Brown v. Colantuono, et al.

Brown v . Colantuono, et a l . 05-CV-125-SM 06/15/05

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Edward-Lewis: Brown and

Elaine-Alice: Brown,

v. Civil N o . 05-cv-125-SM

Opinion N o . 2005 DNH 093

Thomas P. Colantuono,

William E . Morse, James P. John

and John J. Hickey,

O R D E R

Plaintiffs, Edward-Lewis: Brown and Elaine-Alice: Brown,

bring this action against four employees of the federal

government. The Browns seek damages for alleged state common law

torts they say were committed during the course of a search of

their property. The Browns originally filed their complaint in

the Grafton County (New Hampshire) Superior Court, but defendants

removed the action to this court. Defendants now move the court

to substitute the United States as the defendant to all claims

advanced in the Browns’ complaint. And, say defendants, once the

United States is substituted as the proper party to this action,

the court should dismiss all of the Browns’ claims for lack of

subject matter jurisdiction. The Browns have not objected.

Background

The Browns are apparently the subject of an ongoing grand

jury investigation. As part of that investigation, federal

agents, including Special Agent James John of the Internal

Revenue Service and Postal Inspector John Hickey, executed a

search warrant (issued by a United States magistrate judge) at

Half Hollow Dental Center, a business owned and/or operated by

the Browns. But, because the Browns do not recognize the

validity or the authority of the federal government, they seem to

suggest that the search was conducted without a warrant and claim

the agents who conducted the search were acting “without

jurisdiction.” Complaint at paras. 11 and 15. 1

Accordingly, say the Browns, the agents who executed the

search warrant (as well as those who sought and/or obtained the

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In their complaint, the Browns point out that they are

“natural-born living souls, living in a state of nature, and in a

quasi-state of society, under contract, State citizens, of these

united [sic] States of America, not UNITED STATES citizens,

domiciled in the state of New Hampshire.” Complaint at para. 2 .

They also assert that there “is no federal jurisdiction (in any

of the fifty union states of these united [sic] States of

America, a guaranteed republic), by these de facto UNITED STATES

agents [i.e., the individually named defendants].” Id. at para.

4.

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warrant) committed numerous state common law torts, including

trespass, reckless endangerment, and false imprisonment. Their

complaint does not advance any federal causes of action and, in a

pleading filed with the state superior court, the Browns made

clear that “[a]ll charges listed are civil tort charges, under

the jurisdiction of the state. There are no federal decisions to

be made in this case.” Attachment 1 to Declaration of Judith

Northrup Prindville (document n o . 3 ) , Motion to Remain Civil

Action in State Court, at paras. 1-2.

Discussion

I. The Federal Tort Claims Act.

The Court of Appeals for the First Circuit has provided the

following brief overview of the Federal Tort Claims Act (“FTCA”):

The FTCA waives the sovereign immunity of the United

States with respect to tort claims, see 28 U.S.C. §

2674, and provides the exclusive remedy to compensate

for a federal employee’s tortious acts committed within

his or her scope of employment. See 28 U.S.C. § 2679.

In order to bring a tort claim against the United

States under the FTCA, a claimant must first file an

Administrative Claim with the appropriate federal

agency within two years of the accrual of the claim and

then file a tort claim against the United States within

six months after a denial of (or failure to act upon)

that claim by the administrative agency. See 28 U.S.C.

§§ 2401(b), 2675. In addition, the FTCA requires that

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the named defendant in an FTCA action be the United

States and only the United States. 28 U.S.C. §§

1346(b), 2674, 2679(a).

Roman v . Townsend, 224 F.3d 2 4 , 27 (1st Cir. 2000)(emphasis

supplied). See also Dynamic Image Techs., Inc. v . United States,

221 F.3d 3 4 , 39 (1st Cir. 2000).

II. The United States is the Proper Defendant.

The Browns’ complaint names as defendants Thomas P.

Colantuono and William Morse, employees of the United States

Department of Justice, James P. John, an employee of the United

States Department of the Treasury, and John J. Hickey, an

employee of the United States Postal Service. All claims in the

complaint arise out of the execution of a federal search warrant

and the Browns’ subsequent (failed) efforts to unseal the

affidavit submitted in support of that warrant. Thus, the Browns

seek damages for actions defendants undertook while acting within

the scope of their federal employment. See Exhibit B to

Declaration of Judith Northrup Prindville, Certification of

Joseph LaPlante, Acting United States Attorney for the District

of New Hampshire.

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Because the Browns seek damages for torts allegedly

committed by federal employees while acting within the scope of

their employment, the only proper defendant to this action is the

United States. See Roman, 224 F.3d at 2 7 . Accordingly,

defendants’ motion to substitute the United States as defendant

is granted and all claims against the individually named

defendants are dismissed.

III. The FTCA’s Exhaustion Requirement.

As noted above, before a party may file an FTCA claim

against the United States, that party must first present his or

her claim to the appropriate federal agency. Then, if the claim

is denied (or if no action is taken on the claim within 6

months), the party may bring an action against the United States.

See 28 U.S.C. § 2675(a). Here, perhaps because they say they do

not recognize the legitimacy of the federal government, the

Browns have not filed any administrative claims with regard to

the conduct underlying their lawsuit. Accordingly, they have

failed to exhaust their administrative remedies and this court

lacks jurisdiction over their tort claims. See, e.g., Cotto v .

United States, 993 F.2d 2 7 4 , 280 (1st Cir. 1993) (“Exhaustion of

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plaintiffs’ administrative remedies is a jurisdictional

prerequisite to the prosecution of their FTCA claims.”).

IV. Federal Claims.

As noted above, the Browns have expressly denied advancing

any federal claims; they have specifically stated (in prior state

court filings) that their removed complaint raises exclusively

state common law claims. They are obviously aware that they

could have attempted to assert federal claims, but they have

consciously chosen not to do s o . They are certainly at liberty

to make that choice, and having made i t , further analysis of

potential federal claims is unnecessary.

Conclusion

As defendants correctly point out, the United States is the

proper defendant in this action. It has waived sovereign

immunity only as set out in the Federal Tort Claims Act, and is

not subject to suit in state court. To the extent plaintiffs

seek to sue federal agents for acts committed within the scope of

their employment, the United States must be substituted as the

proper party defendant. Accordingly, the Browns’ claims against

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the individual defendants are dismissed and the United States

shall be substituted as defendant.

With regard to the Browns’ claims against the United States,

they too must be dismissed. The FTCA is a limited waiver of

sovereign immunity. Among other things, it provides that before

a party may bring a civil action against the United States,

seeking damages for alleged torts committed by a federal employee

acting within the scope of his or her federal employment, the

claimant must first file an administrative claim with the

appropriate federal agency(s). The FTCA’s administrative

exhaustion requirement is a jurisdictional prerequisite to suit

and cannot be waived. Here, because the Browns have failed to

exhaust the required administrative remedies, this court lacks

jurisdiction over their tort claims.

For the foregoing reasons, as well as those set forth in

defendants’ memorandum of law, defendants’ unopposed motion to

substitute the United States as defendant and to dismiss all

claims (document n o . 3 ) is granted. The Clerk of Court shall

enter judgment in accordance with this order and close the case.

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SO ORDERED.

Steven J. McAuliffe

Chief Judge

June 1 5 , 2005

cc: Edward-Lewis: Brown

Elaine-Alice: Brown

Gretchen L . Witt, Esq.

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