Samuels v. Bureau of Prisons, Civil Action No. 06-40085-RCL.

• Decision Date: 27 July 2007
• Docket Number: Civil Action No. 06-40085-RCL.
• Citation: 498 F.Supp.2d 415
• Parties: Julian SAMUELS, Plaintiff, v. BUREAU OF PRISONS, Defendant.
• Court: U.S. District Court — District of Massachusetts

498 F.Supp.2d 415

Julian SAMUELS, Plaintiff, v. BUREAU OF PRISONS, Defendant.

Civil Action No. 06-40085-RCL.

United States District Court, D. Massachusetts.

July 27, 2007.

COPYRIGHT MATERIAL OMITTED

Jennifer C. Boal, Anton P. Giedt, United States Attorney's Office, Boston, MA, for Defendant.

MEMORANDUM AND ORDER ON DEFENDANT BUREAU OF PRISONS' MOTION TO DISMISS

LINDSAY, District Judge.

Before me is a motion to dismiss the complaint of pro se plaintiff Julian Samuels ("Samuels" or the "plaintiff'), an inmate at the Federal Medical Center in Devens, Massachusetts ("FMC Devens"). Samuels alleges that certain of his personal property was lost during his transfer to FMC Devens from the Special Housing United ("SHU") at the Federal Corrections Institute in Fairton, New Jersey ("FCI Fairton"). He filed the present complaint pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671-2680 ("FTCA"), against the Bureau of Prisons ("BOP"), seeking damages for the allegedly misplaced property.¹ Citing 28 U.S.C. § 2680, the BOP asserts that the FTCA does not apply to the detention of property by law enforcement officers at federal prison facilities, and that the sovereign immunity of the United States for claims of the kind brought by Samuels, therefore, has not been waived. On this basis, the BOP contends that the re-styled complaint fails as a matter of law and must be dismissed pursuant to Fed.R.Civ.P. 12(b)(1) and (6) for lack of subject-matter jurisdiction and for failure to state a claim respectively.

I. BACKGROUND

Samuels is currently serving a 248 month sentence for possession with intent to deliver cocaine base, possession of more than five grams of cocaine base within 1,000 feet of a school, and for being a felon in possession of a firearm. He was sentenced on July 17, 2004 and began his incarceration at FCI Fairton on August 2, 2004. He was designated for transfer to FMC Devens on February 22, 2005 and arrived there on May 3, 2005. Samuels claims that following an inventory of his property at FMC Devens, he found several items missing. He filed an administrative claim on July 18, 2005 with respect to the items he alleges to have been missing. In that claim, he asserted that the missing property was valued at $2085.55. After an investigation, the BOP denied the claim, asserting that it could not reconcile the plaintiffs claimed " losses with available property inventory records and that Samuels could not otherwise provide evidence of all of his claimed losses. When settlement negotiations between the parties failed, Samuels commenced the present action.

II. DISCUSSION

A. Standard for Motion to Dismiss

Because "the United States, as sovereign, may not be sued without its consent, [j]urisdiction must be found in an express Congressional waiver of immunity or consent to be sued." Murphy v. United States, 45 F.3d 520, 522 (1st Cir.1995) (internal citations omitted). On both a 12(b)(1) motion to dismiss founded on considerations of sovereign immunity and a 12(b)(6) motion to dismiss for failure to state a claim, the court must accept as true all well pleaded factual allegations in the complaint and draw _all reasonable inferences in favor of the plaintiff. Toledo v. Sanchez, 454 F.3d 24, 30 (1st Cir.2006); Cordero-Hernandez v. Hernandez-Ballesteros, 449 F.3d 240, 244 n. 3 (1st Cir. 2006); Murphy, 45 F.3d at 522. The Supreme Court has recently said, however, that a "formulaic recitation of the elements of a cause of action will not do," Bell Atlantic Corp. v. Twombly, ___ U.S. ___, ___, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)), because "[f]actual allegations must be enough to raise a right to relief above the speculative level [assuming] that all the allegations in the complaint are true (even if doubtful in fact)." Id. (citation and internal quotation omitted). Thus, to survive a motion to dismiss under Rule 12(b)(1) and (6), the complaint must state a plausible claim for relief over which the court has jurisdiction. Id. at 1974; see Murphy, 45 F.3d at 522. See also Arturet Velez v. R.J. Reynolds Tobacco Co., 429 F.3d 10, 13 (1st Cir.2005) ("allegations of the complaint are generally to be taken as true for purposes of a motion to dismiss, and the complaint should not be dismissed if a claim can plausibly be embraced by those allegations").

B. The Language of the Federal Tort Claims Act

The FTCA constitutes a limited waiver of sovereign immunity under which the United States may be held liable for claims for money damages:

for injury or loss of property, or personal injury or death 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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1). "This waiver of sovereign immunity itself has exceptions, which `define the limits of federal subject matter jurisdiction in this area.'" Montijo-Reyes v. United States, 436 F.3d 19, 24 (1st Cir.2006) (quoting Hydrogen Tech. Corp. v. United States, 831 F.2d 1155, 1161 (1st Cir.1987)). See Rakes v. United States, 442 F.3d 7, 18 (1st Cir.2006) ("Courts have no jurisdiction over claims against the federal government, except where the government has expressly waived its immunity.").

Section 2680(c) of the FTCA excepts from the waiver of sovereign immunity "[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise or other property by any officer of customs or excise or any other law enforcement officer."² The BOP argues that its officers are included in the category described by the words "any other law enforcement officer," that for this reason sovereign immunity is not waived for claims against BOP officers, and that the plaintiff's claim is therefore barred. The Supreme Court in Kosak v. United States, 465 U.S. 848, 852 n. 6, 104 S.Ct. 1519, 79 L.Ed.2d 860 (1984) expressly reserved the question raised by the BOP's contention ("We have no occasion in this case to decide what kinds of `law-enforcement officer[s],' other than customs officials, are covered by the exception" (quoting 28 U.S.C. § 2680(c))). The circuits are split on the issue. See, e.g., Andrews v. United States, 441 F.3d 220, 227-28 (4th Cir.2006) (discussing holdings of the various Circuit Courts of Appeal); Solis-Alarcon v. United States, 432 F.Supp.2d 236, 249 (D.P.R. 2006) (same). The Fourth, Sixth, Seventh, and District of Columbia circuits have held that "any other law enforcement officer" in § 2680(c) refers only to law enforcement officers working in the enforcement of tax or customs laws. See Andrews, 441 F.3d at 227; Ortloff v. United States, 335 F.3d 652, 658 (7th Cir.2003); Bazuaye v. United States, 83 F.3d 482, 486 (D.C.Cir.1996); Kurinsky v. United States, 33 F.3d 594, 598 (6th Cir.1994). The Fifth, Eighth, Ninth, Tenth, and Eleventh Circuits have interpreted the language more expansively. See, e.g., Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804, 807 (9th Cir.2003) (holding that BOP officers are law enforcement officers for the purposes of § 2680(c)); Chapa v. U.S. Dep't of Justice, 339 F.3d 388, 390 (5th Cir.2003) (same); Hatten v. White, 275 F.3d 1208, 1210 (10th Cir.2002) (same); Cheney v. United States, 972 F.2d 247, 248 (8th Cir.1992) (holding claim against federal drug task force officer based on seizure of property in course of search barred by § 2680(c)'s "broad exception to the FTCA's general waiver of sovereign immunity"); Schlaebitz v. United States Dep't of Justice, 924 F.2d 193, 195 (11th Cir.1991) (concluding that claim against marshals acting within their lawful authority is banned by § 2680(c)).³

There are no First Circuit decisions interpreting this language, though as noted by a judge of the United States District Court for the District of Puerto Rico, two district courts within the First Circuit have addressed the meaning of § 2680(c). See Solis-Alarcon, 432 F.Supp.2d at 249 & n. 6. In Hydrogen Technology Corp. v. United States, 656 F.Supp. 1126, 1128 (D.Mass.1987), Judge McNaught of this district determined that where law enforcement officers are acting outside the excise/customs context, recovery under the FTCA is not barred by § 2680(c). In Cardona Del Toro v. United States, Judge Perez-Gimenez of the District of Puerto Rico reached a contrary conclusion, holding — without discussion — that § 2680(c) bars an FTCA claim arising out of a warrantless search and seizure of property by FBI agents. 791 F.Supp. 43, 45, 47 (D.P.R.1992), aff'd without discussion, 983 F.2d 1046, 1993 WL 9733 (1st Cir. Jan. 19, 1993). More recently, Judge Casellas of the District of Puerto Rico, after extended analysis of the question, concluded that "the language `any other law enforcement officer' in § 2680(c) refers to any other law enforcement officer working in an excise or customs capacity." Solis-Alarcon, 432 F.Supp.2d at 251.

As I shall explain, after careful analysis of the statutory language I am persuaded by the reasoning of the Fourth, Sixth, Seventh and District of Columbia Circuits, as well as Solis-Alarcon, the most recent opinion issued within this circuit. As the Seventh Circuit observed in Ortloff, "[w]hile the quantity of circuits favors the government's position, the quality of decisions favors" the contrary conclusion. 335 F.3d at 659. See Kurinsky, 33 F.3d at 598 (noting that cases concluding that other law enforcement officer language "includes _all types of officers, whatever their duties ... have not articulated a clear reason for this holding, and have often stated their conclusions with little or no analysis"). Cf. Hatten, 275 F.3d at 1210 (neglecting to explain reasoning); Cheney, 972 F.2d at 248 (same).

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