Bashir v. U.S.
| Decision Date | 14 June 2007 |
| Docket Number | No. 3:05-cv-1165-J-12HTS.,3:05-cv-1165-J-12HTS. |
| Citation | 506 F.Supp.2d 1178 |
| Parties | El-Amin BASHIR, Plaintiff, v. UNITED STATES [of] America, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
El Amin Bashir, Yazoo City, MS, Pro se.
Roberto H. Rodriguez, Jr., U.S. Attorney's Office, Jacksonville, FL, for Defendant.
On October 31, 2005, Plaintiff El-Amin Bashir filed a pro se Complaint pursuant to the Federal Tort Claims Act (hereinafter FTCA), 28 U.S.C. § 1346(b), in the United States District Court for the Southern District of New York. In the Complaint, Plaintiff claims that the United States Marshal's Service, as an agency of the United States, is responsible for the loss of his property, specifically various articles of personal clothing to wear during his federal criminal trial. Since a substantial part of the acts or omissions giving rise to the Complaint occurred in the judicial district of the Middle District of Florida, the case was transferred to this Court. See Case No. 1:05-cv-9192-MBM, Transfer Order (Doc. # 3), filed October 31, 2005.
Before this Court are two pending motions: Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment (Doc. # 33) (hereinafter Motion for Summary Judgment) with a Memorandum in Support of Defendant's Motion to Dismiss or for Summary Judgment (Doc. # 32) (hereinafter Defendant's Memorandum) and Plaintiffs Motion to Preclude Summary Judgment and Motion to Dismiss Defendant's Request for Summary Judgment (Doc. # 38), filed May 29, 2007.1 Since Plaintiff is appearing pro se, the Court previously advised him of the provisions of Fed.R.Civ.P. 56 and gave him an opportunity to respond. See Court's Order (Doc. # 35), filed March 30, 2007. Plaintiff has responded to the Motion for Summary Judgment. See Plaintiff's Motion to Preclude Summary Judgment and Motion to Dismiss Defendant's Request for Summary Judgment (Doc. # 38). Thus, the Motion for Summary Judgment is ripe for review.
With respect to the standard for granting summary judgment, the Eleventh Circuit Court of Appeals has stated:
[S]ummary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
In re Optical Technologies, Inc., 246 F.3d 1332, 1334 (11th Cir.2001).
The parties' respective burdens and the Court's responsibilities are outlined as follows:
The party seeking summary judgment bears the initial burden to demonstrate to the district court the basis for its motion for summary judgment and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions which it believes show an absence of any genuine issue of material fact. Taylor v. Espy, 816 F.Supp. 1553, 1556 (N.D.Ga.1993) (citation omitted). In assessing whether the movant has met this burden, the district court must review the evidence and all factual inferences drawn therefrom, in the light most favorable to the non-moving party. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.1992); Rollins v. Tech-South, Inc., 833 F.2d 1525, 1528 (11th Cir.1987). If the movant successfully discharges its burden, the burden then shifts to the non-movant to establish, by going beyond the pleadings, that there exist genuine issues of material fact. Matsushita Electric Industrial Co. v. Zenith Radio Corp.[,] 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991).
Applicable substantive law will identify those facts that are material. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Genuine disputes are those in which the evidence is such that a reasonable jury could return a verdict for the non-movant. Id. For factual issues to be considered genuine, they must have a real basis in the record. Matsushita, 475 U.S. at 586-87," 106 S.Ct. at 1355-56. It is not part of the court's function, when deciding a motion for summary judgment, to decide issues of material fact, but rather determine whether such issues exist to be tried. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510., The Court must avoid weighing conflicting evidence or making credibility determinations. Id. at 255, 106 S.Ct. at 2513-14. Instead, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. Where a reasonable fact finder may "draw more than one inference from the facts, and that inference creates a general issue of material fact, then the court should refuse to grant summary judgment." Barfield v. Brierton, 883 F.2d 923, 933-34 (11th Cir.1989) (citation omitted).
Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 918-19 (11th Cir.1993).
"It is true that on a motion for summary judgment, all reasonable inferences must be made in favor of the non-moving party." Cuesta v. School Bd. of Miami-Dade County, 285 F.3d 962, 970 (11th Cir.2002) (citation omitted). "A court need not permit a case to go to a jury, however, when the inferences that are drawn from the evidence, and upon which the non-movant relies, are `implausible."' Id. (citations omitted).
If a reasonable jury could not find in favor of the nonmoving party, no genuine issue of material fact does exist; and summary judgment is proper. Beal v. Paramount Pictures Corp., 20 F.3d 454, 459 (11th Cir.1994). A mere scintilla of evidence in support of the nonmoving party will not suffice to overcome a motion for summary judgment. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997). As Fed.R.Civ.P. 56(e) states, "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."
Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir.2004).
In the Complaint, Plaintiff Bashir alleges that he was arrested on or about April 19, 2002. Complaint at 1 (citing Case No 3:02-cr-115-J-32TEM-2). On or about March 2, 2003, prior to the commencement of the federal criminal trial, Plaintiffs attorney Daniel Smith, Esquire, gave the United States Marshal's Service various articles of personal clothing for Plaintiff Bashir to wear during the trial: two Ralph Lauren suits, two linen Ralph Lauren shirts, two crew neck shirts, four pairs of slacks, a pair of Salvatore Ferragamo loafers and a pair of Mauri loafers. Id. at 2. After the trial ended on or about March 12, 2003, Mr. Smith went to the United States Marshal's Office to retrieve the articles of clothing. Id. In the process of returning the articles of clothing to Plaintiff's wife, it was discovered that the following items were not returned with the other articles of clothing: a black Ralph Lauren suit (valued at $750.00); a navy blue Ralph Lauren suit (valued at $750.00); a black linen Ralph Lauren shirt (valued at $150.00); a blue linen Ralph Lauren shirt (valued at $150.00); and a pair of Salvatore Ferragamo loafers (valued at $350.00). Id. The total value of the lost items is $2,150.00. Id.
Both Plaintiffs wife and Mr. Smith contacted the United States Marshal's Office numerous times to attempt to repossess the items. Id. at 2-3. Eventually, Plaintiffs wife and Mr. Smith were informed by the United States Marshal's Office that the articles of clothing had more than likely been lost during the relocation of the Marshal's Office. Id. at 3. Plaintiff concludes that the articles of clothing were negligently lost by the United States Marshal's Office during the relocation. Id. As relief, Plaintiff seeks compensatory damages in the amount of $2,150.00 for the lost articles of clothing, attorney's fees, incurred court costs and any other relief that this Court deems equitable. Id.
In Defendant's Motion for Summary Judgment, Defendant claims that Plaintiff failed to timely file his Complaint after having received a certified letter denying the administrative claim, as required by 28 U.S.C. § 2401(b). Motion for Summary Judgment at 4, 5-7. As noted by Defendant, actions brought under the FTCA must be pursued in compliance with the procedures set forth in that Act. Among the procedures mandated by the FTCA is the requirement that litigation must be filed, if at all, within six months after an agency's denial of the administrative claim. More specifically, the FTCA provides:
A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.
28 U.S.C. § 2401(b) (emphasis added). Thus, to comply with the FTCA's statute of limitations, a plaintiff must file an administrative claim within two years after the date his claim accrues and file an action within six months after the agency mails its denial of the administrative claim. Phillips v. United States, 260 F.3d 1316, 1317 (11th Cir.2001); Shoff v. United States, 245 F.3d 1266, 1267-68 (11th Cir. 2001).
On January 31, 2005, the United States Marshal's Service received an administrative claim prepared by Plaintiff Bashir that had been referred by the Federal Bureau of Prisons, Northeast Regional Office. Defendant's Memorandum, Declaration of Jessica Born, an attorney for the United States...
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...claim accrues and file an action within six months after the agency mails its denial of the administrative claim." Bashir v. U.S., 506 F.Supp.2d 1178, 1181 (M.D.Fla.2007) (citing Phillips v. U.S., 260 F.3d 1316, 1317 (11th Cir.2001); Shoff v. U.S., 245 F.3d 1266, 1267-68 (11th Cir.2001)). "......