Medina v. United States

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:19-cv-74-FDW

SAMUEL MEDINA, )

)

Plaintiff, )

)

vs. ) ORDER

)

UNITED STATES, et al., )

)

Defendants. )

___________________________________ )

THIS MATTER is before the Court on initial review of the Complaint, (Doc. No. 1).

Plaintiff has filed an Application to proceed in forma pauperis. (Doc. No. 4).

I. BACKGROUND

Pro se Plaintiff purports to file a civil rights suit pursuant to Bivens v. Six Unknown Named

Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) and the Federal Tort Claims Act,

28 U.S.C. § 2671, et seq., (“FTCA”). He names as Defendants the United States and “John Does

1-99.” (Doc. No. 1 at 1). The Complaint addresses incidents that allegedly occurred at the

Buncombe County Detention Facility (“BCDF”) in Asheville, North Carolina, pending federal

criminal charges.1 He alleges claims pursuant to the FTCA and Bivens for the use of solitary

confinement to extort a plea of guilty and to impose extrajudicial punishment, and for conversion.

Plaintiff alleges that he was jailed in BCDF on federal criminal charges in April 2016. He

repeatedly asked his public defender for a bond hearing, but he was told that counsel was waiting

to review discovery which was provided to counsel soon after the commencement of federal

1 Plaintiff is currently incarcerated in the Jesup Federal Correctional Institution – Low in Jesup, Georgia.

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criminal charges. Plaintiff was taken from BCDF to a bond hearing on July 27, 2016. Before and

during the hearing, Plaintiff asked counsel to request reasonable bail so he could remain free until

trial in order to assist his attorney, access the law, and mount a reasonable defense regarding

criminal liability and sentencing. Counsel told Plaintiff that a request for bail would make the

Government angry with him and that it was best if he said he did not want a bond hearing. Plaintiff

nevertheless told counsel to request reasonable bail and counsel did so.

Immediately upon returning from the bond hearing on July 27, BCDF guards told Plaintiff

that he had five minutes to get his property together. Plaintiff packed his property without knowing

the reason for the order. He was immediately escorted to solitary confinement. Plaintiff made

numerous inquiries about the reason for being placed in solitary and made written administrative

requests.

Plaintiff’s lawyer came to meet with Plaintiff a few days later with a plea offer. Counsel

said he did not know why Plaintiff was in solitary, but that if he signed a plea deal, his “trouble”

would go away. (Doc. No. 1 at 2). Plaintiff understood “trouble” to mean being locked up in

solitary confinement and otherwise abused or treated worse than other inmates. (Id.). Counsel told

Plaintiff during that meeting that, if he did not accept the plea offer, his situation would only get

worse. Plaintiff believed that counsel was telling the truth. Plaintiff chose to plead guilty within

about two weeks of the bond hearing specifically for the purpose of alleviating solitary

confinement.

Plaintiff is unlawfully being denied access to state law by the “Department of Justice –

Federal Bureau of Prisons.” (Doc. No. 1 at 2). Plaintiff is also being denied access to a reasonable

word processor and other office equipment and supplies that would “allow him to craft creditable

legal documents.” (Id.). He believes these denials are done for the purpose and with the effect of

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denying prison inmates reasonable access to the courts. All facts necessary to establish the legal

foundation for an FTCA claim about extortion of a guilty plea are in existence.

Despite Plaintiff’s guilty plea, he was kept in solitary confinement for approximately nine

more months. This extended solitary cause Plaintiff serious injury and damage. The United States

“and the responsible employees” were well aware of the damage caused by solitary confinement.

(Id.). The Government has promulgated guidelines for the use of solitary confinement. Plaintiff’s

solitary confinement was a “flagrant violation” of numerous federal rules and guidelines. (Id.).

The extended solitary confinement was the result Plaintiff hoped to avoid by pleading guilty. The

use of solitary confinement “for gratuitous cruelty amounts to false imprisonment.” (Id.).

Plaintiff was placed in solitary confinement “at the specific request of persons employed

by the US Marshals Service.” (Id.). This punishment amounts to false imprisonment, cruel and

unusual punishment, abuse of official powers, violation of due process, violation of the right to a

jury trial and proof of the facts, and violation of other laws and regulations. Plaintiff has not been

told who gave the orders to place him in solitary but will amend his Complaint after he learns their

identities during discovery.

Plaintiff was never given a copy of the rules, regulations, or contract with the US Marshals

service so that he could “effectively pursue his legal rights and terminate the solitary confinement.”

(Id.). The solitary confinement imposed on Plaintiff violated “well known rules and protocols of

the US Department of Justice … and or its subsidiary the Federal Bureau of Prisons …, and of the

US Marshals Service.” (Doc. No. 1 at 3). The US Marshals Service is “duty bound to contract with

only the detention facilities that comply with the requirements of the American Correctional

Association (ACA).” (Id.). The use of extended solitary confinement without due process or

adequate legal reason is a flagrant violation of the ACA as set forth in the Standards of Adult

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Correctional Institutions, 4th Edition. Plaintiff was allowed out of solitary confinement only three

times per week, for one hour each time, and had to get a shower, do any legal work, make calls,

exercise, and attend to all other matters during that period.

This wrongful conduct is part of a pattern and practice of using terror against criminal

defendants, especially those who stand on their legal rights or attempt to do so. The parties who

participated in the wrongful conduct against Plaintiff intended to use Plaintiff as an example, to

terrorize other criminal defendants into waiving substantial legal rights, abandoning claims for the

recovery of seized property, or otherwise asserting and vindicating rights secured by the

constitution and laws of the states and United States. The perpetrators of these acts “intended to

retaliate against Plaintiff for peaceful petition of grievances, both to terrorize Plaintiff and to ‘send

a message’ to other criminal defendants who might wish to honestly legitimately exercise their

legal rights of peaceful petition for the redress of grievances.” (Doc. No. 1 at 3).

At the time of his arrest, Plaintiff was carrying $2,100 in his pants pocket. The officer who

patted Plaintiff down took the money and did not give Plaintiff a receipt to acknowledge the

confiscation. The seizure of property without a receipt amounts to conversion. Plaintiff believes

that one of the reasons that Plaintiff was placed in solitary confinement was to allow a “corrupt

and dishonest federal employee to steal money from his pockets and avoid liability, complaint,

investigation, punishment for public corruption, or any other repercussions for using his position

and privileges for his own unlawful personal enrichment.” (Id.).

Plaintiff suffered injury and damage flowing from the solitary confinement, specifically,

serious, chronic pain in his right shoulder, right hip, and right knee. He also suffered “serious

emotional and psychic anguish and distress” as a result of the solitary confinement. (Id.).

Plaintiff states that he “proceeds on a theory of negligence as to all counts, as well as any

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other claim stated or reasonably disclosed by the alleged facts.” (Doc. No. 1 at 1). Plaintiff also

alleges that he has exhausted all available remedies. With regards to the FTCA claims, Plaintiff

alleges that he submitted an FTCA tort claim, that the U.S. Marshals Service acknowledged its

receipt on November 3, 2017 and that the time to respond has expired.

II. APPLICATION TO PROCEED IN FORMA PAUPERIS

Plaintiff has filed an Application to Proceed in District Court Without Prepaying Fees or

Costs which is pending before the Court. (Doc. No. 2). Plaintiff, who is incarcerated, states that

his only source of income is gifts from family and $17 per month in income from his prison job.

(Doc. No. 1 at 1). He is unable to contribute to the support of his three minor children and has no

money in cash or bank accounts, or any other assets. (Doc. No. 1 at 2). He has no monthly bills

but does owe $25 from an “assessment fee.” (Doc. No. 1 at 2). A prisoner trust account statement

from June 2019 reveals that Plaintiff has an account balance of $45.38. (Doc. No. 6 at 1).

The Court is satisfied that Plaintiff does not have sufficient funds with which to prepay the

filing fee. Therefore, Plaintiff’s motion will be granted and the Clerk of Court will be instructed

to enter an Order Waiving Initial Partial Filing Fee and Directing the Correctional Facility to

Transmit Partial Payments.

III. STANDARD OF REVIEW

Because Plaintiff is proceeding in forma pauperis, the Court must review the Complaint to

determine whether it is subject to dismissal on the grounds that it is “frivolous or malicious; fails

to state a claim on which relief may be granted; or seeks monetary relief against a defendant who

is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). The Court must determine whether

the Complaint raises an indisputably meritless legal theory or is founded upon clearly baseless

factual contentions, such as fantastic or delusional scenarios. Neitzke v. Williams, 490 U.S. 319,

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327-28 (1989).

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires “a short and plain statement

of the claim showing that the pleader is entitled to relief.” Erickson v. Pardus, 551 U.S. 89, 93

(2007). The statement of the claim does not require specific facts; instead, it “need only ‘give the

defendant fair notice of what the ... claim is and the grounds upon which it rests.’” Id. (quoting

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). However, the statement must assert

more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.”

Twombly, 550 U.S. at 555.

A pro se complaint must be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520

(1972); see also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (“Liberal construction of the

pleadings is particularly appropriate where … there is a pro se complaint raising civil rights

issues.”). However, the liberal construction requirement will not permit a district court to ignore

a clear failure to allege facts in the complaint which set forth a claim that is cognizable under

federal law. Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

IV. DISCUSSION

(1) FTCA

The Federal Tort Claims Act (“FTCA”) 28 U.S.C. §§ 2671–2680 (2000), provides the

exclusive remedy for torts committed by a government employee in the scope of his employment.

See United States v. Smith, 499 U.S. 160, 165–66 (1991). An action under the FTCA proceeds

only against the United States. 28 U.S.C. § 2679(a). Federal employees who are sued for actions

within the scope of their office or employment are immunized, and the United States is substituted

in their place. 28 U.S.C. § 2679 (2000). Venue is proper only in the judicial district where the

plaintiff resides or wherein the act or omission complained of occurred. 28 U.S.C.A. § 1402(b).

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Punitive damages are not available under the FTCA. 28 U.S.C.A. § 2674.

The FTCA is a limited waiver of sovereign immunity, and therefore courts must strictly

interpret and apply it. United States v. Sherwood, 312 U.S. 584, 590 (1941); Gould v. U.S. Dep’t

of Health & Human Servs., 905 F.2d 738, 741 (4th Cir. 1990). Under the FTCA, procedural matters

are governed by federal law; however, the FTCA directs courts to examine substantive legal issues

pursuant to the laws of the place where the act or omission occurred. Miller v. United States, 932

F.2d 301, 303 (4th Cir. 1991) (“A plaintiff has an FTCA cause of action against the government

only if []he would also have a cause of action under state law against a private person in like

circumstances. State law determines whether there is an underlying cause of action....”) (internal

citations omitted); Dunbar Corp. v. Lindsey, 905 F.2d 754, 757 (4th Cir. 1990) (“United States’

liability under the FTCA depends upon state law.”). “FTCA’s limited waiver of sovereign

immunity extends no farther than the limits of private tort liability.” Ready Transp., Inc. v. Military

Traffic Mgmt. Command, 86 Fed. Appx. 561, 565 (4th Cir. 2004) (citing 28 U.S.C. § 2674).

Therefore, FTCA provides no remedy for constitutional torts. Id.; Estate of Purkey ex rel. Purkey

v. United States, 299 F. Supp. 2d 539 (W.D.N.C. 2004) (violation of federal statute cannot form

basis for FTCA claim, so North Carolina law alone applies).

A key jurisdictional prerequisite to filing suit under the FTCA involves the presentation of

an administrative claim to the government within two years of the incident. See 28 U.S.C. §

2401(b) (1994) (a tort claim “shall be forever barred unless it is presented in writing to the

appropriate Federal agency within two years after such claim accrues….”). Moreover, “the

requirement of filing an administrative claim is jurisdictional and may not be waived.” Kokotis v.

U.S. Postal Serv., 223 F.3d 275, 279 (4th Cir. 2000). If the plaintiff has not exhausted his or her

administrative remedies, the court must dismiss for lack of subject matter jurisdiction. See Plyler

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v. United States, 900 F.2d 41, 42 (4th Cir. 1990).

Plaintiff claims that he exhausted his claims by alleging that he filed an FTCA complaint

to the U.S. Marshals Service, and that six months have expired without having been resolved. See

28 U.S.C. § 2675(a). Plaintiff argues that his guilty plea was extorted and that he was falsely

imprisoned in solitary confinement. It is unclear whether he also intends to claim conversion under

the FTCA and he has failed to raise a conversion claim in the FTCA documents he has filed with

the Court. Each of Plaintiff’s FTCA claims will be addressed in turn.

First, Plaintiff’s claim of “extortion” is not cognizable under FTCA. No civil cause of

action for extortion currently exists under North Carolina law, and therefore, Plaintiff cannot assert

this claim under the FTCA. See N.C. Gen. Stat. § 14-118.4; Hester v. Hubert Vester Ford, Inc.,

239 N.C. App. 22, 31, 767 S.E.2d 129, 136 (2015) (citing Free Spirit Aviation, Inc. v. Rutherford

Airport Auth., 191 N.C.App. 581, 585, 664 S.E.2d 8, 12 (2008)). Plaintiff’s suggestion within the

extortion claim that he was denied access to the courts is a constitutional claim that cannot be

raised under the FTCA.

Second, Plaintiff claims that he was falsely imprisoned by being placed in segregation.

This claim is not cognizable because the United States’ sovereign immunity is not waived under

the FTCA for “[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 rights.” 28 U.S.C. § 2680(h); Campos v. United States, 888 F.3d 724, 730 (5th Cir.

Apr. 24, 2018). Therefore, the Court lacks jurisdiction over Plaintiff’s false imprisonment claim.

See Benston v. Evans, 170 Fed. Appx. 269 (4th Cir. 2006). Further, to the extent that Plaintiff

complains about his placement and classification, this claim is barred by FTCA’s discretionary

function exception. Plaintiff alleges that he was placed in segregated housing based on the

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direction of the U.S. Marshals Service. However, the United States is not liable under the FTCA

for “[a]ny claim based upon ... the exercise or performance or the failure to exercise or perform a

discretionary function or duty on the part of a federal agency or an employee of the Government,

whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). “The discretionary

function exception ‘marks the boundary between Congress’ willingness to impose tort liability

upon the United States and its desire to protect certain governmental activities from exposure to

suit by private individuals.’” Holbrook v. United States, 673 F.3d 341, 345 (4th Cir. 2012) (quoting

United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797,

808 (1984)). Courts have consistently held that decisions regarding inmate placement and

classification fall within the discretionary function exception to the FTCA. See Petrovic v. United

States, 2018 WL 9457987, at *8–9 (E.D.N.C. Sept. 12, 2018) (collecting cases); see, e.g.,

Thompson v. United States, 2018 WL 3594981 (E.D.N.C. July 26, 2018) (dismissing FTCA claim

regarding inmate’s termination from a prison work assignment under FTCA’s discretionary

function exception as frivolous). Moreover, to the extent that Plaintiff alleges he is being subjected

to cruel and unusual punishment or that he was placed in segregation without due process, these

are constitutional claims that are more appropriately brought in a Bivens civil rights suit. See

Section (2), infra.

Third, to the extent that Plaintiff attempts to assert a claim for conversion under the FTCA,

it is barred. Plaintiff alleges that an “officer” took $2,100 from his pants pocket upon his arrest

without completing a receipt, and that the money was converted. Plaintiff fails to explain how

money’s alleged loss was due to the negligence of a United States employee. Further, the FTCA

documents Plaintiff has filed make no mention of his conversion claim. Therefore, Plaintiff’s

conversion claim under the FTCA will be dismissed.

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Finally, Plaintiff’s broad allegation of “negligence” fails to state a claim upon which relief

can be granted. See generally Fed. R. Civ. P. 8(a)(2) (requiring a short and plain statement of the

claim showing that the pleader is entitled to relief); Eisenberg v. Wachovia Bank, N.A., 301 F.3d

220 (4th Cir. 2002) (under North Carolina law, “[n]egligence is the failure to exercise proper care

in the performance of a legal duty owed by a defendant to a plaintiff under the circumstances.”)

(quotation omitted). Plaintiff’s claims of “negligence” are too vague and conclusory to proceed

and they will be dismissed.

Plaintiff has failed to state a facially sufficient claim under the FTCA and, therefore, his

FTCA claims will be dismissed.

(2) Bivens

To state a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), a plaintiff must allege that a defendant is a federal agent who acted

under the color of authority and engaged in unconstitutional conduct. The purpose of Bivens is to

“deter individual federal officers from committing constitutional violations.” Holly v. Scott, 434

F.3d 287, 291 (4th Cir. 2006) (quoting Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 70

(2001)); see also Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982) (§ 1983 applies only to

state actors)).

Plaintiff names as Defendants the United States and John Does, presumably, “persons

employed by the US Marshal Service” who ordered him to be placed in solitary confinement. (Doc.

No. 1 at 2). He seeks to amend the Complaint to “name the guilty parties as defendants” after

discovery reveals their identities. (Doc. No. 1 at 3).

Plaintiff alleges that the federal arresting agent converted the $2,100 that was in Plaintiff’s

pants pocket when he was arrested. Plaintiff further alleges that he was placed in solitary

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confinement for nine months without due process in cruel and unusual conditions that resulted in

serious chronic pain in shoulder, hip, knee, and emotional anguish. Plaintiff appears to argue that

the solitary confinement was in retaliation for insisting on a bond hearing. These claims are not

frivolous on their face and they will be permitted to pass initial review against the John Doe

federal agent who arrested Plaintiff in April 2016, and against John Doe employee(s) of the U.S.

Marshals Service who ordered Plaintiff to be placed in solitary confinement in late July 2016.

See generally Sloan v. City of Asheville Police, 974 F.2d 1332, 1332 n.1 (4th Cir. 1992) (where a

pro se litigant alleges a cause of action which may be meritorious against persons unknown, the

practice of this Court has been to “afford him a reasonable opportunity to determine the correct

person or persons against whom the claim is asserted.”); see, e.g., Bivens, 403 U.S. at 390 n.2

(ordering that the complaint be served on “those federal agents who it is indicated by the records

of the United States Attorney participated in the November 25, 1965 arrest of the (petitioner).”).

However, Plaintiff’s claims of false imprisonment, abuse of power, deprivation of jury trial

would necessarily imply the invalidity of his conviction and sentence. The Supreme Court held in

Heck v. Humphrey, 512 U.S. 477 (1994), that:

to recover damages for … harm caused by actions whose unlawfulness

would render a conviction or sentence invalid, a § 1983 plaintiff must prove that

the conviction and sentence has been reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal authorized to make such

determination, or called into question by a federal court’s issuance of a writ of

habeas corpus….

Id. at 485.

For Heck to bar a § 1983 or Bivens claim: (1) a judgment in favor of the plaintiff must

necessarily imply the invalidity of a plaintiff’s conviction or sentence; and (2) the claim must be

brought by a claimant who is either (i) currently in custody or (ii) no longer in custody because the

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sentence has been served, but nevertheless could have practicably sought habeas relief while in

custody. Griffin v. Baltimore Police Dep’t, 804 F.3d 692, 696 (4th Cir. 2015) (citing Covey v.

Assessor of Ohio Cty., 777 F.3d 186, 197 (4th Cir. 2015)).

Plaintiff allegations that he was falsely imprisoned and that his guilty plea was coerced by

his placement in solitary confinement necessarily implies the invalidity of his conviction and

sentence. He is still in BOP custody, presents no evidence that his conviction has been reversed,

expunged, declared invalid, or called into question by a writ of habeas corpus. Therefore, Heck

bars the claims of false imprisonment and that his guilty plea was coerced.

Plaintiff’s claims of cruel and unusual punishment, retaliation, and conversion will

therefore be permitted to proceed against the John Doe federal arresting agent and John Doe

Marshals Service employee(s) who ordered Plaintiff to be placed in solitary confinement at BCDF.

However, Plaintiff’s remaining Bivens claims will be dismissed for failure to state a claim upon

which relief can be granted.

V. CONLUSION

Plaintiff’s Application to proceed in forma pauperis is granted. For the reasons stated

herein, Plaintiff’s FTCA claims are dismissed. Plaintiff’s Bivens claims of cruel and unusual

conditions of confinement, violation of due process, retaliation, and conversion will therefore be

permitted to proceed against the John Doe federal arresting agent and John Doe Marshals Service

employee(s) who ordered Plaintiff to be placed in solitary confinement at BCDF, but Plaintiff’s

remaining Bivens claims will be dismissed for failure to state a claim upon which relief can be

granted.

IT IS, THEREFORE, ORDERED that:

1. Plaintiff’s Application to Proceed in Forma Pauperis, (Doc. No. 2), is GRANTED.

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2. The Clerk of Court is directed to enter an Order Waiving Initial Partial Filing Fee

and Directing the Correctional Facility to Transmit Partial Payments.

3. The Complaint has passed initial review on Plaintiffs Bivens claims of cruel and

unusual conditions of confinement, violation of due process, retaliation, and

conversion. The remaining Bivens claims and the FTCA claims are dismissed

pursuant to 28 U.S.C. § 1915(e)(2)(B)ai).

4. IT IS FURTHER ORDERED THAT the Clerk is directed to prepare and issue

summons forms and direct the U.S. Marshal to effectuate service on: John Doe

federal agent who arrested Plaintiff in April 2016; John Doe employee(s) of

the U.S. Marshals Service who ordered Plaintiff to be placed in solitary

confinement in late July 2016; the local U.S. Attorney and the U.S.

Attorney General.

Signed: November 5, 2019

Frank D. Whitney

Chief United States District Judge ~“#*"

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