(B) because the purported claims are Order of August 25, 1999. After Aguilar cured these frivolous, baseless and irremediable. pleading deficiencies, miscellaneous docket numbers were Background assigned to the complaints.

Would-be plaintiff Aguilar is no stranger to this court. In Aguilar's Amended Complaint-the one originally He is currently serving a forty-year sentence for drug filed against his own property at 414 Kings trafficking at the federal penitentiary in Leavenworth, Highway-Aguilar seeks return of the property, Kansas. See United States v. Tracy, 12 F.3d 1186, 1189 compensatory damages and $100,000,000 in punitive (2d Cir.1993) (affirming conviction and sentence). In damages "to deter the United States of America from connection with his conviction for narcotics offenses, the committing a similar Abuse of Power." Aguilar pleads his government filed civil forfeiture actions pursuant to 21 case in four "Articles," asserting sundry state and federal U.S.C. § 881(a) in 1990 and 1991 against four of Aguilar's "constitutional" claims, including conversion, false Connecticut properties, which have since been sold. With pretenses, mail fraud, and breach of fiduciary duty. The the help of CJA-appointed counsel, Aguilar has vigorously Amended Complaint also suggests an allegation that the defended each of these four actions, three of which remain government falsified and deliberately omitted known pending before this court, and are scheduled for trial in material facts from its probable cause affidavit in January 2000.FN1 "disregard" of 19 U.S.C. § 1615, the statute outlining the FN1. See United States v. One Parcel Of burden of proof in administrative forfeiture proceedings. Property Located At 2030--32 Main St., No. 5:90--cv--544(EBB) (pending); United States v. The Second Complaint-the one related to the One Parcel Of Property Located At 8 Drumlin government's seizure of the other three properties-seeks Rd., No. 5:90--cv--545 (EBB) (pending); United similar equitable and monetary relief, including return of States v. One Parcel Of Property Located At the properties, compensation for "suffering," "usurpation," and citation omitted); see also Tapia--Ortiz v. Winter, 185 denial of his use and enjoyment of the properties and lost F.3d 8, 11 (2d Cir.1999) (upholding dismissal as frivolous rents, and one billion dollars in punitive damages. where "[t]he complaint's conclusory, vague, and general Liberally construed, the Second Complaint simply repeats allegations ... d[id] not [ ] suffice to establish" plaintiff's the claims of the Amended Complaint except for one claims). additional allegation: that Aguilar was entitled to, and did In addition to frivolous claims, the court must also not receive, a hearing prior to the seizure and sale of his dismiss any malicious claims, i.e., where "[t]he manifest properties. purpose of appellant's complaint [i]s not to rectify any cognizable harm, but only to harass and disparage." Discussion Tapia--Ortiz, 185 F.3d at 11.

A. § 1915(e)(2)(B) Standards 2. Failure To State A Claim

*2 The Prisoner Litigation Reform Act ("PLRA") An IFP action must also be dismissed sua sponte if it mandates dismissal of an IFP action if it: "(i) is frivolous fails to state a claim on which relief may be granted. See or malicious; (ii) fails to state a claim on which relief may 28 U.S.C. § 1915(e)(2)(B)(ii); see also Star v. Burlington be granted; or (iii) seeks monetary relief against a Police Dep't, 189 F.3d 462, 1999 W L 710235 (2d defendant who is immune from such relief." 28 U.S.C. § Cir.1999) (summarily affirming dismissal made pursuant 1915(e)(2)(B) (as amended in 1996). Prior to the adoption to § 1915(e)(2)(B)(ii) of purported due process challenge of the PLRA, district courts had discretion to dismiss that failed to state a claim). As in a motion to dismiss frivolous actions; now they are required to do so. See under Fed.R.Civ.P. 12(b)(6), a § 1915(e)(2)(B)(ii) Pub.L. 104--134, 110 Stat. 1321 (1996) (making dismissal dismissal is warranted only if "it is clear that no relief of frivolous actions mandatory, and also requiring could be granted under any set of facts that could be dismissal for failing to state a claim or seeking damages proved consistent with the allegations." Hishon v. King & from an immune defendant). Because Aguilar's claims Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 qualify for dismissal under all three of these prongs, the L.Ed.2d. 59 (1984). standards for each are set out in turn. *3 Pro se complaints, such as these, however, must be read broadly, see Haines v. Kerner, 404 U.S. 519, 520--21, 1. Frivolous or Malicious 92 S.Ct. 594, 595--96, 30 L.Ed.2d 652 (1972) (per curiam), and may not be dismissed "simply because the A complaint is frivolous if "it lacks an arguable basis court finds the plaintiff's allegations unlikely." Denton v. either in law or in fact." Neitzke v. Williams, 490 U.S. 319, Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 1733, 118 325, 109 S.Ct. 1827, 1831--32, 104 L.Ed.2d 338 (1989) L.Ed.2d 340 (1982) (construing pre-PLRA complaint as (interpreting § 1915(d), later redesignated as § frivolous). Therefore, 1915(e)(2)(B)(i), to preclude "not only the inarguable legal conclusion, but also the fanciful factual allegation"). a pro se plaintiff who is proceeding in forma pauperis Factual frivolity occurs where "the 'factual contentions are should be afforded the same opportunity as a pro se clearly baseless,' such as when allegations are the product fee-paid plaintiff to amend his complaint prior to its of delusion or fantasy." Livingston v. Adirondack dismissal for failure to state a claim [under § Beverage Co., 141 F.3d 434, 437 (2d Cir.1998) (quoting 1915(e)(2)(B)(ii) ], unless the court can rule out any Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833). Legal possibility, however unlikely it might be, that an frivolity, by contrast, occurs where "the claim is based on amended complaint would succeed in stating a claim. an indisputably meritless legal theory [such as] when either the claim lacks an arguable basis in law, or a Gomez v. USAA Federal Sav. Bank, 171 F.3d 794, dispositive defense clearly exists on the face of the 796 (2d Cir.1999) (per curiam) (vacating § complaint." Livingston, 141 F.3d at 327 (internal quotes 1915(e)(2)(B)(ii) dismissal where "the district court did not give th[e] pro se litigant an opportunity to amend his complaint, and because [the court] cannot rule out the 1. Probable Cause possibility that such an amendment will result in a claim being successfully pleaded"). *4 The one potentially cogent legal claim that can be derived from a liberal reading of the Amended Complaint 3. Relief Against An Immune Defendant has already been conclusively decided by the court and is therefore barred from relitigation. See United States v. Dismissal of an IFP case is also required where One Parcel Of Property Located At 414 Kings Hwy., No. plaintiff seeks monetary damages against a defendant who 5:91--cv--158 (denying lack-of-probable-cause argument is immune from such relief. See 28 U.S.C. § in motion to dismiss [Doc. No. 64] in 1993, and in 1915(e)(2)(B)(iii); see also, Spencer v. Doe, 139 F.3d motions for summary judgment [Doc. Nos. 55, 96] in 107, 111 (2d Cir.1998) (affirming dismissal pursuant to § 1996). Here again, Aguilar reiterates his allegation that the 1915(e)(2)(B)(iii) of official-capacity claims in § 1983 government's affidavit in support of probable cause was civil rights action because "the Eleventh Amendment tainted because it failed to disclose that the 414 Kings immunizes state officials sued for damages in their official Highway property was subject to a mortgage held by capacity"). Here, even if Aguilar's claims had any merit, People's Bank, and therefore could not have been the complaints must be dismissed nevertheless because purchased with funds traceable to drug sales. each seeks monetary damages from the United States, After the government voluntarily dismissed that which is immune from such relief. See Presidential forfeiture action, this court initially ordered the sale Gardens Assocs. v. United States, 175 F.3d 132, 139 (2d proceeds of the property disbursed to Aguilar. See id., Cir.1999) (noting "[t]he sovereign immunity of the United Order of Oct. 25, 1996 [Doc. No. 151]. The bank States may only be waived by federal statute"). appealed the order and, during the pendency of the appeal, B. Dismissal Standards Applied secured a default judgment in state court against Aguilar.

See People's Bank v. Aguilar, No. CV--96--0337761--S

Aguilar's complaints are devoid of any arguable basis (Conn.Super.Ct.1997). On the Bank's appeal from this in law or fact. Most of his factual allegations-to the court's disbursal of proceeds to Aguilar, the Second extent they are even comprehensible-are conclusory, Circuit reversed and remanded. See United States v. One vague and baseless. For example, he purports to allege: Parcel Of Property Located At 414 Kings Hwy., 128 F.3d "The United States of America has misused its power 125, 128 (2d Cir.1997). On remand, in accordance with against the Francisco Aguilar's Intangible Rights." the Second Circuit mandate, this court disbursed the (Amended Complaint at 2); and "The United States of proceeds from the sale of 414 Kings Highway to the bank America overpassed its bound of its authority and make a in partial satisfaction of Aguilar's debt owed on the tyrannic use of its powers." (Second Complaint at 4). Even defaulted mortgage. See United States v. One Parcel Of the Second Circuit has recognized Aguilar's prior Property Located At 414 Kings Hwy., No. 5:91--cv--158, handiwork to be "so indisputably lacking in merit as to be 1999 WL 301704 (D.Conn. May 11, 1999). frivolous within the meaning of 28 U.S.C. § 1915(e)." See United States v. One Parcel Of Property Located At 414 B ecause the lack-of-pro b ab le-cause claim, Kings Hwy., No. 97--6004 (2d Cir. April 23, 1997) perfunctorily adverted to in Aguilar's otherwise meritless (mandate [Doc. No. 167] dismissing appeal of Aguilar's Amended Complaint, has already been addressed in the motion to enjoin state default proceedings). 414 Kings Highway forfeiture case, the court will not

Only two allegations asserted by Aguilar are even consider it again. As such, it must be dismissed because it arguably actionable: the lack-of-probable-cause argument fails to state a claim for which this court could grant in the Amended Complaint and the due process claim in further relief. the Second Complaint. Both of these, however, must be dismissed because each fails to state a claim for which 2. Due Process relief may be granted.

In addition to his now-stale probable cause allegation about 414 Kings Highway, Aguilar claims in the Second Rule E(9)(b) of the Maritime Rules permits the Complaint that he was wrongfully denied a hearing prior interlocutory sale of seized property if such property to the seizure and sale of the other three properties.

However, the constitutional right to a preseizure hearing is perishable, or liable to deterioration, decay, or injury in civil forfeiture proceedings was not recognized until by being detained in custody pending the action, or if 1993, two years after the seizure in this case. See United the expenses of keeping the property is [sic] excessive States v. James Daniel Good Real Property, 510 U.S. 43, or disproportionate, or if there is unreasonable delay in 114 S.Ct. 492, 126 L.Ed.2d 490 (1993) (holding that Fifth securing the release of property....

Amendment Due Process protections apply to civil forfeiture proceedings against real property). Even if such Supplemental Rule for Certain Admiralty and due process protections applied retroactively, Aguilar's Maritime Claims E(9)(b). Section 1612(a) of the customs challenge to the sale of the properties would lack merit laws, by contrast, provides for seizure and summary sale because exigent circumstances required their interlocutory whenever it appears that such property sale.

In civil forfeiture proceedings "[u]nless exigent is liable to perish or to waste or to be greatly reduced in circumstances are present, the Due Process Clause value by keeping, or that the expense of keeping the requires the Government to afford notice and a meaningful same is disproportionate to the value thereof.... opportunity to be heard before seizing real property 19 U.S.C. § 1612(a) (1999). subject to civil forfeiture." Id. at 62, 114 S.Ct. at 505; see also United States v. One Parcel Of Property Located At Here, the Chief Deputy United States Marshal 194 Quaker Farms Rd., 85 F.3d 985, 988 (2d Cir.1996) certified that the properties located at both 2030--32 Main ("[a]bsent exigent circumstances, a hearing, with notice to St., Bridgeport (No. 5:90--cv--544), and 8 Drumlin Rd., record owners, is held before seizure."). "To establish Westport (No. 5:90--cv--545), were abandoned and exigent circumstances, the Government must show that therefore subject to vandalism, deterioration and less restrictive measures-i.e., a lis pendens, restraining depreciation. See 2/20/91 Declaration in Support of order, or bond-would not suffice to protect the Motion for Interlocutory Sale [Doc. Nos. 28 Government's interest in preventing the sale, destruction, (5:90--cv--544), 31 (5:90--cv--545) ] at ¶¶ 4, 5. The marshal or continued unlawful use of the real property." Id. at 62, also certified that the mortgage obligations exceeded by 114 S.Ct. at 505. over $1,000 per month the rental income of the 2034--38

Main St., Bridgeport (No. 5:90--cv--546), property, which *5 Aguilar's properties addressed in the Second Complaint was several months in arrears and had little or no equity. were seized because there was probable cause that each See 2/21/90 Declaration in Support of Motion for had been used to facilitate the offenses for which he was Interlocutory Sale [Doc. No. 27 (5:90--cv--546) ] at ¶ 4. convicted. See 21 U.S.C. § 881(a)(7) (1999). This civil This court found these reasons sufficiently exigent to order forfeiture statute authorizes interlocutory sale of seized the interlocutory sales. See 8/1/90 Order for an properties by two methods, which are incorporated by Interlocutory Sale [Doc. Nos. 34 (5:90--cv--544), 50 reference into the statute. See 21 U.S.C. § 881(b) (5:90--cv--545), 31 (5:90--cv--546) ]. Interlocutory sale was (authorizing seizure of property subject to civil forfeiture thus warranted under both Rule E(9)(b) and § 1612(a) upon process issued pursuant to the Supplemental Rules because the two abandoned properties were liable to for Certain Admiralty and Maritime Claims; 21 U.S.C. § deteriorate or lose value and the mortgage liabilities of the 881(d) (authorizing seizure and summary sale governed by rented property were disproportionate in comparison to its the customs laws codified in the Tariff Act of 1930, 19 value. Cf. United States v. Esposito, 970 F.2d 1156, 1161 U.S.C. §§ 1602--1619). Though the source of authority (2d Cir.1992) (vacating order of interlocutory sale of differs, the standards for sale under each are virtually forfeited home where "there was no finding that t[he indistinguishable. amount expended for maintenance and repairs] was excessive or disproportionate"). these dismissals are made without prejudice and may be replead after the conclusion of the related forfeiture *6 Aguilar's claim that he was wrongfully denied an proceedings. opportunity to be heard prior to the sale of his properties D.Conn.,1999. is therefore not a cognizable due process challenge because the exigency of the properties' abandonment and Aguilar v. U.S. disproportionate cost of upkeep required their Not Reported in F.Supp.2d, 1999 WL 1067841 (D.Conn.) interlocutory sale. Thus, sua sponte dismissal is warranted END OF DOCUMENT because Aguilar's due process claim fails to state a remediable cause of action.

3. Other Claims

The remainder of Aguilar's claims are frivolous and can be disposed of readily. To the extent Aguilar's claim invoking 19 U.S.C. § 1615 can be construed as challenging the constitutionality of shifting the burden to the claimant upon the government's showing of probable cause, the Second Circuit has "h[e]ld that it does not violate due process to place the burden of proving an innocent owner affirmative defense on the claimant." 194 Quaker Farms Rd., 85 F.3d at 987. In addition, the tort claims for false pretenses and conversion are not actionable as these are intentional torts to which the limited waiver of sovereign immunity of the Federal Tort Claims Act ("FTCA") is inapplicable. See 28 U.S.C. § 2680(h); see also Bernard v. United States, 25 F.3d 98, 104 (2d Cir.1994) ("the FTCA does not authorize suits for intentional torts based on the actions of Government prosecutors"). Furthermore, because the United States government is not a fiduciary and owes no associated duties to Aguilar, his breach of fiduciary duty allegation against the government fails to state a claim. Finally, Aguilar also fails to state a valid mail fraud claim as that criminal code provision, 18 U.S.C. § 1341, may only be prosecuted by the government, not against it. Conclusion

For the foregoing reasons, Aguilar's complaints [Nos. 3:99--mc--304 and 3:99--mc--408] are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) because they present frivolous allegations, none of which state a cognizable claim, and seek monetary relief from an immune defendant. Because the court cannot definitively rule out the possibility that amendment to the pleadings might result in an actionable claim, see Gomez, 171 F.3d at 796, claimed that he never received defendants' motion to dismiss.

Only the Westlaw citation is currently available. By Judge Rakoff's Order dated April 14, 1998, this United States District Court, S.D. New York. case was referred to me for general pretrial purposes and for a Report and Recommendation on any dispositive Theodore HUDSON, Plaintiff, motion. Presently pending is defendants' renewed motion v. to dismiss. Plaintiff filed a reply on July 6, 1998. For the Christopher ARTUZ, Warden Philip Coombe, reasons discussed below, plaintiff's complaint is dismissed Commissioner Sergeant Ambrosino Doctor Manion without prejudice, and plaintiff is granted leave to replead Defendants. within thirty (30) days of the date of the entry of this No. 95 CIV. 4768(JSR). order.

Nov. 30, 1998. FACTS Mr. Theodore Hudson, Great Meadow Correctional Facility, Comstock. Plaintiff alleges that he was assaulted by four inmates in the Green Haven Correctional Facility mess hall on Alfred A. Delicata, Esq., Assistant Attorney General, New March 14, 1995. (Complaint at 4.) He alleges that he was York. struck with a pipe and a fork while in the "pop room" between 6:00 p.m. and 6:30 p.m. (Complaint at 4--5.) MEMORANDUM AND ORDER Plaintiff contends that the attack left him with 11 stitches in his head, chronic headaches, nightmares, and pain in his BUCHWALD, Magistrate J. arm, shoulder, and back. (Id.) Plaintiff also states that *1 Plaintiff Theodore Hudson filed this pro se action Sergeant Ambrosino "failed to secure [the] area and pursuant to 42 U.S.C. § 1983 on April 26, 1995. Plaintiff's separate" him from his attackers. (Reply at 5.) Plaintiff's complaint alleges defendants violated his constitutional claim against Warden Artuz is that he "fail [sic] to qualify rights while he was an inmate at Green Haven as warden." (Complaint at 4.) Plaintiff names Correctional Facility.FN1 Plaintiff's complaint was Commissioner Coombes as a defendant, alleging Coombes dismissed sua sponte by Judge Thomas P. Griesa on June "fail [sic] to appoint a qualified warden over security." 26, 1995 pursuant to 28 U.S.C. § 1915(d). On September (Amended Complaint at 5.) Plaintiff further alleges that 26, 1995, the Second Circuit Court of Appeals vacated the Dr. Manion refused to give him pain medication. judgment and remanded the case to the district court for (Complaint at 5.) Plaintiff seeks to "prevent violent further proceedings. crimes" and demands $6,000,000 in damages. (Amended FN1. Plaintiff is presently incarcerated at Complaint at 5.)

Sullivan Correctional Facility. Defendants moved to dismiss the complaint, arguing that: (1) the Eleventh Amendment bars suit against state The case was reassigned to Judge Barbara S. Jones on defendants for money damages; (2) the plaintiff's January 31, 1996. Defendants moved to dismiss the allegations fail to state a claim for a constitutional complaint pursuant to Fed.R.Civ.P. 12(c) on November violation; (3) the defendants are qualifiedly immune from 25, 1996. Thereafter, the case was reassigned to Judge Jed damages; and (4) plaintiff must exhaust his administrative S. Rakoff on February 26, 1997. On February 26, 1998, remedies before bringing this suit.

Judge Rakoff granted defendants' motion to dismiss, but vacated the judgment on April 10, 1998 in response to DISCUSSION plaintiff's motion for reconsideration in which plaintiff A complaint that fails to comply with these pleading

I find that plaintiff's complaint runs afoul of Rules 8 rules "presents far too heavy a burden in terms of and 10 of the Federal Rules of Civil Procedure and defendants' duty to shape a comprehensive defense and dismiss the complaint without prejudice and with leave to provides no meaningful basis for the Court to assess the amend. Federal Rule 8 requires that a complaint contain "a sufficiency of" a plaintiff's claims. Gonzales v. Wing, 167 short and plain statement of the claim showing that the F.R.D. 352, 355 (N.D.N.Y.1996). It may therefore be pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The dismissed by the court. Id.; see also Salahuddin v. Cuomo, purpose of this Rule "is to give fair notice of the claim 861 F.2d at 42 ("When a complaint does not comply with being asserted so as to permit the adverse party the the requirement that it be short and plain, the court has the opportunity to file a responsive answer [and] prepare an power to, on its own initiative, ... dismiss the complaint"). adequate defense." Powell v. Marine Midland Bank, 162 Dismissal, however, is "usually reserved for those cases in F.R.D. 15, 16 (N.D.N.Y.1995) (quoting Brown v. which the complaint is so confused, ambiguous, vague, or Califano, 75 F.R.D. 497, 498 (D.D.C.1977)); see otherwise unintelligible that its true substance, if any, is Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988) well disguised." Id. In those cases in which the court (stating that the "principal function of pleadings under the dismisses a pro se complaint for failure to comply with Federal Rules is to give the adverse party fair notice of the Rule 8, it should give the plaintiff leave to amend when claim asserted so as to enable him to answer and prepare the complaint states a claim that is on its face for trial"). non-frivolous. Simmons v. Abruzzo, 49 F.3d 83, 87 (2d *2 Rule 10 of the Federal Rules of Civil Procedure Cir.1995). requires, inter alia, that the allegations in a plaintiff's complaint be made in numbered paragraphs, each of which In determining whether a non-frivolous claim is stated, should recite, as far as practicable, only a single set of the complaint's allegations are taken as true, and the circumstances. Moore's Federal Practice, Vol. 2A, ¶ "complaint should not be dismissed for failure to state a 10.03 (1996). Rule 10 also requires that each claim upon claim unless it appears beyond doubt that the plaintiff can which plaintiff seeks relief be founded upon a separate prove no set of facts in support of his claim which would transaction or occurrence. Id.FN2 The purpose of Rule 10 entitle him to relief." Conley v.. Gibson, 355 U.S. 41, is to "provide an easy mode of identification for referring 45--46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The complaint to a particular paragraph in a prior pleading." Sandler v. of a pro se litigant is to be liberally construed in his favor Capanna, 92 Civ. 4838, 1992 WL 392597, *3 (E.D.Pa. when determining whether he has stated a meritorious Dec.17, 1992) (citing 5 C. Wright & A. Miller, Federal claim. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. Practice and Procedure, § 1323 at 735 (1990)). 594, 30 L.Ed.2d 652 (1972). Even if it is difficult to determine the actual substance of the plaintiff's complaint, FN2. Rule 10 states: outright dismissal without leave to amend the complaint is generally disfavored as an abuse of discretion. See (b) Paragraphs; Separate Statements. All Salahuddin, 861 F.2d at 42--42; see also Doe v. City of averments of claim or defense shall be made in New York, No. 97 Civ. 420, 1997 WL 124214, at *2 numbered paragraphs, the contents of each of (E.D.N.Y. Mar.12, 1997). which shall be limited as far as practicable to a statement of a single set of circumstances; Here, plaintiff's pro se complaint fails to satisfy the and a paragraph may be referred to by number requirements of Federal Rules 8 and 10. The complaint is in all succeeding pleadings. Each claim often illegible and largely incomprehensible, scattering founded upon a separate transaction or what appear to be allegations specific to plaintiff within a occurrence and each defense other than denials forest of headnotes copied from prior opinions. shall be stated in a separate count or defense Defendants have answered with a boilerplate brief, which whenever a separation facilitates the clear is perhaps all a defendant can do when faced with such a presentation of the matters set forth. complaint. The Court is left with an insurmountable burden in attempting to make a reasoned ruling on such muddled pleadings.

For the reasons set forth above, plaintiff's complaint *3 Although plaintiff's complaint is substantially is dismissed without prejudice, and plaintiff is granted incomprehensible, it appears to plead at least some claims leave to replead within thirty (30) days of the date of the that cannot be termed frivolous on their face. For example, entry of this Order. plaintiff clearly alleges that inmates assaulted him and that IT IS SO ORDERED.

Dr. Manion refused to provide him medical attention. He also appears to assert that Sergeant Ambrosino failed to S.D.N.Y.,1998. protect him from the attack or take steps to prevent future attacks. (Plaintiff's Reply at 5). It is well established that Hudson v. Artuz an inmate's constitutional rights are violated when prison Not Reported in F.Supp.2d, 1998 WL 832708 (S.D.N.Y.) officials act with deliberate indifference to his safety or END OF DOCUMENT with intent to cause him harm. Hendricks v. Coughlin, 942 F.2d 109 (2d Cir.1991). It is similarly well established that an inmate's constitutional rights are violated when a prison doctor denies his request for medical care with deliberate indifference to the inmate's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Hathaway v. Coughlin, 37 F.3d 63 (2d Cir.1994), cert. denied, 513 U.S. 1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995). Although plaintiff provides few facts to support his allegations, I disagree with defendants' assertion that outright dismissal is appropriate because it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Defendant's Memorandum at 5 (quoting Conley v. Gibson, 355 U.S. 41, 45--46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

Because plaintiff's complaint does not comply with Rules 8 and 10, it is hereby dismissed without prejudice, and plaintiff is granted leave to replead within thirty (30) days of the date of the entry of this Order. In drafting his second amended complaint, plaintiff is directed to number each paragraph and order the paragraphs chronologically, so that each incident in which he alleges a constitutional violation is described in the order that it occurred. Plaintiff is also directed to specifically describe the actions of each defendant that caused plaintiff harm, and to do so in separate paragraphs for each defendant. Plaintiff's complaint shall contain the facts specific to the incidents plaintiff alleges occurred, and not any facts relating to any case that has been decided previously by a court of law. Plaintiff's complaint shall also contain a clear statement of the relief he seeks in addition to monetary damages.


quotation marks omitted). Plaintiffs must prove subject-matter jurisdiction by a preponderance of the evidence. Id.

Only the Westlaw citation is currently available. Subject-matter jurisdiction over the United States and United States District Court, its agencies exists only where the United States has waived its sovereign immunity. Dep't of the Army v. Blue S.D. New York. Fox, Inc., 525 U.S. 255, 260 (1999). Sovereign immunity Anthony SPINALE and G & T Terminal Packaging Co., can be waived only by statute. Presidential Gardens Inc., Plaintiffs, Assocs. v. United States ex rel. Sec'y of HUD, 175 F.3d v. 132, 139 (2d Cir.1999). If no statute authorizes Plaintiffs' UNITED STATES DEPARTMENT OF claims against the USDA, then this Court lacks AGRICULTURE, Defendant. subject-matter jurisdiction. See FDIC v. Meyer, 510 U.S. No. 05 Civ. 9294(KMW). 471, 475 (1994) ("Sovereign immunity is jurisdictional in nature.").

March 8, 2007.


Plaintiffs contend that the first three causes of action in their Complaint, sounding in tort and alleging WOOD, J. malfeasance and fraud, are authorized by the Federal Tort *1 Plaintiffs are a corporation that buys and sells Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2401(b), potatoes, and its president. They filed suit against 2671-2680. This is incorrect. These three causes of action Defendant United States Department of Agriculture are rooted in allegations of misrepresentation or deceit; ("USDA") for malfeasance, fraud, and breach of contract they are thus not authorized by the FTCA, which excludes relating to the practices of USDA inspectors at the Hunts claims "arising out of ... misrepresentation [or] deceit." Id. Point Terminal Market in the Bronx. The USDA moves to § 2680(h). "[T]he essence of an action for dismiss the Complaint for lack of subject-matter misrepresentation ... is the communication of jurisdiction and failure to state a claim on which relief can misinformation on which the recipient relies." Block v. be granted. Fed.R.Civ.P. 12(b)(1), (6). Because the Court Neal, 460 U.S. 289, 296 (1983). concludes that it lacks jurisdiction, the Complaint is dismissed.FN1 Here, each of Plaintiffs' first three claims is based on FN1. Because the Court concludes that it lacks alleged misrepresentation by the USDA of the actual state subject-matter jurisdiction over any of Plaintiffs' of inspected produce, notwithstanding that Plaintiffs do claims, it need not consider the USDA's not use the word "misrepresentation." FN2 See United alternative argument that Plaintiffs have failed to States v. Neustadt, 366 U.S. 696, 703 (1961) (approving state a claim for breach of contract. l o w e r c o u r t s t a t e m e n t , i n c a s e d e f i n i n g "misrepresentation" under 28 U.S.C. § 2680(h), that " DISCUSSION '[w]e must then look beyond the literal meaning of the language to ascertain the real cause of complaint" ' "After [c]onstruing all ambiguities and drawing all (quoting Hall v. United States, 274 F.2d 69, 71 (10th inferences in a plaintiff's favor, a district court may Cir.1959))). Plaintiffs do not distinguish, dispute, or properly dismiss a case for lack of subject matter discuss several analogous cases cited by the USDA, in jurisdiction under Rule 12(b)(1) if it lacks the statutory or which courts barred claims against the agency for constitutional power to adjudicate it." Aurecchione v. improper inspection of foodstuffs on the ground that the Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d claims were really misrepresentation claims under Section Cir.2005) (alteration in original) (citations and internal 2680(h). See Carolinas Cotton Growers Ass'n, Inc. v. certificates because Spinale ... knew that the inspection United States, 785 F.2d 1195 (4th Cir.1986) certificates were inaccurate." (Pls.' Mem. of Law in Opp'n (misrepresentation claim where USDA misgraded cotton); 7.) The first objection is irrelevant: the government's Rich Prods. Corp. v. United States, 804 F.Supp. 1270 misrepresentation need not have been made for the (E.D.Cal.1992) (same, where USDA improperly inspected purpose of pecuniary gain, given that Section 2680(h) also fruit); Forsythe Meats, Inc. v. USDA, 508 F.Supp. 237 bars claims for negligent misrepresentation. Neustadt, 366 (S.D.N.Y.1981) (same, where USDA wrongly identified U.S. at 702. The facts relied upon in the second objection plaintiff's meat as contaminated).FN3 are time-barred by the FTCA's two-year statute of limitations, 28 U.S.C. § 2401(b), given that Plaintiffs FN2. T he first cause of action, for acknowledge in their brief that they have been subjected "malfeasance," claims that the USDA "instructed to no inspections (fraudulent or otherwise) since 1999. its inspectors to falsify inspection reports" (Pls.' Mem. of Law in Opp'n 10.) If, as Plaintiffs assert, (Compl.¶ 54) and to reinspect where its initial they knew the certificates were inaccurate at the time of inspection found grade defects in more than 5% the inspections, then their claim accrued no later than of potatoes (id. ¶ 56). The second cause of 1999; plaintiff Spinale did not file a claim for damages action, also for "malfeasance," alleges that the with the USDA until January 2005. (Compl.¶ 48.) USDA "instructed its inspectors not to use the word 'Soft' when describing produce .... Plaintiffs' fourth cause of action alleges breach of caus[ing] the inspection reports to be contract. The United States has waived its immunity to inaccurate." (Id. ¶ 62.) The third cause of action, breach of contract suits in the Tucker Act, 28 U.S.C. § for fraud, claims that the USDA ordered 1491.FN4 However, for claims of more than $10,000, the inspectors to determine if a prior inspection of a Tucker Act vests exclusive jurisdiction in the Court of produce shipment had been performed and, if so, Federal Claims. See 28 U.S.C. § 1346(a)(2); id. § "to make the inspection similar to the prior 1491(a)(1). Because Plaintiffs seek damages of $500,000 inspection or slightly worse." (Id. ¶ 70.) on their fourth cause of action (Compl.¶ 82), this Court Plaintiffs acknowledge that the conduct has no jurisdiction to entertain their claim. described in the third cause of action "constitutes the intentional use of deceit by dishonest means." FN4. The Tucker Act provides, in relevant part: (Id. ¶ 74 (emphasis added).)

The United States Court of Federal Claims

FN3. Although all these cases dealt with shall have jurisdiction to render judgment allegations of negligent rather than intentional upon any claim against the United States misrepresentation, the distinction is irrelevant for founded either upon the Constitution, or any purposes of 28 U.S.C. § 2680(h). The Supreme Act of Congress or any regulation of an Court in Neustadt made clear that the bar on executive department, or upon any express or misrepresentation or deceit claims against the implied contract with the United States, or for United States extends to intentional and liquidated or unliquidated damages in cases negligent misrepresentations alike. Neustadt, 366 not sounding in tort.

U.S. at 702.

28 U.S.C. § 1491(a)(1).

*2 Plaintiffs argue that their malfeasance and fraud causes of action should not be regarded as Plaintiffs incorrectly claim that the Tucker Act bars misrepresentation claims because (1) "the USDA the Court of Federal Claims from hearing this cause of inspectors did not misstate facts to obtain money, goods or action. The Act grants the Court of Federal Claims benefits of another to which they were not entitled" and jurisdiction over claims founded "upon any express or (2) "the Plaintiffs never relied upon the inspection implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(1) (emphasis added). Plaintiffs' fourth cause of action is founded upon an express or implied contract with the United States; it therefore falls within the Act's grant of jurisdiction. FN5

FN5. Plaintiffs' error is grammatical. They assume that the phrase "in cases not sounding in tort" modifies two prepositional phrases: "upon any express or implied contract with the United States" and "for liquidated or unliquidated damages." The word "or" and the comma preceding it, however, show that "in cases not sounding in tort" modifies only the latter phrase.

Plaintiffs' argument that tort and contract claims should not be entertained in separate fora is moot. Plaintiffs' tort claims may not be entertained at all, so no bifurcation will be required.


For the reasons stated above, Plaintiffs' Complaint is DISMISSED. The Clerk of Court is directed to close this case. Any pending motions are moot.



*1 This matter is before the Court on the cross-motions for summary judgment of Plaintiff Balfour Land Company, L.P. and Defendants United States of Only the Westlaw citation is currently available. America, United States Department of Agriculture, and United States District Court, Farm Service Agency. FN1 In its Motion for Summary Judgment (Doc. 29), Defendants contend that they are M.D. Georgia, entitled to judgment as a matter of law as to all claims Valdosta Division. against them. Plaintiff has countered with its own Motion BALFOUR LAND COMPANY, L.P., Plaintiff, for Summary Judgment (Doc. 31), in which it contends it v. is entitled to judgment against Defendants as a matter of UNITED STATES of America, United States law. After review of the pleadings, the discovery and Department of Agriculture, and Farm Services Agency, disclosure materials on file, and the administrative record Defendants. of the United States Department of Agriculture National Civil Action No. 7:08-cv-34 (HL). Appeals Division, the Court denies the motion of Plaintiff and grants the motion of Defendants.

June 22, 2009. FN1. Clara Dunbar, a Farm Service Agency West KeySummaryAgriculture 23 3.2 employee, was named as a defendant in Plaintiff's amended complaint. On May 23, 2008, 23 Agriculture a Notice of Substitution of Party Defendant was filed in which the United States was substituted 23k3 Public Aid under the Westfall Act, 28 U.S.C. § 2679, for 23k3.2 k. Soil Conservation Incentives and Ms. Dunbar as a defendant with respect to the Payments. Most Cited Cases claims raised against her in the amended

A final administrative decision allowing the complaint. cancellation of a Conservation Reserve Program (CRP) contract and requiring the landowner to refund all annual I. FACTS rental payments and liquidated damages was upheld. The landowner had sold the property, but failed to make the This case involves the USDA's Conservation Reserve new owner a successor to the contract within sixty days. Program ("CRP"), under which the Commodity Credit The National Appeals Division (NAD) decision was not Corporation ("CCC") enters into 10-year contracts with arbitrary or capricious as the agency was not required to eligible participants to convert eligible land to a consider equitable relief before canceling the contract. conserving use in return for financial and technical Farm Service Agency (FSA) was specifically required to assistance. 7 CFR §§ 1410.3(a), 1410.7(a). One of the cancel CRP contracts to which a new owner did not main objectives of the CRP is to cost-effectively reduce succeed. 7 C.F.R. § 1410.51(b). water and wind erosion. 7 CFR § 1410.3(c). The property James A. Garland, Thomas Heyward Vann, Jr., owner is required to implement a conservation plan that Thomasville, GA, for Plaintiff. complies with CCC guidelines and has been approved by the conservation district for the land to be entered in the Stewart R. Brown, United States Attorney's Office, CRP. 7 CFR § 1410.22(a).

Macon, GA, for Defendants. An appendix containing the contract's terms and conditions is attached to each CRP contract. The program ORDER is also governed by 16 U .S.C. §§ 3831-3836 and Part 1410 of Title 7 of the Code of Federal Regulations. If

HUGH LAWSON, Senior District Judge.

there are any conflicts between the terms in the appendix and the regulations, the regulations control. FN4. Booth Disston North, LLC and Booth

Disston Properties, LLC will be referred to Balfour Land Company, L.P. is a Georgia limited collectively as Booth for purposes of this Order. partnership. Georgia Land Holdings, Inc., a Georgia corporation, is the general partner of Balfour. FN2 Ira Lee, No writings or documents generated at or for the Jr. ("Mr.Lee"), also known as Sonny Lee, is president of closing specifically provided that Booth would assume the Georgia Land Holdings, Inc., which in effect also makes CRP contracts then governing the Disston Place. Mr. Lee him the president of Balfour. made a personal visit to the FSA office in Thomasville, Georgia on the date of the closing. During that visit, Mr. FN2. Balfour Land Company, L.P. and Georgia Lee informed the FSA of the sale of the Disston Place and Land Holdings, Inc. will be collectively referred that Booth intended to assume the CRP contracts. to as Plaintiff for purposes of this Order.

On January 11, 2005, Richard Small, an agent for Prior to the occurrences which make up the basis for Booth, met with FSA program technician Clara Dunbar at this lawsuit, Plaintiff owned real property located in the Thomasville FSA office. Mr. Small paid the FSA Thomas and Brooks Counties, known as the "Disston $318.46 on behalf of Booth. This payment represented Place," consisting of approximately 5,000 acres. The Farm liquidated damages to the FSA for the cancellation of Serial Number ("FSN") assigned by the Farm Service Contract 334, which was the re-enrollment of the land Agency ("FSA") FN3 for the Disston Place was 539. previously the subject of Contract 147. The FSA did not ask for Plaintiff's consent prior to terminating Contract FN3. The Farm Service Agency is part of the 334. During that meeting, Mr. Small was told about the United States Department of Agriculture. other CRP contracts, and he allegedly said that he knew only of Contract 334. Booth was not required by the FSA Prior to September 21, 2004, there were three CRP to assume Contracts 147, 305, or 306 at that time. contracts related to the Disston Place. These were (1)

Contract 147 on Tract 241 for 25.6 acres dated September On or about May 31, 2005, Ms. Dunbar informed 22, 1995, with an expiration date of September 30, 2005; Plaintiff that Contracts 147, 305, and 306 were still in (2) Contract 305 on Tract 236 for 16.6 acres dated June 9, effect. This was because Booth had not assumed or 2003, with an expiration date of September 30, 2018; and become Plaintiff's successor in interest to the contracts. (3) Contract 306 on Tract 241 for 86.6 acres dated June 9, 2003, with an expiration date of September 30, 2018. On On or about June 9, 2005, a representative of Plaintiff September 21, 2004, Mr. Lee signed a re-enrollment of faxed two warranty deeds to the FSA showing that Contract 147, which was scheduled to expire on Plaintiff had sold the Disston Place on October 21, 2004. September 30, 2005. The re-enrollment contract was The warranty deeds were supplied to the FSA in response designated as Contract 334, which had an effective date of to a previous call to Mr. R.C. Balfour, III, a partner in October 1, 2005, and an expiration date of September 30, Plaintiff, from the FSA about another matter pertaining to 2018. Contracts 147, 305, 306, and 334 were considered FSN 539. In that call, Mr. Balfour stated that the property by the FSA to be four separate contracts. had been sold and the FSA should contact Mr. Lee. *2 On October 21, 2004, Plaintiff sold the Disston On or about August 22, 2006, Mr. Lee contacted the Place to Booth Disston North, LLC and Booth Disston FSA and stated that a Mr. Whitfield would be coming to Properties, LLC, both Georgia limited liability the FSA on that date on behalf of Booth to inquire about companies.FN4 Hurley Booth, the manager of Booth, and Contracts 147, 305, and 306. Mr. Whitfield did not Mr. Lee, representing Plaintiff, both attended the October appear. The FSA attempted to contact Mr. Whitfield on 21, 2004 closing of the sale of the Disston Place to Booth. August 31, September 1, and September 6, 2006 via a cell phone number supplied by Mr. Lee. The attempts to reach Contract 334, the canceling of the contract did not Mr. Whitfield were unsuccessful. constitute succeeding to the remaining CRP contracts; and (4) that allowing Booth to cancel Contract 334 did not On September 19, 2006, Mr. Small made another visit harm Plaintiff because Booth incurred the required to the Thomasville FSA office. He inquired about the CRP liquidated damages. contracts relating to the Disston Place. The FSA provided Mr. Small with the forms used to establish the producer Plaintiff subsequently requested Director Review of and eligibility information needed to participate in FSA the NAD decision. In a decision issued on February 6, programs. Mr. Small stated that he would take the forms 2008, the deputy director upheld the NAD's determination. back to his office for completion by Mr. Whitfield, but the forms were never returned to the FSA. II. SUM M ARY JUDGM ENT STANDARD

Contract 147 expired by its terms on September 30, Summary judgment is proper "if the pleadings, the 2005. This contract was marked terminated by the FSA on discovery and disclosure materials on file, and any February 16, 2007. The FSA also marked Contracts 305 affidavits show that there is no genuine issue as to any and 306 as terminated on February 16, 2007. The FSA material fact and that the movant is entitled to judgment as informed Plaintiff by letter dated February 16, 2007 that a matter of law." Fed.R.Civ.P. 56(c). The moving party Plaintiff was obligated to refund all annual rental has the initial burden of informing the court of the basis payments plus interest, all costshare payments plus for the motion and showing that there is no genuine issue interest, and liquidated damages in the total amount of of material fact by "identifying those portions of 'the $21,898.80. The appendix to the CRP contracts contains pleadings, depositions, answers to interrogatories, and a provision which states that if a participant transfers admissions on file, together with the affidavits, if any,' property subject to a contract and the new owner does not which it believes demonstrate the absence of a genuine become a successor to the contract within 60 days of the issue of material fact." Celotex Corp. v. Catrett, 477 U.S. transfer, or within such time as deemed appropriate by the 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). That CCC, the contract will be terminated and the original burden is "discharged by 'showing'-that is, pointing out to owner must refund all payments made plus interest and the district court-that there is an absence of evidence to any liquidated damages as set out in the appendix. support the nonmoving party's case." Id. at 325.

Once the movant has met this burden, the opposing *3 After receiving the FSA's letter regarding the party must present evidence establishing that there is a refund and damages, Plaintiff filed for reconsideration and genuine issue of material fact. Id. In order to defeat subsequently met with the FSA on April 12, 2007. The summary judgment, the nonmoving party must respond by FSA upheld its demand. The parties then mediated the going beyond the pleadings, and by his own affidavits, or matter, with the FSA ultimately adhering to its initial by the discovery on file, identify facts sufficient to decision. Plaintiff appealed the decision to the United establish the existence of a genuine issue for trial. See id. States Department of Agriculture National Appeals at 322, 324.

Division ("NAD"), which affirmed the ruling of the FSA in a decision dated November 15, 2007. A dispute about a material fact is "genuine" "if the evidence is such that a reasonable jury could return a In its decision, the NAD found as follows: (1) that any verdict for the nonmoving party." Anderson v. Liberty verbal agreement between Plaintiff and Booth for Booth Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 to succeed to the CRP contracts should have been reduced L.Ed.2d 202 (1986). "If the evidence is merely colorable, to writing prior to the closing of the sale; (2) that there was or is not significantly probative, summary judgment may never any action by Booth as required by regulations to be granted." Id. at 249-250 (internal citations omitted). It obtain approval from the FSA to succeed to or modify the is not the court's function at the summary judgment stage contracts; (3) that while the FSA allowed Booth to cancel to determine credibility or decide the truth of the matter.

Id. at 249. Rather, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn FSA, or a designee in his favor." Id. at 255.

may provide equitable relief to a participant who has

III. CONCLUSIONS OF LAW entered into a contract under this chapter, and who is subsequently determined to be in violation of the

A. Judicial review of the final decision of the National contract, if the participant, in attempting to comply with Appeals Division the terms of the contract and enrollment requirements, took actions in good faith reliance upon the action or *4 Defendants argue that they are entitled to summary advice of an authorized USDA representative, as judgment upholding the final administrative decision determined by the Deputy Administrator, provided: issued by the NAD. Plaintiff, on the other hand, argues that it is entitled to summary judgment reversing the (1) The Deputy Administrator determines that a NAD's decision. Judicial review of final decisions of the participant has been injured by such good faith NAD is to be in accordance with Chapter 7 of Title 5 of reliance, in which case, the participant may be the United States Code. 7 U.S.C. § 6999. authorized, as determined appropriate by the Deputy

Administrator, to do any one or more of the "Summary judgment is particularly appropriate in following; cases in which a district court is asked to review a decision rendered by a federal administrative agency." Mahon v. (i) Retain payments received under the contract; United States Dep't of Agric., 485 F.3d 1247, 1253 (11th Cir.2007). However, "even in the context of summary (ii) Continue to receive payments under the contract; judgment, an agency action is entitled to great deference."

Id. (quoting Alabama-Tombigbee Rivers Coalition v. (iii) Keep all or part of the land covered by the Kempthorne, 477 F.3d 1250, 1254 (11th Cir.2007)). contract enrolled in the applicable program under this chapter;

The Court is limited in the scope of its review of an agency action. Plaintiff has asked the Court to set aside the (iv) Re-enroll all or part of the land covered by the NAD's determination because it was arbitrary and contract in the applicable program under this chapter; capricious and unsupported by substantial evidence. 5 or U.S.C. § 706(2)(A) and (E). The Administrative Procedures Act requires the Court to set aside any agency *5 (v) Any other equitable relief the Deputy action that is found to be arbitrary, capricious, an abuse of Administrator deems appropriate. discretion, in excess of statutory authority, without observance of procedure as required by law, or 7 CFR § 1410.54(b)(1). unsupported by substantial evidence. 5 U.S.C. § 706(2).

The Court must determine "whether an agency's decision Defendants have taken the position that the FSA was was based on a consideration of the relevant factors and required to terminate Contracts 147, 305, and 306, and in whether there has been a clear error of judgment." Sierra turn request refund payments and liquidated damages from Club v. Johnson, 436 F.3d 1269, 1273-74 (11th Cir.2006) Plaintiff, because 60 days passed without another entity (internal quotation marks and citations omitted). becoming the successor to the contracts. Plaintiff argues in response that equitable relief should have been Plaintiff first contends that the NAD's final considered because the FSA "acquiesced in the passage of determination should be reversed because the FSA should the alleged 60 day deadline, did not inform Balfour of have considered estoppel or other equitable relief developments with Booth's dealings with FSA, and it did available through the CRP, but failed to do so. Under the not attempt to enforce the alleged 60 day deadline for version of the Code of Federal Regulations relied upon by more than two years." (Doc. 39, p. 4).

Plaintiff, the Deputy Administrator for Farm Programs, provisions of § 718.8 of this chapter relating to

Before addressing the parties' arguments, the Court performance based upon the action or advice of an must note that its review of the agency's decision has been authorized representative of the Department shall be complicated by the parties' apparent inability to agree on applicable to this part, and may be considered as a basis to the proper version of the federal regulations applicable to provide relief to persons subject to sanctions under this this matter. Plaintiff initially made references to the 1997 part to the extent that relief is otherwise required by this and 2007 editions of the Code of Federal Regulations in part." While § 718.8 was revised effective March 31, 2003 its motion for summary judgment, but later in its response to address a topic which has nothing to do with this case to Defendants' motion stated that it would apply the 2003 FN5, even if the Court considers the former version of § edition of the CFR in order to maintain the parties' 718.8, it does not appear that any equitable considerations stipulations from the administrative hearing. The Court by the FSA were required. nevertheless found that the parties each presented a different version of what it believes the applicable 2003 FN5. Revised § 718.8, entitled "Administrative regulations to be. In reviewing the transcript of the county," reads as follows: administrative hearing, the Court notes that the parties agreed that the NAD's decision was governed by "the (a) If all land on the farm is physically located regulations at Title 7, Code of Federal Regulations, Part in one county, the farm shall be 1410...." (Transcript, p. 27). The problem is that through administratively located in such county. If an interim rule signed on May 2, 2003, Part 1410, the there is no FSA office in the county or the Conservation Reserve Program, was completely revised, county offices have been consolidated, the with an effective date of May 5, 2003. 68 Fed.Reg. farm shall be administratively located in the 24830-01, 2003 WL 21023039 (May 8, 2003). Plaintiff contiguous county most convenient for the relies on the pre-May 5, 2003 version of the regulations to farm operator. support its position, and Defendants look to the revised regulations. (b) If the land on the farm is located in more than one county, the farm shall be The post-May 5, 2003 regulations state that "[t]he administratively located in either of such regulations governing the CRP as of May 12, 2002, shall counties as the county committees and the continue to govern contracts in effect as of that date.... farm operator agree. If no agreement can be This part shall apply to contracts executed on or after May reached, the farm shall be administratively 13, 2002." 7 CFR § 1410.1(j). Contracts 305 and 306 located in the county where the principal were executed on June 9, 2003, which means that the dwelling is situated, or where the major revised regulations are the applicable regulations. The portion of the farm is located if there is no Court recognizes that Contract 147, which was executed dwelling. on September 22, 1995, would be governed by a different set of regulations, but in light of the parties' stipulation (c) The State committee shall submit all that the 2003 regulations apply, the revised 2003 requests to deviate from regulations specified regulations should be applied to that contract as well. in this section to the Deputy Administrator.

Subsection (b) of 7 CFR § 1410.54, upon which *6 The former version of § 718.8 provides: Plaintiff relies for its equitable relief argument, was stricken from the regulation with the May 5, 2003 (a) Notwithstanding any other provision of the law, revisions. The Court cannot find that the FSA should have performance rendered in good faith based upon action considered equitable relief for Plaintiff when such relief of, or information provided by, any authorized was not provided for under the applicable regulations. representative of a County or State Farm Service Revised § 1410.54 does, however, state that "[t]he Agency Committee, may be accepted by the Administrator, FSA (Executive Vice President, CCC), Court cannot find that the NAD's decision that the the Associate Administrator, FSA (Vice President, contracts had to be terminated because the new owner did CCC), or the Deputy Administrator for Farm Programs, not become a successor to the contract within 60 days of FSA (Vice President, CCC), as meeting the the sale is not in accordance with the law. In fact, 7 CFR requirements of the applicable program, and benefits § 1410.51(b) specifically requires the FSA to terminate may be extended or payments may be made therefor in contracts to which the new owner does not succeed. ("If a accordance with such action or advice to the extent it is participant transfers all or part of the right and interest in, deemed desirable in order to provide fair and equitable ... land subject to a CRP contract and the new owner or treatment. operator does not become a successor to such contract within 60 days, or such other time as the Deputy (b) The provisions of this section shall be applicable Administrator determines to be appropriate, of such only if a producer relied upon the action of a county or transfer, such contract shall be terminated ....") State committee or an authorized representative of such (emphasis added). committee or took action based on information provided by such representative. The authority provided in this *7 According to Plaintiff, the true issues in this case part does not extend to cases where the producer knew are whether allowing Booth to cancel Contract 334 or had sufficient reason to know that the action or without Plaintiff's permission amounted to Booth advice of the committee or its authorized representative becoming a successor to all four CRP contracts and upon which they relied was improper or erroneous, or whether allowing Booth to cancel Contract 334 should where the producer acted in reliance on their own relieve Plaintiff of any obligations with respect to misunderstanding or misinterpretation of program Contracts 147, 305, and 306. The NAD determined that provisions, notices, or advice. while it may have been improper for the FSA to allow

Booth to cancel Contract 334 without formally accepting

For this regulation to be applicable, Plaintiff would it as the successor to that contract, this did not change the have to show that it acted in good faith in response to the fact that the FSA did not approve Booth as a successor in action of, or information provided by, an FSA interest to the other three contracts, which were separate representative to meet the requirements of the CRP contracts. Plaintiff believes that the NAD's final program, or in other words, that an FSA representative determination should be reversed because it failed to incorrectly advised Plaintiff on how to maintain CRP consider that the CRP contracts were not, as suggested by eligibility. Plaintiff, however, has not provided the Court the FSA, separate and distinct contracts, and that to the with evidence of any advice or information from the FSA extent the final determination accepted the reasoning that that it relied upon, whether rightly or wrongly. In any the contracts were separate contracts, the agency action event, Plaintiff knew or had reason to know through the runs counter to the evidence. appendix attached to the contracts that if it sold the property and the contracts were not succeeded to within 60 In a Fifth Circuit decision, that court held that when days of the sale, the contracts would be terminated and agency decisions are challenged under the "arbitrary and Plaintiff would be required to pay certain amounts to the capricious" standard, the burden is on the challenging FSA. party, and to carry this burden the challenging party must show that the agency's decision was either not based on a The equitable relief Plaintiff refers to in its briefs is consideration of the relevant factors or amounted to a not available to it, as the applicable regulation no longer clear error of judgment. See Ward v. Campbell, 610 F.2d contains the provision allowing for the relief and because 231, 235 (5th Cir.1980). A finding that the agency's action Plaintiff has presented no evidence that it performed in is arbitrary and capricious would require the court to find any manner based upon the action or advice of an FSA that there is no rational basis for the decision. Tackitt v. representative. A review of the revised 2003 regulations Prudential Ins. Co. of America, 758 F.2d 1572, 1575 does not reveal any other basis for equitable relief. The (11th Cir.1985). If the court determines that a rational connection exists between the evidence and the decision, recover public funds, and that an unclean hands argument then the court will defer to the expertise of the agency. Id. fails if the Court upholds the NAD's final determination.

The Eleventh Circuit has set out a three-part analysis

The Court finds that the NAD's final decision was not to determine whether estoppel should apply against the arbitrary or capricious or unsupported by substantial United States government: (1) the traditional private law evidence. "The substantial evidence test is no more than a elements of estoppel must have been present; (2) the recitation of the application of the arbitrary and capricious Government must have been acting in its private or standard to factual findings." Fields v. United States Dep't proprietary capacity as opposed to its public or sovereign of Labor Review Board, 173 F.3d 811, 813 (11th capacity; and (3) the Government's agent must have been Cir.1999) (internal quotation marks omitted). The acting within the scope of his or her authority.FN6 United evidence before the Court is that the four CRP contracts States v. Vonderau, 837 F.2d 1540, 1541 (11th Cir.1988). were separate contracts and separate action had to be taken for each. Plaintiff was on notice that if it transferred FN6. The Eleventh Circuit has questioned land subject to a CRP contract and the new owner did not whether estoppel can even be applied against the succeed to the new contract within 60 days of the sale, the Government. In Savoury v. U.S. Attorney contract would be terminated and Plaintiff would be General, 449 F.3d 1307, 1318 (11th Cir.2006), responsible for making various reimbursement payments. the court stated that "it is far from clear that the While Mr. Lee may have told someone with the FSA that doctrine of equitable estoppel may even be Booth intended to assume the contracts, Booth never applied against a government agency. The completed the process to succeed to Contracts 147, 305, Supreme Court has never held that it may be." and 306. For the NAD to find that the cancellation of Contract 334 had no effect on Plaintiff's obligations under Plaintiff must prove four elements to support an the other three contracts is not arbitrary or capricious or equitable estoppel claim: "(1) words, conduct, or against the evidence. It appears that the FSA and NAD acquiescence that induced reliance; (2) willfulness or appropriately applied the agency's regulations with regard negligence with regard to the acts, conduct, or to Contracts 147, 305, and 306, for which the FSA now acquiescence; (3) detrimental reliance; and (4) affirmative seeks reimbursement. Therefore, the Court grants misconduct by the government." United States v. Defendants' motion for summary judgment, denies McCorkle, 321 F.3d 1292, 1297 (11th Cir.2003). Plaintiff's motion for summary judgment, and upholds the Affirmative misconduct requires more than governmental administrative decision. negligence or inaction. Id. Plaintiff argues that the willfulness or negligence prong is met because Booth was B. Equitable estoppel and unclean hands improperly allowed to cancel Contract 334, but Plaintiff has not demonstrated anything beyond negligence or *8 Plaintiff contends that the NAD's final oversight on the part of the FSA, which is insufficient determination should be reversed because the NAD establish an estoppel claim. No evidence of affirmative director failed to consider and examine the doctrines of misconduct on the part of the FSA has been presented by unclean hands and estoppel. This is based on the FSA Plaintiff. Further, Plaintiff has not directed the Court to allowing Booth to cancel Contract 334 in violation of the any words or conduct on the part of the FSA directed at FSA's rules, regulations, and guidelines. Plaintiff asks that Plaintiff that it relied upon to its detriment. As Plaintiff the FSA be permanently enjoined from implementing or cannot meet the requirements for an equitable estoppel enforcing the final determination or requiring Plaintiff to claim, Defendants are entitled to summary judgment on pay the reimbursement payments, liquidated damages, and Plaintiff's request for equitable estoppel. Defendants are interest payments. Defendants have moved for summary also entitled to summary judgment on Plaintiff's request judgment in their favor on the equitable estoppel and for a reversal based on the doctrine of unclean hands in unclean hands claims, taking the position that equitable light of the Court's decision that the NAD's final estoppel cannot apply against the government in a suit to determination should be upheld.

C. Declaratory judgment 28 U.S.C. § 1346(b)(1).

Plaintiff has moved pursuant to 28 U.S.C. § 2201 for This paragraph is a general waiver of the United a declaration that the NAD's final determination shall not States' sovereign immunity. Some of the waiver, however, be implemented or enforced. In light of the Court's is taken back in the "Exceptions" section of the FTCA, determination that the NAD's decision was not arbitrary or which provides in part that the § 1346(b) waiver "shall not capricious or otherwise against the law, Defendants are apply to ... [a]ny claim arising out of assault, battery, false entitled to summary judgment on Plaintiff's request for imprisonment, false arrest, malicious prosecution, abuse of declaratory judgment. process, libel, slander, misrepresentation, deceit, or D. Intentional interference with contractual relations interference with contract rights...." FN7 28 U.S.C. § 2680(h) (emphasis added). *9 Plaintiff contends that the FSA or its employee, Ms. Dunbar, intentionally interfered with its CRP contract FN7. While 28 U.S.C. § 2680(h) does contain a by knowingly allowing a person or entity who was not a proviso which includes certain claims within the party to the contracts, in this case Booth, to cancel waiver of sovereign immunity, the proviso relates Contract 334. As a result of this intentional interference only to specified claims against federal with contractual relations, Plaintiff contends that it has investigative or law enforcement officers and is suffered monetary damages. not applicable to this case.

The United States has been substituted as the party defendant in place of Clara Dunbar pursuant to the An intentional interference with contractual relations Westfall Act, 28 U.S.C. § 2679. This act immunizes claim is expressly exempted from the FTCA.FN8 This federal employees from liability for torts committed within means that the United States and its agencies continue to the scope of their employment. When a federal employee have sovereign immunity from this claim. Because commits such a tort, any private remedy for the tort must sovereign immunity is not waived for the intentional be sought against the United States under the Federal Tort interference with contractual relations claim, the Court Claims Act ("FTCA"). 28 U.S.C. §§ 1346(b), 2672. In lacks subject matter jurisdiction to consider that claim. See light of the W estfall substitution, Plaintiff's tort and JBP Acquisitions, LP v. U.S. ex rel. F.D.I.C., 224 F.3d negligence claims are now deemed a tort action against the 1260, 1264 (11th Cir.2000) ("If the alleged conduct falls United States under the FTCA. within one of these statutory exceptions [to the consent to be sued], the court lacks subject matter jurisdiction over The doctrine of sovereign immunity bars suit against the action."). Accordingly, Plaintiff's intentional the United States without its consent. The waiver of interference with contractual relations claim is dismissed sovereign immunity must be unequivocally expressed, and for lack of subject matter jurisdiction.FN9

Congress in fact expressed a limited waiver in the FTCA, which provides in part that: FN8. A number of courts have held that a claim for interference with contractual relations is not [T]he district courts ... shall have exclusive jurisdiction within the scope of the FTCA, including the of civil actions on claims against the United States, for Eighth Circuit, Selland v. United States, 966 money damages ... for injury or loss of property, or F.2d 346 (1992), Ninth Circuit, Goodman personal injury or death caused by the negligent or Group, Inc. v. Dishroom, 679 F.2d 182 (1982), wrongful act or omission of any employee of the and Third Circuit, Small v. United States, 333 Government while acting within the scope of his office F.2d 702 (1964). or employment, under circumstances where the United States, if a private person, would be liable to the FN9. "A federal court not only has the power but claimant in accordance with the law of the place where also the obligation at any time to inquire into the act or omission occurred.

jurisdiction whenever the possibility that claim because Plaintiff failed to exhaust its administrative jurisdiction does not exist arises." Fitzgerald v. remedies as required by 28 U.S.C. § 2675(a). Plaintiff Seaboard Sys. R. R., Inc., 760 F.2d 1249, 1251 states in response that it did not have an opportunity prior (11th Cir.1985). to filing its complaint to submit the administrative claim under § 2675(a) because it was not until the United States E. Intentional breach of contract substituted itself as a defendant that it was first admitted that Ms. Dunbar was acting within the course and scope of *10 Plaintiff's next claim is for intentional breach of her employment during the events that gave rise to the contract. According to Plaintiff, as a party to the CRP claims of negligence. contracts, the FSA or its employee, Ms. Dunbar, breached the contracts by allowing Booth, a non-party, to cancel While a Westfall Act certification carries a rebuttable Contract 334. Plaintiff states that as a result of Ms. presumption that the employee has absolute immunity Dunbar's intentional breach of contract, it has been from suit and that the United States is to be substituted as damaged in the amount of $21,898.80. the defendant, Plaintiff has not sought to rebut the

The Tucker Act, 28 U.S.C. § 1346(a), waives certification's claim that Ms. Dunbar was working within sovereign immunity for some suits against the United the scope of her employment when the actions relating to States based on claims founded upon an express or the CRP contracts were taken. Upon substitution of the implied contract. Under the Tucker Act, the district courts United States, the Westfall Act provides that the action have concurrent jurisdiction with the United States Court "shall proceed in the same manner as any action against of Federal Claims for claims not exceeding $10,000. The the United States filed pursuant to section 1346(b) of this Court of Federal Claims has exclusive jurisdiction over title and shall be subject to the limitations and exceptions contract claims against the United States where the claim applicable to those actions." 28 U.S.C. § 2679(d)(4). exceeds $10,000. See 28 U.S.C. § 1491(a)(1); Friedman v. United States, 391 F.3d 1313, 1315 (11th Cir.2004); *11 The FTCA provides that: Enlow v. United States, 161 Fed.Appx. 837, 841 (11th Cir.2006) (unpublished) (holding that the district court An action shall not be instituted upon a claim against lacked jurisdiction to hear a breach of contract claim the United States for money damages for injury or loss where the claim was for $2 million). of property or personal injury or death caused by the negligence or wrongful act or omission of any employee Since Plaintiff's claim exceeds $10,000, jurisdiction of the Government while acting within the scope of his over the breach of contract claim lies exclusively in the office or employment, unless the claimant shall have Court of Federal Claims. This Court does not have subject first presented the claim to the appropriate Federal matter jurisdiction over Plaintiff's breach of contract agency and his claim shall have been finally denied by claim, and it is hereby dismissed. the agency in writing and sent by certified or registered mail.

28 U.S.C. § 2675(a).

Plaintiff's final tort claim is one for negligence.

According to Plaintiff, Defendants were negligent in their The fact that Plaintiff allegedly did not know that Ms. failure to document that Booth became a successor in Dunbar was acting within the scope of her employment interest prior to allowing Booth to cancel Contract 334, or until the Westfall certification was filed and the United in the alternative, they were negligent in allowing Booth States was substituted as a defendant does not relieve to cancel Contract 334. Plaintiff contends that it has Plaintiff of its obligation to exhaust its administrative suffered monetary damage as a result of this alleged remedies. In the highly publicized case of Wilson v. Libby, negligence. 535 F.3d 697 (D.C.Cir.2008), where former CIA operative

In their motion for summary judgment, Defendants Valerie Plame Wilson and her husband, Joseph Wilson, have asked the Court to dismiss Plaintiff's negligence

F. Negligence

sued the United States, former Vice President Cheney, and (11th Cir.1984). The exhaustion requirement applies to others for publicly disclosing Mrs. Wilson's covert cases in which the United States is substituted as the party operative status, the plaintiffs alleged a tort claim for defendant. 28 U.S.C. § 2679(d)(4). Plaintiff did not rebut public disclosure of private facts. With respect to that the certification or show that any exception to Westfall claim, the United States made a certification pursuant to immunity should apply to this case.FN11 There is no the Westfall Act that the individual defendants were acting question that Plaintiff did not exhaust its administrative within the scope of their employment as employees of the remedies as to the negligence claim as required by the United States at the time of the conduct alleged in the FTCA. Plaintiff's negligence claim must be dismissed for amended complaint. The circuit court stated that while the lack of subject matter jurisdiction. certification carries a rebuttable presumption that the employee has absolute immunity and that the United FN11. There are two exceptions to the immunity States is to be substituted as a defendant, "[i]f the provided by the W estfall Act. The United States presumption is not rebutted in this case, the case must be cannot be substituted as a defendant for claims dismissed because the Wilsons have not exhausted their against federal employees brought for violation administrative remedies as required to pursue a claim of the United States Constitution, 28 U.S.C. § against the United States pursuant to the Federal Tort 2679(b)(2), or for the violation of a federal Claims Act." Id. at 711 (citation omitted). Unlike Plaintiff statute, 28 U.S.C. § 2679(b)(2)(B). in this case, the Wilsons sought to rebut the certification's claim that the defendants were working within the scope G. Attorney's fees and costs of litigation of their employment. The circuit court ultimately found that the defendants were acting within the scope of their *12 As the Court has found that Defendants are employment when the disclosure of Ms. Wilson's identity entitled to summary judgment on Plaintiff's claims, or in was made, which meant that the certification was proper the alternative, that Plaintiff's claims must be dismissed for and the United States was to be substituted as a defendant. lack of jurisdiction, Defendants' motion for summary Since the plaintiffs failed to exhaust their administrative judgment on Plaintiff's request for attorney's fees and other remedies under the FTCA for the tort claim, the court expenses is granted. upheld the district court's dismissal of the amended IV. CONCLUSION complaint. Id. at 712-713. The fact that the United States was a substituted defendant under the Westfall Act had no The Court GRANTS Defendant's Motion for effect on the court's decision that exhaustion was Summary Judgment (Docs. 29 and 41), and DENIES required.FN10 Plaintiff's Motion for Summary Judgment (Doc. 31).

Plaintiff's Request for Oral Argument (Doc. 45) is denied

FN10. Other cases where the court has dismissed as moot. a tort claim for failure to exhaust administrative SO ORDERED. remedies after a Westfall substitution of the United States as a defendant has been made M.D.Ga.,2009. include Rector v. United States, 243 Fed.Appx. 976 (6th Cir.2007) (unpublished), Singleton v. Balfour Land Co., L.P. v. U.S.

United States, 277 F.3d 864 (6th Cir.2002), Slip Copy, 2009 WL 1796068 (M.D.Ga.) Lumarse, Inc. v. Dep't of Health and Human END OF DOCUMENT Servs., 191 F.3d 460 (9th Cir.1999), and Sullivan v. United States, 21 F.3d 198 (7th Cir.1994).

The requirement that the claimant first present its claim to the appropriate agency is jurisdictional and cannot be waived. Lykins v. Pointer, Inc., 725 F.2d 645 admits that he never had a properly secured security Only the Westlaw citation is currently available. interest in the livestock. See Plaintiff's Memorandum of Law in Opposition to Motion to Dismiss at 8 ("Pl.'s United States District Court, N.D. New York. Mem."), docket No. 18.FN1 The proceeds of the auction, which plaintiff alleges belong to him, were held in escrow Pasquale CASABURI, Plaintiff, due to the bankruptcy of Ramos, and a "lien claim" by v. defendant USDA. Compl. at ¶ 11--12. On June 27, 1996, UNITED STATES DEPARTMENT OF Chief Bankruptcy Judge Stephen D. Gerling ordered the AGRICULTURE (a/k/a Farm Services Agency, f/k/a/ funds from the sale of the livestock turned over to the FHA) and Northern New York Farmers Market USDA. See USDA Memorandum of Law, Exhibit B

Cooperative, Defendants. thereto. Plaintiff brings suit, alleging that the USDA "is No. 97--CV--1439 NPM DNH. wrongfully holding the proceeds" of the auction, Compl. at ¶ 17, and further alleges pendent party state law claims Dec. 11, 1998. against the Co--Op for breach of contract and conversion Durr, Riley Law Firm, Lowville, New York, for Plaintiff, of the proceeds from the auction which were not turned Daniel R. King, of counsel. over to plaintiff, but to the USDA. See Compl. at ¶¶ 21, 24. The USDA moves to dismiss for lack of subject matter Honorable Thomas J. Maroney, United States Attorney, jurisdiction pursuant to Federal Rule of Civil Procedure Northern District of New York, Syracuse, New York, for 12(b)(1).

Defendant United States Department of Agriculture. FN1. None of the papers plaintiff submitted to the court had page numbers, in direct Richard J. Graham, Lowville, New York, for Defendant contravention of Local Rule 10.1(a). For Northern New York Farmers Cooperative. convenience, the court has taken the liberty of numbering these papers.


A. Plaintiff's Claim Against the USDA

MCCURN, Senior J. "[I]t is common ground that in our federal system of William F. Larkin, Assistant U.S. Attorney, of counsel.


*1 Currently before the court are motions by limited jurisdiction any party or the court sua sponte, at defendants United States Department of Agriculture any stage in the proceedings, may raise the question of ("USDA") and Northern New York Farmers Market whether the court has subject matter jurisdiction." United Cooperative ("Co--Op") to dismiss the complaint. Because Food & Commercial Workers Union v. CenterMark the court lacks subject matter jurisdiction over this action, Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d the court dismisses the complaint in the entirety. Cir.1994) (internal citations omitted). Federal Rule of


Civil Procedure 12(h)(3) mandates dismissal of an action if it appears that the court lacks subject matter jurisdiction.

Plaintiff claims that he delivered livestock to farmer See Fed.R.Civ.P. 12(h)(3); McGregor v. Goord, 18 Dean Ramos ("Ramos") worth $49,040.00 between F.Supp.2d 204, 206 (1998) (McAvoy, C.J.). It is plaintiff's September 1994 and November 1995. See Compl. at ¶ 4, "burden to show that the Court may properly exercise 6. Ramos made a total of $24,000.00 worth of payments subject matter jurisdiction." McGregor, 18 F.Supp.2d at to plaintiff. See id. at ¶ 6. On January 5, 1996 the livestock 206 (citing In re Joint E. & So. Dist. Asbestos Litigation, was auctioned off by the Co--Op. See id. at ¶ 10. Plaintiff 14 F.3d 726, 730 (2d Cir.1993)). " 'Without jurisdiction the court cannot proceed at all in any case. Jurisdiction is See Castro v. United States, 34 F.3d 106, 110 power to declare the law, and when it ceases to exist, the (2d Cir.1994). Under New York law, a " 'denial only function remaining to the court is that of announcing or violation of the plaintiff's dominion, rights, or the fact and dismissing the cause." ' Steel Co. v. Citizens possession, is the basis of an action for for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, conversion." ' In re Chateaugay Corp., 10 F.3d 1012, 140 L.Ed.2d 210 (1998) (quoting Ex parte 944, 957 (2d Cir.1993) (quoting Sporn v. MCA McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 Records, Inc., 58 N.Y.2d 482, 487, 462 (1868)). "The requirement that jurisdiction be established N.Y.S.2d 413, 415, 448 N.E.2d 1324, 1326 as a threshold matter 'spring[s] from the nature and limits (1983)). "A conversion implies a wrongful act, a of the judicial power of the United States' and is misdelivery, a wrongful disposition, or 'inflexible and without exception." ' Id. (quoting withholding of the property." Magnin v. Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382, Dinsmore, 70 N.Y. 410, 417 (1877) (emphasis 4 S.Ct. 510, 511, 28 L.Ed. 462 (1884)) (alteration in supplied). Plaintiff's allegation that the USDA is original). "wrongfully holding the proceeds" of the auction *2 Plaintiff alleges that the USDA "is wrongfully is clearly an action for conversion, as defined by holding the proceeds" of the auction, Compl. at ¶ 17, and the New York Court of Appeals. See id. that it "did not have a perfected lien upon the animals at issue and therefore was not entitled to being treated with An action shall not be instituted upon a claim against priority status in the bankruptcy of the debtor, Dean the United States for money damages for injury or loss Ramos." Pl.'s Mem. at 3. Despite plaintiff's protestations of property or personal injury ... unless the claimant to the contrary,FN2 he is alleging a cause of action for shall have first presented the claim to the appropriate conversion against the USDA.FN3 See In re Chateaugay Federal agency and his claim shall have been finally Corp., 10 F.3d 944, 957 (2d Cir.1993). Because plaintiff denied by the agency in writing and sent by certified or alleges that employees of the United States committed a registered mail. tort, conversion, his cause of action against the USDA is governed by the Federal Tort Claims Act ("FTCA"), 28 28 U.S.C. § 2675(a). As the Supreme Court has U.S.C. §§ 1346(b), 2401(b) and 2671--2680.FN4 Section recognized, "given the clarity of [section 2675(a) ], it is 2675(a) of that act imposes an absolute presentment certainly not a 'trap for the unwary' ... [and] the risk that requirement which plaintiff must satisfy before he may a lawyer will be unable to understand the [presentment] obtain jurisdiction in this court to sue the United States: requirement is virtually nonexistent." McNeil v. United States, 508 U.S. 106, 113 S.Ct. 1980, 1984, 124 FN2. See Pl.'s Mem. at 2--3, 5, 8. L.Ed.2d 21 (1993). However, this "virtually nonexistent" possibility has come about, because, as FN3. It is significant to note that plaintiff's plaintiff concedes, he failed to present his claim as complaint and opposition papers fail to specify section 2675(a) plainly requires.FN5 Having failed to what cognizable cause of action exists against the satisfy the presentment requirement, plaintiff's action USDA, other than conversion. Thus, because may not be maintained, because the court lacks subject plaintiff fails to set forth what cause of action he matter jurisdiction. See Millares Guiraldes De Tineo v.. does bring against the USDA, the court may United States, 137 F.3d 715, 720 (2d Cir.1998) (district alternatively dismiss his action for failure to state court lacks subject matter jurisdiction to entertain claim a claim upon which relief can be granted, not previously presented to the agency pursuant to 28 pursuant to Rule 12(b)(6). U.S.C. § 2675(a)). Accordingly, plaintiff's claim against the USDA must be dismissed.FN6

FN4. The FTCA requires the court to apply the FN5. As previously discussed, plaintiff futilely substantive law of the place where the act which argues that his cause of action against the USDA constitutes the tort occurred, here, New York. is neither conversion nor any other tort which is within the ambit of the FTCA, but fails to specify what then comprises his cause of action. Casaburi v. U.S. Dept. of Agr.

Not Reported in F.Supp.2d, 1998 WL 887278 (N.D.N.Y.)

FN6. The court observes that even if plaintiff END OF DOCUMENT were to now present the claim as required, see 28 U.S.C. § 2675(a), his action would be barred by the applicable statute of limitations. Section 2401(b) of 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) (emphasis added). The proceeds from the sale of the livestock were turned over to the USDA pursuant to the bankruptcy court's June 27, 1996 Order. The cause of action accrued upon the USDA taking possession of the same. Thus, the statute of limitations has expired.

B. Plaintiff's Claims Against the Co--Op

Plaintiff also alleges state law causes of action against the Co--Op. Neither in his complaint nor in his other papers does plaintiff assert the jurisdictional basis for his state law claims. Presumably plaintiff seeks to have this federal court exercise "pendent party" jurisdiction over the Co--Op. See 28 U.S.C. § 1367(a). In order to have such jurisdiction, however, the court must otherwise possess, or have possessed, original jurisdiction over another claim against the same or another defendant. See id. As the court has no subject matter jurisdiction over the claim against the USDA, the court has no pendent party jurisdiction over the Co--Op. Consequently, plaintiff's claims against the Co--Op must also be dismissed.


*3 For all of the foregoing reasons, it is hereby ORDERED that plaintiff's complaint be DISMISSED in its entirety.FN7

FN7. Inasmuch as the court dismisses plaintiff's action for lack of subject matter jurisdiction, it need not reach defendants' remaining arguments.



problems, which he claims has not only exacerbated his physical pain, but also may have left him sterile. Defendants now move to dismiss the complaint pursuant Only the Westlaw citation is currently available. to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), This decision was reviewed by West editorial staff or, in the alternative, for summary judgment pursuant to and not assigned editorial enhancements. Rule 56.FN1 Defendants have represented to the Court that they served plaintiff with the motion and accompanying United States District Court, documentation (Docket # 48), but plaintiff has not filed any opposition.

E.D. New York. FN1. The motion has been brought on behalf of Kevin DOWDY, Plaintiff, the United States, the United States Bureau of v. Prisons ("USBOP"), the United States Public P.A. HERCULES, U.S.H.P.S.; P.A. Annessa,: Health Service ("USPHS"), and all of the current U.S.H.P.S.; DR. Francin, M.D., U.S.H.P.S.; DR. and former employees of both agencies identified Borecky, M.D., U.S.H.P.S.; DR. R. Beaudouin, M.D., by name in the case caption, with the exception U.S.H.P.S.; Doe # 1; DR. D. Marini, M.D., U.S.H.P.S.; of defendant Shull, who was never served with K. Bruno, RN, U.S.H.P.S.; PA-C S. Liberty, U.S.H.P.S.; process. Given the commonality of issues, PA-C B. Cink, U.S.H.P.S.; RPA-C B. Shull, U.S.H.P.S.; however, the claims against Shull are dismissed E. Hughes, Aprn, DC-FNP, U.S.H.P.S.; E. Sweatt, Rpa, with prejudice. See Parts 3b and 4b, infra. Asha, U.S.H.P.S.; Doe # 2; Doe # 3; Does # 4 To # 25;

The Federal Bureau of Prisons; The United States The Court finds, for the reasons described below, that Public Health Service and The United States of all of plaintiff s claims fail as a matter of law, with the America, Defendants. exception of one Bivens claim against defendant Doe # 3. No. 07-CIV-2488(EVEN) (LB).

Jan. 15, 2010.

Kevin Dowdy, Minersville, PA, pro se. The following allegations are drawn from the text of the complaint and are considered true for the purposes of Artemis Lekakis, United States Attorney's Office, the motion.

Brooklyn, NY, for Defendants. Plaintiff alleges that he contracted tuberculosis while in custody at Lackawana County Prison in MEMORANDUM AND ORDER Pennsylvania.FN2 (Compl.¶¶ 13-14.) On June 18, 2004, plaintiff was transferred to the Metropolitan Detention VITALIANO, District Judge. Center in Brooklyn, New York ("MDC"). (Id. ¶ 16.) Upon


*1 Plaintiff Kevin Dowdy, a federal prisoner arrival, Dowdy was given a medical examination by appearing pro se, brings this action pursuant to the Federal defendant physician assistant Hercules, but she "failed to Torts Claims Act, Bivens v. Six Unknown Named Agents recognize" his outward signs of having tuberculosis. (Id. of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, ¶ 17.) Plaintiff also alleges that he received a "PPD" 29 L.Ed.2d 619 (1971), and 42 U.S.C. §§ 1983 and 1985 injection to test for the presence of the disease. (Id.) On against United States prison employees and medical staff, June 20, 2004, defendant Doe # 1, who plaintiff believes alleging negligence and violation of his Eighth to be defendant Annessa (id. ¶ 19), examined the injection Amendment rights. Specifically, Dowdy seeks $60 million site and noticed an abnormal reaction, but improperly in damages for defendants' alleged failure to properly attributed it to prior vaccinations, not tuberculosis. (Id. ¶ diagnose and treat his tuberculosis and other health 18.) Dowdy was then examined by defendant Dr. Francin, to remedy this "medication experimentation", but he did who, after stating her belief that Dowdy had the disease, not get any relief. (Id. ¶ 29.) After nine months, he saw an ordered chest x-rays and administered a blood test. (Id. ¶ outside urologist, who examined what turned out to be a 19.) Although still showing symptoms two days later, testicular cyst and ordered him to sleep with heating pads plaintiff was moved from the medical intake unit to to alleviate the pain. (Id. ¶ 32.) Although Dowdy general population at MDC. (Id. ¶ 20.) He routinely requested permission to have a heating pad, defendant Doe complained to the prison staff who administered # 3, the assistant warden of Raybrook, refused. (Id.) medication to inmates, but his pleas were ignored. (Id. ¶ 21.) Dowdy claims to be in poor health, suffering from severe pain and "fear" that his delay and/or lack of FN2. Plaintiff brought a separate civil rights treatment has led to sterility. (Id. ¶¶ 33-34.) He asserts that action in the Middle District of Pennsylvania defendants, both "as individuals" and in their "official arising out of his alleged contraction of the capacities", "maliciously" and "negligently" misdiagnosed disease and subsequent inadequate medical his condition (id. ¶ 2), and withheld necessary medical treatment at Lackawana County Prison, but his treatments. (Id. ¶ 1.) On May 4, 2007, he filed the complaint was dismissed for failure to file within complaint in the current action seeking $10 million in the applicable statute of limitations. See Dowdy compensatory damages and $50 million in punitive v. Donate, 07-CV-0863 (M.D. Pa. filed Aug. 15, damages. (Id. ¶¶ 35-38.) 2008) (J. Muir).

Two weeks later, Francin informed Dowdy that he had tuberculosis, and gave him the option of starting The Court discerns from the complaint four alleged treatment immediately or waiting until he reached the theories of liability: (1) the failure of Hercules and Doe # facility where he would serve his sentence. (Id. ¶ 22.) 1 at MDC to immediately diagnose tuberculosis; (2) the When Dowdy requested that treatment begin as soon as delay of treatment by Francin at MDC, Doe # 2 at possible, Francin "was not pleased" and no medication or Raybrook, and other unspecified defendants; (3) the "medical attention" was dispensed for another three inadequacy of treatment provided by unspecified weeks. (Id. ¶¶ 22-23.) At that point, Dowdy once again defendants; and (4) the denial of the pain-alleviating met with Francin, who explained that more blood tests heating pad by Doe # 3 at Raybrook. Aside from Hercules, were necessary and provided treatment consent forms. (Id. Francin, and Does # 1-3, no defendants in the case caption ¶ 24.) However, one day after this meeting, on or about are referenced or discussed in the body of the complaint. July 30, 2004, Dowdy was transferred out of MDC to the The Court is mindful that pro se submissions are Federal Correctional Institution in Raybrook, New York "held to less stringent standards than formal pleadings ("Raybrook"). (Id. ¶ 25.) drafted by lawyers", Erickson v. Pardus. 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (internal *2 Upon arrival, Dowdy explained to defendant quotation marks omitted), particularly when allegations physician assistant Doe # 2 that he had received no concern civil rights violations. Sealed Plaintiff v. Sealed treatment for his tuberculosis, and that he was suffering Defendant, 537 F.3d 185, 191 (2d Cir.2008);. McEachin from severe testicular pain. (Id. ¶ 26.) Despite the efforts v. McGuinnis, 357 F.3d 197, 200 (2d Cir.2004). of his mother and an outside doctor to contact Raybrook Consequently, Dowdy's pro se complaint must be read on his behalf, Dowdy did not receive any treatment for liberally and interpreted as raising the strongest arguments approximately four more weeks. (Id. ¶¶ 26-27.) Over the it suggests. Triestman v. Fed-Bureau of Prisons, 470 F.3d course of the following six months, Dowdy took a variety 471, 474-75 (2d Cir.2006). In light of this "special of medications for his multiple ailments, but such solicitude", Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir.1994), treatment either had no effect or exacerbated his pain. (Id. the Court concludes that Dowdy's complaint does state ¶¶ 27-29.) Plaintiff filed numerous administrative requests potentially valid claims for relief. Dowdy not only alleges that defendants' inadequate medical attention deprived him


of his constitutional right to be free of cruel and unusual bringing suit, and matters of which judicial notice may be punishment, but also that defendants were simply taken. See Chambers v. Time Warner. Inc., 282 F.3d 147, incompetent, effectively committing medical malpractice 153 (2d Cir.2002); Int'l Audiotext Network, Inc. v. Am. by "negligently ... withholding necessary medical Tel.. & Tel. Co., 62 F.3d 69, 72 (2d Cir.1995). treatment." (Compl.¶ 2.)

Rule 12(b)(1) motions to dismiss based on lack of 1. Standards of Review subject matter jurisdiction, however, do not require the court to draw all reasonable inferences in favor of *3 Fed R. Civ. P. 8(a)(2) requires a "short and plain plaintiffs. See J.S. ex rel. N.S. v. Attica Cent. Schs., 386 statement of the claim showing that the pleader is entitled F.3d 107, 110 (2d Cir.2004); Shipping Fin. Servs. Corp v. to relief." This rule does not compel a litigant to supply Drakos, 140 F.3d 129, 131 (2d Cir.1998). Further, "[i]n "detailed factual allegations" in support of his claims, Bell resolving the question of jurisdiction, the district court can Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. refer to evidence outside the pleadings and the plaintiff 1955, 167 L.Ed.2d 929 (2007), "but it demands more than asserting subject matter jurisdiction has the burden of an unadorned, the-defendant-unlawfully-harmed-me proving by a preponderance of the evidence that it exists." accusation," Aschcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. Hamm v. United States, 483 F.3d 135, 137 (2d Cir.2007) 1937, 1949, 173 L.Ed.2d 868 (2009). "A pleading that (quoting Luckett v. Bure, 290 F.3d 493, 496-97 (2d offers 'labels and conclusions' ... will not do.' " Id. Cir.2002); see LeBlanc v. Cleveland, 198 F.3d 353, 356 (quoting Twombly, 550 U.S. at 555); see also In re NYSE (2d Cir.1999) (noting that "where jurisdictional facts are Specialist Sec. Litig., 503 F.3d 89, 95 (2d Cir.2007). "Nor placed in dispute, the court has the power and obligation does a complaint suffice if it tenders 'naked assertions' to decide issues of fact by reference to evidence outside devoid of 'further factual enhancement.' " Iqbal, 129 S.Ct. the pleadings"). at 1949 (quoting Twombly, 555 U.S. at 557).

To survive a Fed.R.Civ.P. 12(b) motion to dismiss, 2. Plaintiff'sFailure To Oppose Defendants' Motion the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible *4 Where, as here, the plaintiff does not oppose a on its face.' " Iqbal, 129 S.Ct. at 1949 (quoting Twombly, Rule 12 motion, the district court still must determine 555 U.S. at 570). This "plausibility standard is not akin to whether the complaint is sufficient to state a claim on a probability requirement, but it asks for more than a sheer which relief may be granted. McCall v. Pataki, 232 F.3d possibility that a defendant has acted unlawfully." Id. 321, 322-323 (2d Cir.2000); Pickett v. Leclaire, 2009 U.S. (internal quotations omitted); see Iqbal v. Hasty, 490 F.3d Dist. LEXIS 96947, 2009 WL 3320676 at *3 (S.D.N.Y. 143, 157-58 (2d Cir.2007) (interpreting Twombly to Oct. 13, 2009). If a pleading contains sufficient factual require a "plausibility standard" that "obliges a pleader to matter, accepted as true, to show potential entitlement to amplify a claim with some factual allegations in those relief, "the plaintiff's failure to respond to a Rule 12(b)(6) contexts where such amplification is needed to render the motion does not warrant dismissal." McCall, 232 F.3d at claim plausible") (emphasis omitted), rev'd on other 323. grounds, --- U.S. ----, 129 S.Ct. 1937, 173 L.Ed.2d 868 Defendants have, in the alternative, moved for (2009). On a Rule 12(b)(6) motion, the Court must accept summary judgment, and in that connection have submitted as true all factual statements alleged in the complaint and a declaration and Local Rule 56.1 and 56.2 statements. draw all reasonable inferences in favor of the nonmoving Pursuant to Fed.R.Civ.P. 12(d), the Court has discretion to party. Vietnam Ass'n for Victims of Agent Orange v. Dow consider additional materials and "convert a motion for Chem. Co., 517 F.3d 104, 115 (2d Cir.2008). The court judgment on the pleadings to a motion for summary may only consider the pleading itself, documents that are judgment if the Court deems it necessary to refer to referenced in the complaint, documents that the plaintiff matters outside of the pleadings." In re Risk Mgmt. relied on in bringing suit and that are either in the Alternatives, Inc., 208 F.R.D. 493, 500 (S.D.N.Y.2002); plaintiff's possession or that the plaintiff knew of when see Mitchell v. Dep't of Corr., 2008 U.S. Dist. LEXIS 24830, at *9-*12 (S.D.N.Y. Feb. 20, 2008). Here, the act or omission occurred." 28 U.S.C. § 1346(b). The however, in light of plaintiff s incarceration, his pro se FTCA makes a lawsuit against the United States itself the status, and the lack of any discovery, the Court declines to exclusive remedy for common law tort actions against convert defendants' motion. See Perez v. Hawk, 302 federal agencies or employees acting on behalf of the F.Supp.2d 9, 16 (E.D.N.Y.2004) (refusing to convert to government. 28 U.S.C. § 2679(b) (1); see Rivera v. United summary judgment motion where plaintiff was pro se States, 928 F.2d 592, 608-09 (2d Cir.1991); Rodriguez v. prisoner asserting Bivens claim for inadequate medical United States, 2001 U.S. Dist. LEXIS 19876, at *6 care); see also Meadows v. Planet Aid, Inc., 2009 U.S. (E.D.N.Y. Nov. 5, 2001); see also Baez v. Bureau of Dist. LEXIS 104671, 2009 WL 3734316 at *21 (E.D.N.Y. Prisons, 2004 U.S. Dist. LEXIS 8183, 2004 WL 1777583 Nov. 4, 2009) (finding conversion to summary judgment at *21-*22 (S.D.N.Y. May 11, 2004) (noting that the inappropriate "since Plaintiff is pro se and has not yet had FTCA "requires that suit be brought against the United an opportunity to conduct any discovery"). States itself, not against individual defendants or agencies"). To the extent that the complaint states causes 3. Tort Claims of action sounding in tort against defendant agencies

USBOP and USPHS, or against any of the individual a) Tort Claims Against USBOP, USPHS, and Individuals defendants acting in their official capacity-i.e., acting In Their Official Capacity within the scope of their employment-those claims are dismissed with prejudice for lack of subject matter It is well established that "the United States, as jurisdiction. See, e.g., Sereika v. Patel, 411 F.Supp.2d sovereign, is immune from suit save as it consents to be 397, 409 (S.D.N.Y.2006) (dismissing FTCA claims sued." Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. against Bureau of Prisons for lack of subject matter 2698, 2701, 69 L.Ed.2d 548 (1981) (internal quotation jurisdiction). marks and citations omitted). Therefore, "[a]bsent a waiver, sovereign immunity shields the Federal b) Tort Claims Against Individual Defendants in their Government and its agencies from suit," FDIC v. Meyer, Non-Official Capacities 510 U.S. 471, 475, 114 S.Ct. 996, 1000, 127 L.Ed.2d 308 (1994), as such waiver is a "prerequisite" for subject *5 As implied by the text of the FTCA, lawsuits matter jurisdiction in federal district courts. United States against federal employees arising out of actions taken L.Ed.2d 580 (1983); Presidential Gardens Assocs. v. face no sovereign immunity obstacles, because such United States, 175 F.3d 132, 139 (2d Cir.1999). claims are against those individuals, not the United States. Moreover, sovereign immunity also extends to officers of See Gutierrez De Martinez v. Lamagno, 515 U.S. 417, government employees when they "act in their official 420, 115 S.Ct. 2227, 2229, 132 L.Ed.2d 375 (1995) ("[I]f capacities", Dotson v. Griesa, 398 F.3d 156, 177 (2d the [federal] employee was acting outside the scope of his Cir.2005), because such actions are "essentially a suit employment, the plaintiffs' tort action could proceed against the United States." Robinson v. Overseas Military against him."). Here, although Dowdy purports to bring Sales Corp., 21 F.3d 502, 510 (2d Cir.1994). claims against defendants both in their "official capacities" and "as individuals" (Compl.¶¶ 1-4), the complaint does The Federal Tort Claims Act ("FTCA") is a limited not allege any common law tort committed by any waiver of sovereign immunity applying to "claims against individual defendant-all of whom are USBOP and USPHS the United States, for money damages ... for injury ... employees-separate and apart from acts or omissions caused by the negligent or wrongful act or omission of any within the scope of their employment duties in treating employee of the Government while acting within the scope prisoners and/or making decisions regarding their of his office or employment, under circumstances where welfare.FN3 Moreover, there is simply no indication that the United States, if a private person, would be liable to plaintiff intended to bring tort claims either (a) based on the claimant in accordance with the law of the place where conduct outside of the scope of these defendants' v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 2965, 77 outside of the scope of their federal employment would employment, or (b) against any "Doe" defendants not and cause of his injury." Moreno-Ortiz v. United States, employed by the federal government. Accordingly, any 2009 U.S. Dist. LEXIS 14396, at *6 (S.D.N.Y. Feb. 24, and all tort claims against defendants in their individual 2009) (citing United States v. Kubrick, 444 U.S. 111, 120, capacities are dismissed. 100 S.Ct. 352, 358, 62 L.Ed.2d 259 (1979)). Accepting

FN3. The simple fact that plaintiff has alleged the allegations in the complaint as true, plaintiff was aware that defendants have engaged in intentional torts of the existence and cause of his injuries at MDC by "does not compel the conclusion that the Autumn 2004, when he was transferred to Raybrook employee was acting outside the scope of without commencement of treatment. (Compl.¶ 26.) There employment" under New York law, which is no evidence of any other Form 95 filed by plaintiff or of applies to the instant FTCA claims. Griebsch v. any administrative claim relating to his treatment. In short, Weaver. 2005 U.S. Dist. LEXIS 44250, 2005 Dowdy cannot escape his failure to timely file an WL 2260374 at *7 (N.D.N.Y. Sept. 16, 2005). administrative claim based on the conduct at issue in this lawsuit. Consequently, the Court is without jurisdiction to

c) FTCA Claims Against The United States hear his FTCA claims against the United States, and such claims are hereby dismissed with prejudice. See, e.g.,

Although the United States is the proper named Sereika, 411 F.Supp.2d at 409-10 (dismissing FTCA claim defendant in a FTCA claim, the Court is nonetheless for failure to present claim to the Bureau of Prisons within without subject matter jurisdiction to hear Dowdy's claim the two year statute of limitations). on the merits because, under the FTCA, "[a] tort claim against the United States shall be forever barred unless it 4. Constitutional Claims is presented in writing to the appropriate Federal agency within two years after such claim accrues...." 28 U.S.C. § *6 Plaintiff also invokes Bivens, which permits 2401(b). This administrative exhaustion requirement is damages actions against individual federal officers who jurisdictional and cannot be waived. See Celestine v. violate clearly established constitutional rights while Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, acting under color of federal law. 403 U.S. 388, 91 S.Ct. 82 (2d Cir.2005) (citing McNeil v. United States, 508 U.S. 1999, 29 L.Ed.2d 619; Robinson, 21 F.3d at 510. 106, 113, 113 S.Ct. 1980, 1984, 124 L.Ed.2d 21 (1993)). Specifically, he alleges an unjustified denial of proper The burden is on plaintiff to demonstrate subject matter medical care, which constitutes a violation of the Eighth jurisdiction in compliance with the FTCA's requirements. Amendment where "prison official[s] acted with In re Agent Orange Prod. Liab. Litig., 818 F.2d 210, 214 'deliberate indifference' to the inmate's 'serious medical (2d Cir.1987); see also Adelke v. United States, 355 F.3d needs.' " Sereika, 411 F.Supp.2d at 404 (quoting Estelle 144, 153 (2d Cir.2004) (noting that this "procedural v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291, 50 hurdle applies equally to litigants with counsel and to L.Ed.2d 251(1976)). However, Bivens claims are only those proceeding pro se" ). permitted when brought against federal officials in their

On April 20, 2007, Dowdy filed a "Form 95" individual capacity, because the United States has not administrative claim against MDC, seeking $25,000 in waived sovereign immunity for "constitutional tort claims damages for personal injury arising out of the "Medical against the United States, its agencies, or federal Staff's negligence and refusal to begin immediate employees sued in their official capacities." Hawk, 302 treatment of the TB". (Declaration of Adam M. Johnson, F.Supp.2d at 18; see Robinson, 21 F.3d at 510 (dismissing Ex. C.) Dowdy listed the date of the incident giving rise to Bivens claims against federal employees acting in their his claim as "on[ ] or about 6/20/04". Therefore, he was official capacities on grounds of sovereign immunity); required to file his administrative claim by June 20, 2006 Sereika, 411 F.Supp.2d at 402 (noting that "a Bivens claim to comply with the FTCA. Even if the Court were to against a federal agency is precluded"). Accordingly, any disregard plaintiff's self-report of the date of injury, a purported Bivens claims against the United States, FTCA claim accrues "at the time the injury or harm is USPHS, USBOP, or any individual defendant in their inflicted, or when the plaintiff knows both the existence official capacity are dismissed.

a) Claims Against Defendants Not Discussed In The individuals were personally involved in the claimed Complaint violation of his constitutional rights, and to provide a

"short and plain" description of what each defendant

Although plaintiff purports to sue more than 30 allegedly did or failed to do. Fed.R.Civ.P. 8(a)(2); see separate individual defendants, his complaint only Shomo v. City of New York, 2009 U.S.App. LEXIS 23076, specifically discusses the actions of five: Hercules, 2009 WL 2767032 at *13 (2d Cir. Sept. 2, 2009) (quoting Francin, and Does # 1,2, and 3. "Because vicarious Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d liability is inapplicable to Bivens and § 1983 suits, a Cir.1999)) (noting that a pro se complaint should not be plaintiff must plead that each Government-official dismissed "without granting leave to amend at least once defendant, through the official's own individual actions, when a liberal reading of the complaint gives any has violated the Constitution." Iqbal, 129 S.Ct. at 1948 indication that a valid claim might be stated"); Hawk, 302 (emphasis added); see Gill v. Mooney, 824 F.2d 192, 196 F.Supp.2d at 33 (same). However, for reasons discussed (2d Cir.1987) (noting that personal involvement in below in Part 4b, certain of Dowdy's original Bivens constitutional deprivation is a prerequisite to Bivens claims have been dismissed with prejudice, for they are recovery). The requisite personal involvement can be not capable of valid amendment. demonstrated by evidence that the defendant (1) participated directly in the alleged constitutional violation; b) Claims Against Hercules, Francin, Does # 1 and # 2, or (2) had knowledge of the violation but failed to remedy and USPHS Employees the wrong; or (3) created the policy or custom under which the violation occurred; or (4) was grossly negligent in The majority of the defendants listed in the case supervising subordinates who caused the violations; or (5) caption-and every non-"Doe" individual defendant-are deliberately failed to act on information indicating that members of the USPHS. However, plaintiff cannot bring deprivations were taking place. Colon v. Coughlin, 58 Bivens claims against any individual employees of the F.3d 865, 873 (2d Cir.1995). Obviously, where the USPHS for actions that they take within the scope of their complaint does not reference individuals, much less their medical duties because Congress has provided them with personal involvement in a deprivation, claims against them absolute immunity. Section 233(a) of the Public Health should be dismissed for failure to satisfy pleading Service Act makes the FTCA the exclusive remedy for requirements. See Garcia v. Watts, 2009 U.S. Dist. LEXIS "damage for personal injury ... resulting from the 84697, at *46-*47 (S.D.N.Y. Aug. 27, 2009), adopted, performance of medical, surgical, dental, or related 2009 U.S. Dist. LEXIS 84692, 2009 WL 2777085 functions ... by any commissioned officer or employee of (S.D.N.Y. Sept. 1, 2009) ("Where, as here, a complainant the Public Health Service while acting within the scope of names a defendant in the caption but the complaint his office or employment". 42 U.S.C. § 233(a); see contains no substantive allegation against the defendant, Geralds v. Patel, 2009 U.S. Dist. LEXIS 14721, at *2-*3 dismissal of the complaint is appropriate"); see also (E.D.N.Y. Feb. 25, 2009); Brown v. McElroy, 160 Robinson v. Lindsay, 2009 U.S. Dist. LEXIS 86117, 2009 F.Supp.2d 699, 703 (S.D.N.Y.2001). The Second Circuit WL 3007920 at *8 (E.D.N.Y. Sept. 21, 2009) (dismissing interprets § 233(a) to extend to constitutional violations as Bivens claim for inadequate medical treatment where well, shielding USPHS employees from Bivens actions prisoner failed to allege named defendant's personal arising out of their employment duties. Cuoco v. involvement in deprivation of constitutional rights); Hawk, Moritsugu, 222 F.3d 99, 107-08 (2d Cir.2000); see also 302 F.Supp.2d at 19 (same). Accordingly, Dowdy's Bivens Wallace v. Dawson, 302 Fed. Appx. 52, 54 (2d Cir.2008) claims against any defendant named in the case caption ("Because [defendant] is a dentist and member of the who is not specifically discussed in the text of the Public Health Service, [plaintiff] is barred from seeking complaint are dismissed. Bivens damages for injuries allegedly caused by

*7 However, the door is not forever barred. Plaintiff [defendant] within the scope of his employment."). may, if he can, amend the complaint to plead facts The complaint lists defendants Hercules, Francin, and sufficient to give rise to an inference that other specific Annessa (presumably Doe # 1) as employees of the

USPHS.FN4 Doe # 2 is described as a physician assistant at that the claim against Doe # 3 for testicular pain Raybrook. Dowdy's allegations with regard to the conduct is precluded by the PLRA. of these defendants all clearly refer to acts or omissions within the scope of their job and medical duties in 5. § 1983 Claims attending to a prisoner's health and welfare, including providing examinations and rendering treatment. As a Plaintiff purports to bring civil rights claims against result, Hercules, Francin, Annessa/Doe # 1 and the other defendants pursuant to 42 U.S.C. § 1983, but this statute USPHS employees targeted by Dowdy are entitled to "provides relief only against defendants who act under statutory immunity under § 233 and, therefore, the Bivens color of state, not federal, law." Khan v. United States, claims against them are dismissed with prejudice. 271 F.Supp.2d 409, 412 (E.D.N.Y.2003) (citing Wheeldin

v. Wheeler, 373 U.S. 647, 650, 83 S.Ct. 1441, 1444, 10

FN4. On this jurisdictional issue, the Court also L.Ed.2d 605 (1963). As nothing in the complaint indicates considers declarations by Hercules and Annessa that plaintiff is making any claims against any state actors, stating that they were employed by USPHS at the his § 1983 are dismissed. Cf. Spinale v. U.S. Dep't of time of the alleged incidents. (Johnson Decl. Exs. Agric., 621 F.Supp.2d 112, 119 (S.D.N.Y.2009), aff'd, L, M.) 2009 U.S.App. LEXIS 26959 (2d Cir. Dec. 11, 2009)

("Where a plaintiff brings a Section 1983 claim against

c) Claim Against Doe # 3 federal defendants in error, the proper course of action is to construe the complaint as stating a cause of action under *8 The only Bivens claim yet to be addressed-and [Bivens ]."). which defendants fail to discuss in their moving papers-is 6. § 1985 Claims based on Dowdy's allegation that Doe # 3, an assistant warden at Raybrook, refused to let him use heating pads Plaintiff also purports to bring claims pursuant to 42 for his testicular pain, in direct contravention of the U.S.C. § 1985(3), which requires proof that: (1) a urologist's "order" to do so. (Compl.¶ 32.) Although a conspiracy existed; (2) for the purpose of depriving, either prisoner's constitutional right is only to the receipt of directly or indirectly, any person or class of persons equal "medical care-not the type or scope of medical care which protection or equal privileges and immunities under the he personally desires", United States ex. rel. Hyde v. laws; and a showing that (3) an act in furtherance of the McGinnis, 429 F.2d 864, 867-68 (2d Cir.1970) (quoting conspiracy occurred; (4) whereby a person is either Coppinger v. Townsend, 398 F.2d 392, 394 (10th injured in his person or property or deprived of any right Cir.1968), "a deliberate indifference claim may lie where of a citizen of the United States. See United Bhd. of prison officials deliberately ignore the medical Carpenters & Joiners, Local 610 v. Scott, 463 U.S. 825, recommendations of a prisoner's treating physicians." 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983). Moreover, a § Johnson v. Wright, 412 F.3d 398, 404 (2d Cir.2005). As 1985(3) claim requires demonstration of "some racial, or an assistant warden, Doe # 3 would not fall within the perhaps otherwise class-based, invidiously discriminatory scope of the § 233 absolute immunity. Plaintiff has animus behind the conspirators' action." Griffin v. therefore sufficiently pled a potential Bivens claim against Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 Doe # 3, and this one cause of action survives defendants' L.Ed.2d 338 (1971). The complaint is devoid of any motion to dismiss.FN5 allegations of conspiracy or discriminatory intent.

FN5. Since the Court has dismissed plaintiffs Accordingly, plaintiff's § 1985 claims are dismissed. other claims on a variety of grounds, it is not 7. § 1331 Claims necessary to address defendants' arguments that plaintiff failed to exhaust his administrative Finally, plaintiff seeks to assert an independent cause remedies pursuant to the Prison Litigation of action pursuant to 28 U.S.C. § 1331. However, § 1331 Reform Act of 1995 ("PLRA"), 42 U.S.C. § is purely a grant of jurisdiction to the district courts that 1997e(a). Defendants do not specifically argue neither provides any basis for substantive relief nor waives sovereign immunity so as to reanimate plaintiff's claims that, as discussed above, see supra Part 3, fail due to lack of subject matter jurisdiction. See Mack v. United States, 814 F.2d 120, 122 (2d Cir.1987); Zynger v. Dep't of Homeland Sec., 615 F.Supp.2d 50, 56 (E.D.N.Y.2009).


*9 For the foregoing reasons, all of plaintiff s claims are dismissed except for his Biyens claim against Doe # 3. Plaintiff is permitted to amend his complaint to assert additional Biyens claims. If he chooses to do so, he must name the individual defendants involved (or identify them as "Doe" and provide sufficient information to permit defendants to identify that person), and as best he can describe in detail how they participated in the deprivation of his constitutional rights. Plaintiff is reminded that alleging mere negligence is insufficient, since his FTCA claims are jurisdictionally barred. Rather, he must present sufficient factual allegations to state a plausible claim that each identified defendant was personally involved in acting with "deliberate indifference" to his "serious medical needs". Further, the amended complaint must be captioned "Amended Complaint," and shall bear docket number 07-CV-2488. It must be submitted to the Court within 30 days from the date of this Order. If plaintiff fails to produce an amended complaint within that time period, the action will proceed solely on the Bivens claim against Doe # 3, all other claims having been dismissed.

In light of the Court's determination that plaintiff may amend his complaint to allege additional facts, defendants' motion to transfer venue to the Northern District of New York is granted but stayed for 45 days from the date of this Order. Upon the expiration of the stay, the Clerk of the Court is directed to transfer this matter to the United States District Court in the Northern District of New York and to close this case.



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