Nevers v. United States Dep't of Justice
| Decision Date | 31 January 2022 |
| Docket Number | Civil Action 21-1064 |
| Parties | SHAWANDA NEVERS v. UNITED STATES DEPARTMENT OF JUSTICE, ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
SECTION “E” (1)
ORDER AND REASONS
Before the Court is a “Rule 12(b)(6) Motion to Dismiss Plaintiff's Complaint, ”[1] filed by Defendant Volunteers of America Southeast Louisiana (“VOA”), incorrectly identified by Plaintiff as Volunteers of America of Greater New Orleans, Inc.” Plaintiff Shawanda Nevers (“Plaintiff”) did not file an opposition. The VOA filed a supplemental memorandum[2] in support of its motion to dismiss.
For the reasons that follow, the motion is GRANTED.
At the time this complaint was filed, Plaintiff was a federal prisoner in the custody of the Federal Bureau of Prisons in the State of Louisiana.[3] Plaintiff alleges she was placed on home confinement on July 5, 2020.[4] Plaintiff was re-incarcerated at St. Tammany Parish Jail on November 8 2021, and on January 18, 2022, Plaintiff was released from custody and is now serving a term of supervised release.[5] Plaintiff attempted to institute this prisoner's civil rights action on May 28, 2021; however, her complaint was marked deficient.[6] Plaintiff's complaint was eventually accepted for filing on July 15, 2021.[7] On July 22, 2021, the Court granted Plaintiff's motion for leave to proceed in forma pauperis.[8] Plaintiff also filed a motion to amend her complaint, [9] and the Court granted the motion;[10] however, Plaintiff failed to file an amended complaint. As a result, Plaintiff's original complaint[11] is operative. On July 22, 2021 Plaintiff filed an “Emergency Motion for Temporary Restraining Order and Preliminary Injunction;[12] and the Court denied the motion for temporary restraining order.[13] On January 10, 2022, Plaintiff filed a second “Emergency Motion for Temporary Restraining Order and Preliminary Injunction.”[14] On January 12, 2022, the Court denied Plaintiff's second motion for temporary restraining order and preliminary injunction.[15]
In her complaint, Plaintiff brings claims under the Federal Tort Claims Act, claims pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (“Bivens”), and claims to “redress the deprivation, under color of law, ” of rights secured by the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.[16] Plaintiff lists as defendants the VOA, the United States Department of Justice, the Federal Bureau of Prisons, and several individual defendants allegedly employed by VOA.[17] In her complaint, Plaintiff alleges “the Residential Re-Entry Facility (Halfway House) run by [VOA] over[sees] the Homes Confinement process.”[18] Plaintiff alleges VOA “is a private company that own[s] and operate[s] federal halfway houses, ” and that VOA “contracted with the Federal Bureau of Prisons (BOP) to operate the Halfway House where they oversee federal prisoners.”[19] Plaintiff further alleges VOA is “adhering to policies of the Federal Bureau of Prisons thus Denying Ms. Nevers [Plaintiff] her constitutional rights.”[20] Specifically, Plaintiff alleges facility staff at the halfway house denied her requests for approval to run essential errands such as purchasing feminine hygiene products and legal supplies, made phone calls to Plaintiff between the hours of 12:00 a.m. and 5:30 a.m. thereby depriving her of sleep, caused irreparable harm to her health by denying her requests to go outside to exercise, targeted and harassed her thereby diminishing her health, disciplined her “with bogus incident reports, ” and denied her the ability to attend faith-based and religious services.[21] Plaintiff alleges the actions of halfway house staff amount to, among other things, cruel and unusual punishment, denial of access to the courts, denial of due process, deliberate indifference to her medical needs, and denial of her right to equal protection.[22] Plaintiff claims “each defendant acted under the color of federal law.”[23] Plaintiff claims VOA, “following the Federal Bureau of Prisons policy, ” demonstrated deliberate indifference to her medical needs, subjected her to cruel and unusual punishment, and denied her constitutional rights secured by the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.[24]Plaintiff seeks damages and injunctive relief.[25]
On November 24, 2021, the VOA filed the instant motion, asking the Court to dismiss Plaintiff's claims against it under Federal Rule of Civil Procedure 12(b)(6).[26] On December 16, 2021, Plaintiff filed a motion for extension of time, [27] and the Court granted Plaintiff until January 14, 2022 to file an opposition to the VOA's motion to dismiss.[28]Plaintiff failed to file an opposition to the VOA's motion to dismiss.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss a complaint, or any part of it, for failure to state a claim upon which relief may be granted if the plaintiff has not set forth factual allegations in support of her claim that would entitle her to relief.[29] “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'”[30]“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.”[31] The court, however, does not accept as true legal conclusions or mere conclusory statements, and “conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.”[32] “[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements” or “naked assertion[s] devoid of further factual enhancement” are not sufficient.[33]
“Factual allegations must be enough to raise a right to relief above the speculative level.”[34] “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.”[35] “Dismissal is appropriate when the complaint ‘on its face show[s] a bar to relief.'”[36]
Finally, because Plaintiff is a pro se litigant, the Court will apply less stringent standards because pro se complaints “must be held to less stringent standards than formal pleadings drafted by lawyers.”[37] However, “even a liberally construed pro se complaint “must set forth facts giving rise to a claim on which relief may be granted.”[38]
As mentioned above, Plaintiff failed to file an opposition to the VOA's motion to dismiss, and so has failed to defend her claims against the arguments lodged by VOA in its motion to dismiss.[39] In dismissing a plaintiff's claims district courts within the Fifth Circuit have expressly applied the rule that a plaintiff's failure to defend her claims beyond her complaint constitutes waiver or abandonment of those claims.[40] Regardless of whether Plaintiff's failure to respond to the issues raised by the VOA in its motion to dismiss results in a waiver or abandonment of those issues at the district court level, the Court will not dismiss Plaintiff's complaint with prejudice merely because she failed to respond to the VOA's motion to dismiss.[41] The Fifth Circuit has held it is improper for a district court, without considering the merits of the arguments before it, to grant a motion to dismiss solely because it is unopposed.[42] “Although failure to respond to a motion will be considered a statement of no opposition, the court is not required to grant every unopposed motion.”[43] Dismissal of the complaint with prejudice in such a case is tantamount to a sanction, and such a dismissal risks running afoul of the Fifth Circuit's “established rule that dismissal is only appropriate after consideration of less severe sanctions by the trial court and a clear record of contumacious conduct or extreme delay.”[44] As a result, the Court will grant the VOA's motion to dismiss only if it has merit.
Plaintiff's claim against VOA under the Federal Tort Claims Act should be dismissed with prejudice.
The Fifth Circuit has recognized the FTCA “provides the sole basis of recovery for tort claims against the United States.”[48]
In its motion to dismiss, the VOA argues Plaintiff's FTCA claims against it should be dismissed because it is a contractor of the BOP, and the “FTCA does not extend to alleged acts of contractors of the United States.”[49] The Court agrees.
In Menteer v. Applebee, a panel of the Tenth Circuit Court of Appeals, in an unpublished opinion, addressed the claims of a federal prisoner incarcerated at a private prison, which were brought...
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