Ivey v. US

• Decision Date: 18 January 1995
• Docket Number: Civ. A. No. 1:93-cv-2273-FMH.
• Citation: 873 F. Supp. 663
• Parties: Marvis McDaniel IVEY, Plaintiff, v. UNITED STATES of America; Department of Housing and Urban Development; Patti Smith, Individually and as an employee of the Department of Housing and Urban Development; Betty Etheridge, Individually and as an employee of the Department of Housing and Urban Development; Melody Ligon, Individually and as an employee of the Department of Housing and Urban Development, Defendants.
• Court: U.S. District Court — Northern District of Georgia

873 F. Supp. 663

Marvis McDaniel IVEY, Plaintiff, v. UNITED STATES of America; Department of Housing and Urban Development; Patti Smith, Individually and as an employee of the Department of Housing and Urban Development; Betty Etheridge, Individually and as an employee of the Department of Housing and Urban Development; Melody Ligon, Individually and as an employee of the Department of Housing and Urban Development, Defendants.

Civ. A. No. 1:93-cv-2273-FMH.

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

January 18, 1995.

COPYRIGHT MATERIAL OMITTED

Marvis McDaniel Ivey, pro se.

Jane Wilcox Swift, Asst. U.S. Atty., Atlanta, GA, for defendants.

ORDER

HULL, District Judge.

This action is before the Court on (1) Plaintiff's Motion for Final Default Judgment 6-1, (2) Plaintiff's Motion to Strike Defendants' Motion to Extend Time to Answer 7-1, (3) Defendants' Motion to Dismiss 9-1, and (4) Plaintiff's Motion for Summary Judgment 12-1.

I. Plaintiff's Motions

As a preliminary matter, the Court will address Plaintiff's various motions. On April 28, 1994, the Honorable G. Ernest Tidwell, United States District Judge for the Northern District of Georgia, extended the time Defendants had to respond to Plaintiff's Motion through April 26, 1994.¹ See April 28, 1994 Order 10-1. Defendants filed a Motion to Dismiss on April 26, 1994; within the period granted to Defendants by Judge Tidwell. Therefore, Plaintiff's Motion for Final Default Judgment 6-1 based upon a failure of Defendants to respond is not proper and is DENIED. Similarly, Plaintiff's Motion to Strike Defendants' Motion to Extend Time to Answer 7-1 is no longer a proper pending motion, and is DENIED.

On May 5, 1994, Plaintiff filed a document entitled "Motion for Summary Judgment and Plaintiff's Response to Defendants' Motion to Dismiss." See docket at 12-1. Plaintiff has not complied with the requirements for filing a motion for summary judgment under Local Rule 220-5. See LR 220-5(b) NDGa. Plaintiff has not filed a statement of material facts to which no genuine issue exists, nor has Plaintiff filed a memorandum of law in support of Plaintiff's Motion for Summary Judgment. See Id. Alternatively, even if the Court were to consider Plaintiff's Motion for Summary Judgment, Plaintiff has failed to carry her initial burden as the movant for summary judgment. Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir.1991). Therefore, the Court DENIES Plaintiff's Motion for Summary Judgment 12-1.

II. Defendants' Motion to Dismiss

A. Facts

Although Plaintiff's Complaint is far from clear, Plaintiff seems to allege that she had a home mortgage from Gulf States Mortgage Company that was insured by the United States Department of Housing and Urban Development ("HUD"). Plaintiff apparently sought to have her home mortgage assigned to HUD through the Single Family Home Assignment Program (the "HUD assignment program"). Plaintiff alleges that her application to have her mortgage assigned under the HUD assignment program was denied. It is the denial of her application to the HUD assignment program that forms the basis for Plaintiff's claims. Plaintiff has presumably included Defendants Smith, Etheridge, and Ligon, both in their official and individual capacities, since they are employees of HUD.

In her Complaint, Plaintiff alleges, inter alia, that "initial approval was granted" for Plaintiff's eligibility in the HUD assignment program. Plaintiff also alleges that "Defendant Patti Smith, a white female, intervened in the plaintiff's case maliciously forcing incredible requirements, replacing a previously removed borrower and stating no assignment could be granted because of this replaced borrower," and that "Defendant Ligon has cited the matter to be out of her hands as damage has already occurred. Neither did she correct the blatant errors." See Complaint 1-1, at ¶ 12, 17. Plaintiff also contends that the Ku Klux Klan was involved in HUD's alleged decision not to assign Plaintiff's home mortgage through the HUD assignment program, as follows:

Plaintiff has become accustomed to the signals of Ku Klux Klan influence and its sympathizers. It generally is initialed by the substitution of one worker for another who employs various methods of intimidation and dissuasion and other forms of discrimination. The precise occurrence in this case with blacks and other sympathizers strategically placed.

Complaint 1-1, at ¶ 19. Plaintiff seeks recovery under five separate counts.

In Count One, Plaintiff alleges that Defendants are liable under the Federal Tort Claims Act ("FTCA"), for "Plaintiff's loss of the previously approved assignment through the subversive acts of Defendant Smith with subsequent sanction by Defendants Etheridge and Ligon amount to tort in personal injury and personal property." Complaint 1-1, ¶ 23

In Count Two, Plaintiff alleges that "initial approval was granted by a black caseworker whom the white Defendant Ligon substituted herself and made incredulous requirements upon the Plaintiff. Despite that these requirements were met and only because of the Plaintiff's race, Defendant Smith wrote a false letter of denial claiming `no information.'" Complaint 1-1, ¶ 26. Plaintiff contends that Defendants alleged activity ("this false denial") violated Plaintiff's civil rights.

In Count Three, Plaintiff alleges a violation of the "Civil Rights Act of 1988, as Amended, Title VIII Fair Housing." Complaint 1-1, ¶ 29. Count Four of Plaintiff's Complaint alleges fraud.

In Count Five, Plaintiff alleges violation of her First Amendment Free Speech rights, as follows: "Defendants have committed these acts intentionally and with knowledge have entered into the conspiracy to retaliate against the Plaintiff because of her race and race related free speech activities." Complaint 1-1, ¶ 33, 34.

B. Sovereign Immunity

Plaintiff has named the United States, as well as, HUD, a federal agency, as party defendants. Thus, the Court must examine whether Plaintiff's suit is cognizable in this Court or whether sovereign immunity prevents suit against the Defendants. 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, ___, 112 S.Ct. 1011, 1014, 117 L.Ed.2d 181 (1992); United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). Waiver of sovereign immunity is a prerequisite to subject matter jurisdiction. Sherwood, 312 U.S. at 586, 61 S.Ct. at 769.

In this case, Plaintiff named the United States as well as other party defendants. Nonetheless, Plaintiff's suit is against the United States where a judgment would be paid from the public fisc. "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); Lomas & Nettleton Co. v. Pierce, 636 F.2d 971, 973 (5th Cir.1981). Mindful of the implications of sovereign immunity, the Court will address each count of Plaintiff's Complaint in turn.

C. Count I of Plaintiff's Complaint

In Count One, Plaintiff alleges unspecified tort claims under the FTCA against Defendants. The FTCA operates as a limited waiver of the federal government's sovereign immunity for certain common-law torts. See 28 U.S.C. § 2671 et seq. In a FTCA claim, only the United States is a proper defendant. Vernell for and on Behalf of Vernell v. United States Postal Service, 819 F.2d 108, 109 (5th Cir.1987). Therefore, the Court DISMISSES all of Plaintiff's claims brought under Count One against all Defendants except for the United States.

Defendants also claim that Plaintiff has failed to file an administrative claim with HUD prior to filing her FTCA action. See 28 U.S.C. § 2675(a). The filing of an administrative claim with HUD is jurisdictional and cannot be waived. See Lykins v. Pointer, Inc., 725 F.2d 645, 646 (11th Cir.1984). Defendants contend pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(1) that this Court lacks subject matter jurisdiction over Count One of Plaintiff's Complaint. Attacks on subject matter jurisdiction under FRCP 12(b)(1) come in two forms: (1) facial attacks, and (2) factual attacks. Defendants challenge Plaintiff's Complaint on both grounds.

Facial attacks on the Complaint "require the court merely to look and seek if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in Plaintiff's complaint are taken as true for the purposes of the motion." Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990). Here, Plaintiff has not alleged her compliance with the statutory prerequisite for filing a claim under the FTCA. However, "defective allegations of jurisdiction may be amended." Lykins, 725 F.2d at 647. "To satisfy the jurisdictional requirements `there must be proof of timely written notice of the claim to the appropriate agency.'" Id. Therefore, if Defendants only challenged the sufficiency of the allegations in Plaintiff's Complaint, the Court would consider permitting Plaintiff to amend her Complaint. See Lykins, 725 F.2d at 646. However, allowing such an amendment would be futile because Defendants also make a factual attack on the jurisdictional basis of Plaintiff's action.

Factual attacks challenge "the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matter outside the pleadings, such as testimony and affidavits, are considered." Lawrence, 919 F.2d at 1529; Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980). The Eleventh Circuit explains that in a factual attack, the presumptions of truthfulness afforded a plaintiff under FRCP 12(b)(6) do not...