Petlechkov v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DIMITAR PETLECHKOV, )

Plaintiff, )

v. ) No. 3:22-CV-2908-K-BH

)

UNITED STATES OF AMERICA, )

Defendant. ) Referred to U.S. Magistrate Judge1

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Before the Court are the plaintiff’s Objections to Findings, Conclusions, and

Recommendation [R. 11], and his Verified First Amended Complaint for Damages, filed October

27, 2023 (docs. 11, 12), which are liberally construed as a motion for leave to amend the complaint;

the motion is GRANTED. The Findings, Conclusions, and Recommendation, filed October 18,

2023 (doc. 11), are hereby VACATED. Based on the relevant filings and applicable law, this case

should be DISMISSED without prejudice for lack of subject matter jurisdiction.

I. BACKGROUND

Dimitar Petlechkov (Plaintiff), a former federal prisoner proceeding pro se and in forma

pauperis in this civil action, sues the United States under the Federal Tort Claims Act (FTCA), 28

U.S.C. § 2671, et seq. (See docs. 3 at 1; 10 at 1-4; 12.)2 On November 17, 2020, Plaintiff was

informed that his projected release date was November 30, 2020. (doc. 12 at 2.) According to him,

the Designation & Sentence Computation Center (DSCC) in Grand Prairie, Texas, incorrectly

calculated his Good Conduct Time (GCT) for the second year of his sentence. (docs. 10 at 1; 12 at

3.) Because he should have received full GCT credit for his second year in custody, he claims, his

1 By Special Order No. 3-251, this pro se case has been automatically referred for full case management.

2 Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page numbers

at the bottom of each filing.

release date should have been November 18, 2020. (Id.)

Plaintiff filed an emergency grievance with the warden on November 18, 2020, but he

received no response. (doc. 12 at 3.) Because he was released 12 days later, he did not have enough

time to pursue his administrative remedies further or to file a habeas petition. (Id.) On May 17, 2022,

Plaintiff submitted an FTCA administrative claim to the Federal Bureau of Prisons (BOP). (doc. 10

at 6-8.) He did not receive a written response from the BOP. (Id. at 2.)

On October 18, 2023, it was recommended that Plaintiff’s claims be dismissed for lack of

subject matter jurisdiction. (See doc. 11.) He filed his objections to the recommendation, and an

amended complaint, on October 27, 2023. (See docs. 12, 13.) The amended complaint asserts a

negligence claim under Georgia law, alleging he was “wrongfully and unjustly detained for an

additional 12 days.” (doc. 12 at 3-4.) It alleges that DSCC employees have “a statutory and legal

duty and obligation to follow well established regulations promulgated by the BOP,” and are

specifically “required to accurately calculate GCT and projected release dates based on certain

criteria.” (Id. at 3.) These unidentified but “well established” BOP regulations allegedly state that

prisoners are to be awarded “54 days of GCT per year instead of 42 days for individuals without a

diploma,” that “having a university diploma satisfies the high school or GED requirement,” and that

individuals held in pretrial detention are “exempted from GED participation.” (Id.) DSCC

employees “breached their duties by failing to account for and properly calculate [P]laintiff’s GCT

for his second year of custody when they wrongfully and negligently removed 12 days of GCT for

not having a GED or high school diploma, when the PSR clearly showed that [he] had an equivalent

or higher ‘verified’ degree,” and “ignored the fact that [he] was in pretrial detention during that time

and was thus exempt from GED [participation].” (Id.) He seeks $30,000 in actual and emotional

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damages for the 12 days of wrongful confinement. (Id. at 4.) No process has been issued.

II. PRELIMINARY SCREENING

Because Plaintiff has been permitted to proceed in forma pauperis, his complaint is subject

to screening under 28 U.S.C. § 1915(e)(2)(B). That statute provides for sua sponte dismissal of the

complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if it fails to state a

claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is

immune from such relief.

A complaint is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke

v. Williams, 490 U.S. 319, 325 (1989). Courts follow the same analysis in determining whether a

complaint fails to state a claim under § 1915(e)(2)(B)(ii) as when ruling on a motion to dismiss

under Rule 12(b)(6). See Hale v. King, 642 F.3d 492, 497 (5th Cir. 2011) (per curiam). A complaint

fails to state a claim upon which relief may be granted when it fails to plead “enough facts to state

a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007);

accord Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Neither mere “labels and conclusions” nor

“a formulaic recitation of the elements of a cause of action” suffice to state a claim upon which relief

may be granted. Id.

III. FEDERAL TORT CLAIMS ACT

Plaintiff sues under the FTCA and seeks monetary damages from the United States. (See doc.

12.) “In the FTCA, Congress waived the United States’ sovereign immunity for claims arising out

of torts committed by federal employees.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217-18

(2008); see also 28 U.S.C. §§ 1346(b)(1), 2671-2680. To successfully sue under the FTCA, a claim

must be: (1) against the United States; (2) for money damages; (3) for injury or loss of property, or

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personal injury or death; (4) caused by the negligent or wrongful act or omission of any employee

of the federal government; (5) while acting within the scope of his office or employment; and (6)

under circumstances where the United States, if a private person, would be liable to the plaintiff in

accordance with the state law where the act or omission occurred. 28 U.S.C. § 1346(b); FDIC v.

Meyer, 510 U.S. 471, 477-78 (1994).

The discretionary function exception is one of several exceptions that limit the waiver of

sovereign immunity under the FTCA. United States v. Gaubert, 499 U.S. 315, 322 (1991) (citing

28 U.S.C. § 2680). “The discretionary function exception withdraws the FTCA’s waiver of

sovereign immunity in situations in which, although a government employee’s actions may have

been actionable under state tort law, those actions were required by, or were within the discretion

committed to, that employee under federal statute, regulation, or policy.” Spotts v. United States, 613

F.3d 559, 566 (5th Cir. 2010). “At the pleading stage, [the] plaintiff must invoke the court’s

jurisdiction by alleging a claim that is facially outside of the discretionary function exception.”

Dickson v. United States, 11 F.4th 308, 312 (5th Cir. 2021) (quoting St. Tammany Parish ex rel.

Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 315 & n.3 (5th Cir. 2009)). “Because the

FTCA provides a waiver of immunity otherwise to be accorded the sovereign, the limitations and

conditions upon which the government consents to be sued must be strictly construed in favor of the

United States.” Atorie Air, Inc. v. F.A.A. of U.S. Dep’t of Transp., 942 F.2d 954, 958 (5th Cir. 1991).

To determine whether the discretionary function exception applies, the court must undertake

a two-step inquiry. See Gaubert, 499 U.S. 315 at 322-23. First, the court “must determine whether

the challenged act involves an element of judgment or choice on the part of the employee.” Id. at

322. “If a statute, regulation, or policy leaves it to a federal agency to determine when and how to

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take action, the agency is not bound to act in a particular manner and the exercise of its authority is

discretionary.” Spotts, 613 F.3d at 567 (citing Gaubert, 499 U.S. at 329). Conversely, “[i]f a ‘federal

statute, regulation or policy’ specifically prescribes a course of action for the federal employee to

follow, the employee has no choice but to adhere to the directive.” Ashford v. United States, 511

F.3d 501, 505 (5th Cir. 2007) (citing Gaubert, 499 U.S. at 322). Second, if the challenged conduct

involved an element of judgment, the court must then determine whether the “judgment is of the

kind that the discretionary function exception was designed to shield.” Gaubert, 499 U.S. at 322-23.

“The focus of the inquiry is not on the agent’s subjective intent in exercising the discretion conferred

by statute or regulation, but on the nature of the actions taken and on whether they are susceptible

to policy analysis.” Id. at 325. “If a regulation allows the employee discretion, the very existence

of the regulation creates a strong presumption that a discretionary act authorized by the regulation

involves consideration of the same policies which led to the promulgation of the regulations.” Id.

at 324. “In performing the two-prong test, the question of whether the government was negligent is

irrelevant.” Gonzalez v. United States, 851 F.3d 538, 544 (5th Cir. 2017) (citation and quotation

omitted).

The Fifth Circuit and district courts in this circuit have recognized that decisions concerning

the award and computation of time credits generally fall within the discretion of BOP. Sample v.

Morrison, 406 F.3d 310, 313 (5th Cir. 2005) (citing 18 U.S.C. § 3624(b)); Hassan v. Hijar, No.

EP-23-CV-41-KC, 2023 WL 1769207, at *3 (W.D. Tex. Feb. 3, 2023) (recognizing that BOP retains

the discretion to determine whether a prisoner will receive time credits toward the completion of his

sentence); McQueen v. Haro, No. 2:03-CV-0227, 2005 WL 1552853, at *2 (N.D. Tex. June 30,

2005) (noting that § 3624(b) “grants to the BOP the discretion to determine, during each year,

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whether a prisoner has complied with the prison disciplinary rules thus warranting the award of good

time credit or whether such should be denied”).

Here, Plaintiff has failed to allege facts sufficient to support a finding that BOP’s decision

to not credit him 12 days of GCT for his diploma was nondiscretionary, or that it did not involve the

kind of judgment that the discretionary function was designed to shield. As for the first prong, he

does not identify any statute, regulation, or policy which mandate a specific nondiscretionary course

of conduct for BOP to follow when calculating and awarding GCT to federal prisoners. See Spotts,

613 F.3d at 568. In the absence of such an allegation, the discretionary function exception bars this

FTCA claim. See Sargent v. United States, 620 F. App’x 69, 72 (3d Cir. 2015) (concluding that

district court correctly determined that FTCA claim was barred under the discretionary function

exception where plaintiff failed to point to a specific statute, regulation, or policy that might bear

upon his claim). While Plaintiff identifies some criteria that BOP employees allegedly were

required, but failed, to follow when calculating his GCT, his conclusory allegations are not sufficient

to establish that subject matter jurisdiction exists over his claim. See Butler v. Dallas Area Rapid

Transit, 762 F. App’x 193, 194 (5th Cir. 2019) (finding plaintiff’s conclusory assertions were

insufficient to establish subject matter jurisdiction).

Regarding the second prong, Plaintiff has not alleged facts sufficient to show that BOP’s

decision to not award him 12 days of GCT was a discretionary decision not based on considerations

of public policy. See Gonzalez, 851 F.3d at 538, 548 (5th Cir. 2017) (noting that a complaint “must

allege facts which would support a finding that the challenged actions are not the kind of conduct

that can be said to be grounded in the policy of the regulatory regime”) (quoting Gaubert, 499 U.S.

at 324-25). Because Plaintiff has failed to meet his burden of showing that the discretionary function

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exception does not apply and that his claim falls within the FTCA’s waiver of sovereign immunity,

his amended complaint should be dismissed for lack of subject matter jurisdiction. See Gonzalez,

851 F.3d at 544 (concluding that the FTCA’s discretionary function exception barred plaintiff’s

claims); see, e.g., Anderson v. United States, No. 4:21-CV-01356-CLM, 2021 WL 5162581, at *1

(N.D. Ala. Nov. 5, 2021) (holding that dismissal was appropriate under § 1915(e) where complaint

failed to (1) identify a specific and binding federal statute, regulation, or policy requiring the course

of conduct not followed by the federal employee, and (2) show that the discretionary function

exception did not apply to the challenged action).

IV. OPPORTUNITY TO AMEND

The Fifth Circuit is inclined to give pro se plaintiffs several opportunities to state a claim

upon which relief can be granted. See Scott v. Brynes, No. 3:07-CV-1975-D, 2008 WL 398314, at

*1 (N.D. Tex. Feb. 13, 2008); Sims v. Tester, No. 3:00-CV-0863-D, 2001 WL 627600, at *2 (N.D.

Tex. Feb. 13, 2001). Courts therefore typically allow pro se plaintiffs an opportunity to amend their

complaints when the action is to be dismissed pursuant to a court order. See Robinette v. Merrill

Lynch, Pierce, Fenner & Smith, Inc., No. 3:96-CV-2923-D, 2004 WL 789870, at *2 (N.D. Tex. Apr.

12, 2004); Sims, 2001 WL 627600, at *2. Leave to amend is not necessary, however, where the

plaintiff has already pled his best case. See Wiggins v. La. State Univ.—Health Care Servs. Div., 710

F. App’x 625, 627 (5th Cir. 2017) (citations omitted). When a court “outline[s] in [its] opinion the

deficiencies” of plaintiff's complaint and “plaintiff nevertheless cannot ... amend to satisfy [the

relevant pleading standard,] the court can then dismiss the complaint with the assurance that plaintiff

has been shown all the deference he is due.” Sims v. Tester, No. 3:00-CV-0863-D, 2001 WL 627600,

at *2-3 (N.D. Tex. Feb. 13, 2001) (quoting Barber v. G.H. Rodgers, No. CA3-84-1750-D (N.D. Tex.

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Sept. 13, 1988)).

Plaintiffhas responded to a detailed questionnaire and amended his complaint, but his claims

are barred. Because he has been able to plead his best case, further leave to amend is not warranted.

V. RECOMMENDATION

Plaintiff’ s amended complaint should be DISMISSED without prejudice for lack of subject

matter jurisdiction.

SIGNED this 13th day of November, 2023.

4RMA CARRILLO hee ; )

UNITED STATES MAGISTRATE GE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of these findings, conclusions and recommendation shall be served on all parties in

the manner provided by law. Any party who objects to any part of these findings, conclusions and

recommendation must file specific written objections within 14 days after being served with a copy.

See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must identify

the specific finding or recommendation to which objection is made, state the basis for the objection,

and specify the place in the magistrate judge’s findings, conclusions and recommendation where the

disputed determination is found. An objection that merely incorporates by reference or refers to the

briefing before the magistrate judge is not specific. Failure to file specific written objections will

bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate

Judge that are accepted or adopted by the district court, except upon grounds of plain error. See

Douglass v. United Servs. Automobile Ass’n, 79 F.3d 1415, 1417 (Sth Cir. 1996).

4RMA CARRILLO ee ; )

UNITED STATES MAGISTRATE GE