Deschler v. Federal Bureau of Investigations

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

______________________________________________________________________________

BONNIE DESCHLER, )

)

Plaintiff, )

v. ) No. 1:25-cv-1087-STA-jay

)

FEDERAL BUREAU OF )

INVESTIGATION, )

)

Defendant. )

______________________________________________________________________________

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

ORDER GRANTING PLAINTIFF LEAVE TO FILE AMENDED COMPLAINT

______________________________________________________________________________

Before the Court is the United States Magistrate Judge’s report and recommendation (ECF

No. 7) that the Court dismiss Plaintiff Bonnie Deschler’s Pro Se Complaint for lack of subject

matter jurisdiction and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

Plaintiff has filed timely objections to the report and recommendation. For the reasons set forth

below, the Court ADOPTS the report and DISMISSES Plaintiff’s Pro Se Complaint sua sponte.

The Court will, however, grant Plaintiff leave to amend her pleading.

BACKGROUND

Plaintiff filed her Pro Se Complaint on March 28, 2025. Plaintiff used the official form for

complaints for the violation of civil rights under 42 U.S.C. § 1983. Plaintiff alleges that on August

16, 2023, “an FBI SWAT team out of Jackson, TN vandalized/destroyed [her] house with tear gas

canisters, flash bang grenades, and bullets from their rifles.” Plaintiff also alleges that the unnamed

officials “murdered my disabled unarmed son.” Id. at 4, § III (PageID 4). According to the Pro Se

Complaint, the law enforcement officials violated 18 U.S.C. § 242 and Plaintiff’s rights under the

Fourth Amendment. Plaintiff seeks compensatory damages for property loss, the wrongful death

of her son, emotional distress, loss of enjoyment of life, pain and suffering, and loss of consortium

and punitive damages.

The United States District Court for the Western District of Tennessee has adopted

Administrative Order 2013-05, referring all cases filed by non-prisoner plaintiffs acting pro se to

a United States Magistrate Judge for management of all pretrial matters. The Magistrate Judge

granted Plaintiff’s motion for leave to proceed in forma pauperis. Because Plaintiff is proceeding

in forma pauperis, the Court is required to conduct a screening of her Pro Se Complaint. In re

Prison Litig. Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997) (holding that non-prisoners

proceeding in forma pauperis are subject to the screening requirements of 28 U.S.C. § 1915(e)).

Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a case brought by a plaintiff acting

in forma pauperis “at any time if the court determines that (A) the allegation of poverty is untrue;

or (B) the action or appeal (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). Here, the Magistrate Judge’s report and recommendation constitutes the

Court’s screening decision.

The Magistrate Judge concluded that the Court should dismiss the Pro Se Complaint. First

and foremost, Plaintiff seeks monetary relief against a defendant immune from suit. The doctrine

of sovereign immunity shields the United States of America and its agencies like the FBI from a

suit for money damages. The Federal Tort Claims Act (“FTCA”) waives sovereign immunity for

tort actions involving the conduct of the United States, its agencies, and its employees acting within

the scope of their employment. See 28 U.S.C. § 2679. The United States of America is the only

proper defendant in an FTCA action alleging negligence by a federal employee. Mynatt v. United

States, 45 F.4th 889, 894 n.1 (6th Cir. 2022) (citing Allgeier v. United States, 909 F.2d 869, 871

(6th Cir. 1990) and 28 U.S.C. § 2679(a)). Because the Pro Se Complaint is directed at a federal

agency (the FBI) and not the United States of America, the Magistrate Judge has recommended

that the Court dismiss the Pro Se Complaint for lack of subject matter jurisdiction. See Good v.

Ohio Edison Co., 149 F.3d 413, 418 (6th Cir. 1998) (dismissing defendant United States Coast

Guard as a party for lack of jurisdiction).

Even if the Court construed the Pro Se Complaint as an action brought pursuant to Bivens

v. Six Unknown Fed. Agents, 403 U.S. 388 (1971), Plaintiff has failed to state such a claim. As

the Magistrate Judge correctly notes, any Bivens cause of action Plaintiff may have would lie only

against an individual government official, not the agency which employs the individual. To the

extent Plaintiff alleges 18 U.S.C. § 242 as a basis for her claim, Plaintiff lacks standing to bring

such a claim. The United States Criminal Code makes it an offense against the laws of the United

States for a person to deprive another of his constitutional rights under color of law. However,

only a United States Attorney has the authority to bring such a charge. As a criminal statute, §

242 does not give Plaintiff the right to bring her own private action for a violation of the law.

The Magistrate Judge considered the possibility of permitting Plaintiff to amend the Pro

Se Complaint. The Magistrate Judge recommended the dismissal of any Bivens claim as barred

by the statute of limitations. And because there is no indication from the Pro Se Complaint that

Plaintiff exhausted her administrative remedies on an FTCA claim, the Court should dismiss that

claim without prejudice.

Plaintiff has filed a response (ECF No. 8) to the Magistrate Judge’s report and

recommendation, raising three specific objections. First, Plaintiff states that she filed a form SF95

with the FBI on August 10, 2024. According to Plaintiff, the Office of General Counsel denied

her claim on October 29, 2024. Plaintiff suggests by implication then that she has exhausted her

administrative remedies on any potential FTCA claim. Second, Plaintiff states that she did not file

a Bivens action because the FBI will not release the names of the individual officers involved in

the raid on her home. Finally, Plaintiff argues that 18 U.S.C. § 242 “was supposed to protect” her

and her son and that the officers should be “held accountable.”

STANDARD OF REVIEW

Congress enacted 28 U.S.C. § 636 to relieve the burden on the federal judiciary by

permitting the assignment of district court duties to magistrate judges. See United States v. Curtis,

237 F.3d 598, 602 (6th Cir. 2001) (citing Gomez v. United States, 490 U.S. 858, 869-70

(1989)); see also Baker v. Peterson, 67 F. App’x 308, 310 (6th Cir. 2003). Pursuant to 28 U.S.C.

§ 636(b), a district court “shall make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection is made.” 28 U.S.C. §

636(b)(1)(C). After reviewing the evidence, the Court “may accept, reject, or modify, in whole or

in part, the findings or recommendations made” by the United States Magistrate Judge. Id. While

“a district judge must determine de novo any part of a Magistrate Judge’s disposition that has been

properly objected to,” Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1)(C), the district court is not

required to review (under a de novo or any other standard) “any issue that is not the subject of an

objection.” Thomas v. Arn, 474 U.S. 140, 150 (1985). Otherwise, the district court should adopt

the findings and rulings of the Magistrate Judge to which no specific objection is filed. Id. at 151.

“Pro se complaints are to be held to ‘less stringent standards than formal pleadings drafted

by lawyers,’ and should therefore be liberally construed.” Williams v. Curtin, 631 F.3d 380, 383

(6th Cir. 2011) (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants,

however, are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F. App'x 608, 613

(6th Cir. 2011) (“[A] court cannot create a claim which [a plaintiff] has not spelled out in his

pleading.” (internal quotation marks omitted)); Payne v. Sec’y of Treas., 73 F. App’x 836, 837 (6th

Cir. 2003) (affirming sua sponte dismissal of complaint pursuant to Fed. R. Civ. P. 8(a)(2) and

stating, “[n]either this court nor the district court is required to create Payne’s claim for her”); cf.

Pliler v. Ford, 542 U.S. 225, 231 (2004) (“District judges have no obligation to act as counsel or

paralegal to pro se litigants.”); Young Bok Song v. Gipson, 423 F. App’x 506, 510 (6th Cir. 2011)

(“[W]e decline to affirmatively require courts to ferret out the strongest cause of action on behalf

of pro se litigants. Not only would that duty be overly burdensome, it would transform the courts

from neutral arbiters of disputes into advocates for a particular party. While courts are properly

charged with protecting the rights of all who come before it, that responsibility does not encompass

advising litigants as to what legal theories they should pursue.”).

ANALYSIS

Plaintiff has failed to object to the primary holding recommended by the Magistrate Judge

that the FBI is immune from a suit for monetary relief under any cause of action except an FTCA

claim. In the absence of an objection on this point, the Court hereby ADOPTS the report and

recommendation and holds that the Pro Se Complaint seeks monetary relief from a party which is

immune from suit. The Pro Se Complaint against the FBI must be dismissed for this reason alone.

The Court finds that Plaintiff’s objections to the Magistrate Judge’s report and

recommendation are largely without merit. While Plaintiff invokes 18 U.S.C. § 242 in her

objections, there is no dispute Plaintiff lacks standing to bring a claim under § 242, a provision of

the United States Criminal Code. Only the United States Attorney can initiate criminal charges in

federal court. 28 U.S.C. § 547; Fed. R. Crim. P. 7(c). So inasmuch as Plaintiff alleges violations

of 18 U.S.C. § 242 as a basis of liability against the FBI, a criminal statute does not provide a

private right of action. See Djonovic v. Septer, No. 24-1284, 2025 WL 1005122, at *2 (6th Cir.

Mar. 6, 2025) (citing United States v. Oguaju, 76 F. App’x 579, 581 (6th Cir. 2003) (holding that

the plaintiff “has no private right of action” under either 18 U.S.C. §§ 241 or 242)).

Next, with respect to her possible Bivens claim, Plaintiff states that the FBI has declined to

release the names of the law enforcement officers involved in the raid at her home. Be that as it

may, Plaintiff has not addressed the Magistrate Judge’s recommendation to dismiss any putative

Bivens claim as barred by the statute of limitations. In the absence of a specific objection to show

why the statute of limitations would not bar any Bivens claim Plaintiff could allege, Plaintiff has

not shown why the Court should reject this part of the report. Therefore, the Court adopts the

Magistrate Judge’s reasoning about the statute of limitations on a Bivens claim.

This just leaves the information provided for the first time in Plaintiff’s objections about

the exhaustion of her administrative remedies on an FTCA claim. Plaintiff states that she

submitted an SF95 form to the FBI regarding her claims. “Before filing suit under the FTCA, a

claimant must first present that claim to the relevant agency.” Abbott v. United States, 78 F.4th

887, 896–97 (6th Cir. 2023). The FTCA, 28 U.S.C. § 2675(a), provides as follows:

An action shall not be instituted upon a claim against the United States for money

damages for injury or loss of property or personal injury or death caused by the

negligent or wrongful act or omission of any employee of the Government while

acting within the scope of his office or employment, unless the claimant shall have

first presented the claim to the appropriate Federal agency and his claim shall have

been finally denied by the agency in writing and sent by certified or registered mail.

The failure of an agency to make final disposition of a claim within six months after

it is filed shall . . . be deemed a final denial of the claim for purposes of this section.

28 U.S.C. § 2675(a). The FTCA’s exhaustion requirement is “not a particularly high bar.” Abbott,

78 F.4th at 896. While “the SF95 is not itself required to initiate an FTCA claim,” a claimant

satisfies the FTCA’s exhaustion requirement “[i]f the claimant completes the SF95.” Copen v.

United States, 3 F.4th 875, 883–84 (6th Cir. 2021) (citation omitted).

Here, the Magistrate Judge has recommended that the Court dismiss without prejudice any

FTCA claim Plaintiff may have alleged in her Pro Se Complaint due to the fact that Plaintiff gave

no indication she had exhausted her FTCA claim. Now, as part of her objections to the report and

recommendation, Plaintiff has asserted that she filed an SF95 with the FBI and received a

determination letter prior to filing her federal lawsuit. Instead of dismissing Plaintiff’s case, the

Court finds good cause to allow her to file an amended complaint. “[G]enerally, if it is at all

possible that the party against whom the dismissal is directed can correct the defect in the pleading

or state a claim for relief, the court should dismiss with leave to amend.” Brown, 415 F. App’x at

614 (cleaned up). Dismissal with leave to amend is particularly preferable “where deficiencies in

a complaint are attributable to oversights likely the result of an untutored pro se litigant’s ignorance

of special pleading requirements[.]” Id. at 614–15 (quoting Reynoldson v. Shillinger, 907 F.2d 124,

126 (10th Cir. 1990)).

The Court will permit Plaintiff to file an amended complaint stating her FTCA claim

against the United States of America. Plaintiff’s amended complaint may not re-plead any of the

other claims the Court has dismissed, including a Bivens claim or a claim for violation of 18 U.S.C.

§ 242 or any other federal criminal statute. Furthermore, Plaintiff’s amended complaint should

name the correct party, the United States of America, as the Defendant on her FTCA claim, not an

agency or department of the federal government. Plaintiff should attach to her amended complaint

a copy of her completed SF95 and/or a copy of the determination letter she received from the

Office of General Counsel.

CONCLUSION

The Court hereby ADOPTS the Magistrate Judge’s report and recommendation to dismiss

the Pro Se Complaint sua sponte. The Court will grant Plaintiff leave to file an amended

complaint. Plaintiff’s amended complaint is due within 28 days of the entry of this order. Failure

to comply may result in the dismissal of her case without further notice.

IT IS SO ORDERED.

s/ S. Thomas Anderson

S. THOMAS ANDERSON

UNITED STATES DISTRICT JUDGE

Date: May 21, 2025.