Dorman v. Simpson

• Decision Date: 08 June 1995
• Docket Number: Civ. A. No. 1:94-CV-2568-FMH.
• Parties: Frank S. DORMAN, Plaintiff, v. John R. SIMPSON, Sam Samples, David Williams, Unknown Rogers, and Ray Essex, Defendants.
• Court: U.S. District Court — Northern District of Georgia

893 F. Supp. 1073

Frank S. DORMAN, Plaintiff, v. John R. SIMPSON, Sam Samples, David Williams, Unknown Rogers, and Ray Essex, Defendants.

Civ. A. No. 1:94-CV-2568-FMH.

United States District Court, N.D. Georgia, Atlanta Division.

June 8, 1995.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Plaintiff pro se.

Patricia Rebecca Stout, Office of U.S. Atty., N.D. of Georgia, Atlanta, GA, for defendants.

ORDER

HULL, District Judge.

On September 23, 1994, Frank S. Dorman ("Plaintiff"), currently an inmate at the United States Penitentiary, Atlanta, Georgia, filed this Complaint 1-1, alleging that Defendants violated his due process rights by conducting Plaintiff's federal parole revocation hearing in Georgia as opposed to New York. All Defendants are federal actors and thus the Court treats Plaintiff's Complaint as one brought under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

This is at least Plaintiff's third time in federal district court raising claims against federal parole or probation officials in connection with his convictions or sentences. In 1986, Plaintiff filed suit in the Southern District of New York, alleging that Plaintiff's probation officer falsified Plaintiff's presentence report. Judge Constance Baker Motley dismissed Plaintiff's complaint based on absolute immunity. The Second Circuit affirmed that decision in Dorman v. Higgins, 821 F.2d 133 (2d Cir.1987). Additionally, Plaintiff has another suit pending against federal officials in the Eastern District of New York, wherein Plaintiff raised many of the allegations he raises in his Complaint in the action in this Court.¹

This matter is before the Court on Defendants' Motion to Dismiss. After reviewing the record in its entirety, the Court grants Defendants' Motion to Dismiss based on sovereign immunity, lack of service, absolute immunity, qualified immunity, failure to exhaust administrative remedies, and for failure to state a claim against these Defendants.

I. FACTUAL BACKGROUND

A. ALLEGATIONS IN PLAINTIFF'S COMPLAINT AND LATER PLEADINGS

On September 23, 1994, Plaintiff filed his Complaint 1-1 in this Court. This Complaint was filed before Plaintiff's final revocation hearing in December, 1994. Plaintiff's Complaint does not allege that Defendants violated any of Plaintiff's constitutional or statutory rights, but rather contains a narrative of certain events which Plaintiff apparently feels entitles him to relief.

Plaintiff's Complaint alleges that he signed for his revocation hearing to be held in Brooklyn because his attorney, a major witness, and his parole officer were in Brooklyn. Plaintiff continues that he has not been convicted on any new offenses, and that he denies all alleged parole violations. Plaintiff's Complaint also alleges that United States Parole authorities altered a document purporting to give Plaintiff's consent to have Plaintiff's revocation hearing conducted in Atlanta.

On November 9, 1994, Plaintiff filed an untitled pleading 3-1, 3-2, 3-3 wherein Plaintiff moves the Court to release Plaintiff, to grant monetary damages, and to grant any additional relief based on the violation of Plaintiff's due process and constitutional rights by the United States Parol Commission. In this pleading, Plaintiff explains in more detail the allegations in his initial Complaint. In particular, Plaintiff explains that the document, allegedly altered, was a CJA-22 form which Plaintiff signed authorizing the Eastern District of New York to appoint him counsel. Plaintiff alleges that this CJA-22 form was altered to reflect that Plaintiff consented to be appointed counsel in the Northern District of Georgia. Plaintiff later alleges the alteration occurred by striking through the Eastern District of New York and placing the Northern District of Georgia in its place. Plaintiff does not allege his signature was altered, but that this cross-out constituted an unauthorized alteration.

In this later pleading, Plaintiff also alleges that Plaintiff's preliminary parole revocation hearing was held in Atlanta on May 25, 1994, without Plaintiff's being there. Plaintiff alleges that additional parole revocation hearings were then held in Atlanta on August 9, 1994, and October 25, 1994, and that Plaintiff's attorney, Russell Gabriel of the Federal Public Defender's Office in Atlanta, continued to request that the hearing be held in New York. According to Plaintiff, his parol revocation hearing was again continued until December 13, 1994. Although Plaintiff's pleading specifically references several hearings he attended, Plaintiff concludes that he has been "adjudged guilty without a hearing" and without an opportunity to defend himself.

In the same November 9, 1994 untitled pleading, Plaintiff also attaches a copy of a letter from attorney Douglas Morris, Plaintiff's appointed counsel in New York, where Morris states that despite contacting various parole officials, "I was unable to convince them to keep the case here in New York."

In his November 9, 1994 untitled pleading, Plaintiff also attaches a copy of his "pre-review revocation hearing", which alleges that while on parole in New York, Plaintiff left the district without permission, failed to report, issued a bad check for $80,000 to Brenda Orr in Decatur, Georgia, and obtained credit cards from Brenda Orr in Georgia and his former common law wife, Francis Thomas, and then used those credit cards without permission. The report states that Plaintiff "is currently 60 years of age and previously incurred over 31 arrests and at least 15 prior commitments primarily for fraud. This is subject's third violation of parole on his federal sentences."

Plaintiff filed this Complaint in September, 1994 prior to his final parole revocation hearing in December, 1994. It was not until January, 1995 that the Regional Commissioner concurred with the panel's recommendations and ordered that Plaintiff's mandatory release be revoked and that Plaintiff be continued to expiration. Pursuant to 28 C.F.R. § 2.26, Plaintiff has the right to appeal this decision to the Commission's National Appeals Board.

B. DEFENDANTS NAMED IN PLAINTIFF'S COMPLAINT

Plaintiff names these five Defendants in his Complaint: (1) John R. Simpson, a member of the United States Parole Commission in Chevy Chase, Maryland; (2) Sam Samples, the Commission's Southeast Regional Director in Atlanta; (3) David Williams, a United States Probation Officer in Brooklyn, New York; (4) "Unknown" Rogers, the examiner who conducted Plaintiff's preliminary revocation hearing in Atlanta; and (5) Ray Essex, the examiner who conducted Plaintiff's August 9, 1994 revocation hearing.²

II. DISCUSSION

Plaintiff's Complaint is not clear whether Plaintiff is suing Defendants in their official or individual capacities, or both. Thus, the Court will examine both.

A. SOVEREIGN IMMUNITY

To the extent Plaintiff sues Defendants in their official capacities, that portion of Plaintiff's action is really against the United States. Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); Peppers v. Coates, 887 F.2d 1493, 1499 (11th Cir.1989). "An action is one against the United States as a sovereign where the judgment sought is to be satisfied from monies of the federal treasury, or where the judgment interferes with public administration, or where the judgment's effect is to compel or restrain the government's actions." Panola Land Buyers Ass'n v. Shuman, 762 F.2d 1550, 1555 (11th Cir.1985). Thus, the Court finds that Plaintiff's suit against Defendants in their official capacities is really a suit against the United States and is subject to dismissal because of the United States' sovereign immunity.

The United States is immune from suit unless there has been an unequivocal waiver of immunity. United States v. Nordic Village, Inc., 503 U.S. 30, 32-33, 112 S.Ct. 1011, 1014, 117 L.Ed.2d 181 (1992); United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607, r'hng denied, 446 U.S. 992, 100 S.Ct. 2979, 64 L.Ed.2d 849 (1980); McCollum v. Bolger, 794 F.2d 602 (11th Cir.1986). Waiver of sovereign immunity is a prerequisite to subject matter jurisdiction. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). Accordingly, the only way Plaintiff's claims for monetary relief against Defendants in their official capacities can stand is if the United States has consented to be sued for the type of wrongs of which Plaintiff complains.

The United States has not consented to be sued for the types of wrongs of which Plaintiff complains. The United States has not waived its immunity from suits for money damages arising from constitutional violations. United States v. Timmons, 672 F.2d 1373, 1380 (11th Cir.1982); Kunkler v. Fort Lauderdale Housing Authority, 764 F.Supp. 171, 176 (S.D.Fla.1991).

The sole and exclusive statutory waiver of sovereign immunity of the United States for actions alleging tortious conduct is the Federal Torts Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq. (1994). Since Plaintiff has failed to bring his claims under the FTCA, Plaintiff's claims are barred by sovereign immunity. 28 U.S.C. § 2675(a) (the Federal Torts Claims Act); Hunt v. Department of the Air Force, 29 F.3d 583, 587 (11th Cir.1994) ("Sovereign immunity can be waived only by the sovereign, and the circumstances of its waiver must be scrupulously observed, and should not be expanded nor constricted by the courts."); Ross v. United States, 574 F.Supp. 536, 540-41 (S.D.N.Y.1983).

Even if the Court construed Plaintiff's claims as common law tort claims brought under the FTCA, Plaintiff's claims still would be barred by sovereign immunity because the FTCA does not waive immunity for tort claims which are constitutional in nature. 28 U.S.C. § 2674 (1994); FDIC v. Meyer, ___ U.S. ___, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); United...