The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
ARTHUR FLEMMING MOLER : DOCKET NO. 2:19-cv-983
REG. # 27271-171 SECTION P
VERSUS : JUDGE TERRY A. DOUGHTY
KEDRIC GASAWAY, ET AL. : MAGISTRATE JUDGE KAY
RULING
Before the Court is a Complaint [Doc. No. 1] filed pursuant to the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 2671, et seq., by Plaintiff Arthur Flemming Moler (“Moler”), who is
proceeding pro se and in forma pauperis in this matter. Moler is an inmate in the custody of the
Bureau of Prisons (“BOP”) and is currently incarcerated at the Federal Correctional Institute in
Forrest City, Arkansas (“FCI-FC”). His claims relate to events that allegedly occurred while he
was incarcerated at the Federal Correctional Institute in Oakdale, Louisiana (“FCIO”). He names
as defendants Kedric Gasaway, Clara Baty, Ms. Papillion, K. Richard, H. Smith, S. Golbert, Y.
Welch, and Officer Deville.
On September 23, 2019, Magistrate Judge Kathleen Kay issued a Report and
Recommendation in which she recommended that Moler’s complaint be dismissed for lack of
jurisdiction [Doc. No. 5]. On October 8, 2019, Moler filed an objection to the Report and
Recommendation [Doc. No. 6] and a Motion to Amend his Complaint [Doc. No. 7].
Magistrate Judge Kay noted that the United States is immune from tort suits, except to the
extent that it waives that immunity. Gregory v. Mitchell, 634 F.2d 199, 203 (5th Cir. 1981). One
such waiver is the FTCA, which provides the exclusive remedy for damages for injury, death, or
loss of property “resulting from the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment.” Id. at § 2679(b)(1). The
FTCA creates “a limited waiver of sovereign immunity making the United States liable to the same
extent as private parties for certain torts of federal employees acting within the scope of their
employment.” Montoya-Ortiz v. Brown, 154 Fed. Appx. 437, 439-40 (5th Cir. 2005) (citing United
States v. Orleans, 96 S. Ct. 1971 (1976); 28 U.S.C. §1346(b)). However, 28 U.S.C. §2680(c)
provides that “[t]he provisions of [the FTCA] shall not apply to . . . any claim arising in respect of
. . . the detention of any goods, merchandise, or other property by any officer of customs or excise
or any other law enforcement officer. . .”.
The Fifth Circuit has held that §2680(c) is applicable to all claims arising from the
detention of goods and merchandise by any federal law enforcement officer in the performance of
his or her lawful duties. See Halverson v. United States, 972 F.2d 654, 655 (5th Cir. 1992), cert.
denied, 113 S. Ct. 1297(1993); Chapa v. United States Dep’t of Justice, 339 F.3d 388 (5th Cir.
2003). Further, the Supreme Court has concluded that the exception applies to the negligent loss
or destruction of the property while it is in the possession of law enforcement officers. Amandi v.
United States Dep’t of Homeland Sec., 2007 U.S. Dist. LEXIS 93976, 2007 WL 4302644 (W.D.
La. Oct. 23, 2007); report and recommendation adopted, NO. 07-1131, Doc. No. 15 (W.D. La.
Dec. 6, 2007). The language “arising in respect of” is synonymous with “arising out of” and
“sweep[s] within the exception all injuries associated in any way with the ‘detention’ of goods.”
Id. (citing Kosak v. United States, 104 S. Ct. 1519 (1984)).
Moreover, the Fifth Circuit has held that possession of plaintiff’s property by a BOP
employee, even if unauthorized, tortious, or wrongful, constitutes a detention within the meaning
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of § 2680(c) and is remotely related to a BOP employee’s duties in inspecting and inventorying
prisoner property. Krug v. United States, 11-40016, 2011 U.S. App. LEXIS 20150, 442 Fed.
App’x. 950 (5th Cir. Sept. 29, 2011) (citing Chapa v. DOJ, 339 F.3d 388, 391 (5th Cir. 2003);
Capozzoli v. Tracey, 663 F.2d 654, 658 (5th Cir. 1981).
Accordingly, the Magistrate Judge found that, while plaintiff's claim falls within the scope
of the FTCA, the exception contained in section 2680(c) is applicable. Therefore, this Court lacks
jurisdiction to adjudicate Plaintiff's lost and/or misplaced property claim under the FTCA since
the United States retains sovereign immunity with regard to such suits.
The Court has carefully reviewed the objections filed by Moler but finds that the Report
and Recommendation is correct. Therefore, for the reasons stated in the Report and
Recommendation of the Magistrate Judge, and after an independent review of the record,
determining that the findings are correct under the applicable law, and considering the objections
to the Report and Recommendation in the record, the Court will order that this matter be
DISMISSED for lack of jurisdiction.
With regard to Moler’s Motion to Amend [Doc. No. 7], as a general matter, courts should
grant leave to amend pleadings “freely ... when justice so requires.” FED. R. CIV. P. 15(a).
Normally, “leave to amend is to be granted liberally unless the movant has acted in bad faith or
with a dilatory motive, granting the motion would cause prejudice, or amendment would be futile.”
Jebaco Inc. v. Harrah's Operating Co. Inc., 587 F.3d 314, 322 (5th Cir.2009).
Here, the amendment would be futile. The proposed amended pleading does not cure the
deficiency of lack of jurisdiction. Therefore, the Court will deny the motion to amend.
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Monroe, Louisiana, this 9" day of October, 2019.
joe ( \ a a
TERRY A D0 UGHTY
UNI! STATES DISTRICT JUDGE