Fawcett v. United States
| Decision Date | 22 July 2014 |
| Docket Number | CASE NO. 4:13CV1828 |
| Court | U.S. District Court — Northern District of Ohio |
| Parties | ANTHONY J. FAWCETT, PLAINTIFF, v. UNITED STATES OF AMERICA, et al., DEFENDANTS. |
On August 20, 2013, pro se Plaintiff, Anthony J. Fawcett ("Plaintiff" or "Fawcett") filed a Complaint against the United States of America ("United States"), Michael Hughes ("Hughes"), and John Doe ("Doe"). Doc. 1. Fawcett seeks relief under the Federal Tort Claims Act ("FTCA") against the United States and brings a Bivens claim against Hughes and Doe for destruction of personal property seized pursuant to a federal search warrant. Id. On January 27, 2014, Defendant United States filed a Motion to dismiss Fawcett's FTCA claim for lack of subject matter jurisdiction.1 Doc. 20.
As set forth more fully below, the United States has not waived sovereign immunity under the FTCA as to Fawcett's tort claim because that claim falls under the detention of goods exceptions to the FTCA's immunity waiver. Thus, the undersigned recommends that Defendant United States' Motion to dismiss (Doc. 20) be GRANTED and Plaintiff's tort claim be DISMISSED WITH PREJUDICE. In the alternative, the undersigned recommends that the United States' Motion to dismiss (Doc. 20) be GRANTED and Fawcett's tort claim beDISMISSED WITHOUT PREJUDICE for failure to exhaust his administrative remedies under the FTCA.
In his Complaint, Fawcett states that the DEA executed a search, pursuant to a Federal search warrant, and seized various items belonging to him. Doc. 1, Complaint ("Cmplt.") ¶¶ 10, 11. Following the search, Fawcett and three others were indicted for various offenses, including possession with intent to distribute 1,000 or more marijuana plants. United States of America v. Anthony J. Fawcett, Case No. 4:05-cr-0545, Fawcett Indictment, Doc. 14;2 See also Cmplt. ¶13. On January 4, 2007, Fawcett entered a plea of guilty to the charges of conspiracy to cultivate, grow, process, possess, and possess with the intent to distribute marijuana, 21 U.S.C. § 846, and felon in possession of firearms and ammunition, 18 U.S.C. §922(g)(1). Cmplt. ¶13-14; United States v. Anthony J. Fawcett, et. al., Case No. 4:05-cr-545, Docs. 95, 180, 181. As part of his plea agreement, Fawcett consented to the forfeiture of certain items; however, Fawcett claims he did not consent to the forfeiture of all items that had been seized pursuant to the search warrant. Specifically, Fawcett claims he did not agree to the forfeiture of: (a) two Federal Aviation Administration log books; (b) personal legal files; (c) a box of loose cancelled checks; (d) a box containing personal receipts and jewelry; (e) various business records; and (f) tax records (hereinafter the "non-forfeited items"). Cmplt. at ¶11.
On March 27, 2013, in the Government's response to Fawcett's Fed. R. Crim. P. 41(g)motion to return property,3 he learned that his non-forfeited items had been "destroyed." Cmplt. ¶15. Initially, DEA Agent Michael Hughes signed an affidavit stating that Fawcett's records and documents had been destroyed in accordance with Government policy. Id. at ¶¶15-16. Hughes later signed a second affidavit stating that "I have recently learned that" the destruction did not occur in accordance with Government policy. Id. at ¶¶15-17. Fawcett claims that the United States failed to provide him notice prior to the destruction of his non-forfeited property. Id. at ¶18. Fawcett also claims that Hughes and/or Doe destroyed or participated in the destruction of his non-forfeited property. Id. at ¶19.
In its Motion to Dismiss, the United States argues that Fawcett's FTCA claim should be dismissed under two theories. Doc. 20-1, pp. 5-9.4 First, the United States claims that Fawcett's tort claim should be dismissed for failure to exhaust administrative remedies. Id. at pp. 5-9. Second, the United States contends that Fawcett's FTCA claim is barred by the detention of goods exception to the FTCA's waiver of immunity. Id. at. p. 9. The first issue presents a factual attack under Federal Rule of Civil Procedure 12(b)(1) and the second issue presents a facial attack under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
To survive a motion to dismiss under Rule 12(b)(6), which is the basis for the United States' argument with respect to the detention of goods exception, a complaint must containsufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). The factual allegations of a pleading must be enough to raise a right to relief above the speculative level. Id. at 555. The Court must accept all well-pleaded factual allegations as true but need not "accept as true a legal conclusion couched as a factual allegation." Id. "Plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1964-65. In ruling on a motion to dismiss, a court may consider: (1) any documents attached to, incorporated by, or referred to in the pleadings; (2) documents attached to the motion to dismiss that are referred to in the complaint and are central to the plaintiff's allegations, even if not explicitly incorporated by reference; (3) public records; and (4) matters of which the court may take judicial notice. Whittiker v. Deutsche Bank Nat'l Trust Co., 605 F.Supp.2d 914, 924-25 (N.D. Ohio 2009).
Rule 12(b)(1) is the basis for the United States' argument with respect to the exhaustion of administrative remedies. The Sixth Circuit has described the procedural framework for ruling on a motion to dismiss under Rule 12(b)(1) as follows:
Rule 12(b)(1) motions to dismiss based upon subject matter jurisdiction generally come in two varieties. A facial attack on the subject matter jurisdiction alleged by the complaint merely questions the sufficiency of the pleading. In reviewing such a facial attack, a trial court takes the allegations in the complaint as true, which is a similar safeguard employed under 12(b)(6) motions to dismiss. On the other hand, when a courtreviews a complaint under a factual attack...no presumptive truthfulness applies to the factual allegations
Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). A facial attack is a challenge to the sufficiency of the pleading itself. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). On such a motion, the court must take the material allegations of the petition as true and construed in the light most favorable to the nonmoving party. Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 235-37, 94 S.Ct. 1683, 1686-87, 40 L.Ed.2d 90 (1974)). A factual attack, on the other hand, is not a challenge to the sufficiency of the pleading's allegations, but a challenge to the factual existence of subject matter jurisdiction. Id. On such a motion, no presumptive truthfulness applies to the factual allegations and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. Id. (citing Ohio Nat'l Life Ins. Co., 922 F.2d at 325).
It is "axiomatic" under the principle of sovereign immunity "that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); accord Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 260, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999) . Moreover, waivers of sovereign immunity must be "unequivocally expressed" in statutory text, and cannot simply be implied. United States v. Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) (internal quotation marks omitted);accord United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003) (). Fawcett's Complaint asserts a tort claim against the United States under the FTCA waiver of sovereign immunity. 28 U.S.C. §§ 2671-2680; Cmplt. ¶¶32-41.
The FTCA waives sovereign immunity for "claims against the United States, for money damages ... for ... loss of property ... 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." 28 U.S.C. § 1346(b). However, this waiver operates subject to numerous conditions which must be satisfied for a court to exercise jurisdiction. See Millares Guiraldes de Tineo v. United States, 137 F.3d at 719. One such condition is an administrative exhaustion requirement that bars an action from being filed in federal court until: (1) the claimant has presented the claim to the appropriate federal agency; and (2) either the agency has denied the claim or six months have passed. See Harris v. City of Cleveland, 7 Fed. App'x 452, 458 (6th Cir.2005); 29 U.S.C. § 2675(a). Furthermore, the FTCA excepts from its § 1346(b) waiver of sovereign immunity, "[a]ny claim arising in respect of ... the detention of any goods, merchandise, or other property by any officer of...
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