United States District Court, E.D. North Carolina, Western Division
ORDER AND MEMORANDUM & RECOMMENDATION
T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE
Alan Wade Johnson (“Johnson”), a federal inmate
proceeding pro se, commenced this civil action under the
Federal Torts Claim Act (“FTCA”), 28 U.S.C.
§ 2672, et seq. This matter is currently before
the court for the screening required by the Prison Litigation
Reform Act (“PLRA”). Also before the court are
Johnson's motions to expedite (D.E. 11) and to ascertain
status (D.E. 13). For the following reasons, Johnson's
motions are denied, and the undersigned magistrate judge
recommends that the district court dismiss Johnson's
PLRA requires courts to review, prior to docketing, actions
filed by prisoners against governmental entities or
officials. 28 U.S.C. § 1915A(a). The purpose of this
review is to eliminate those claims that unnecessarily impede
judicial efficiency and the administration of justice. The
court must examine the pleadings, identify cognizable claims,
and dismiss any portion of the complaint that is frivolous,
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief. Id. § 1915A(b).
court may dismiss a complaint as frivolous because of either
legal or factual shortcomings. Neitzke v. Williams,
490 U.S. 319, 325 (1989). A cause of action is legally
baseless if it is “based upon an indisputably meritless
legal theory and include[s] claims of infringement of a legal
interest which clearly does not exist.” Adams v.
Rice, 40 F.3d 72, 75 (4th Cir. 1994) (quotations
omitted). A complaint is factually baseless when its factual
allegations are “fanciful, fantastic, and
delusional.” Denton v. Hernandez, 504 U.S. 25,
the FTCA, the United States waives sovereign immunity for
“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)(1);
see Millbrook v. United States, 569 U.S. 50, 52
(2013). The FTCA provides the exclusive remedy for common law
negligence claims against federal employees acting within the
scope of their employment. See 28 U.S.C.
§§ 1346, 2671- 2680; see also Alfa v. the
United States, No. PJM 14-1773, 2015 WL 501969, at *1
(D. Md. Feb. 3, 2015) (“[N]o state common law
action-such as a tort styled premise liability- can be
asserted against the United States, since the FTCA subsumes
all such claims ‘for injury or 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.'”) (citing 28 U.S.C.
is incarcerated at the Federal Correctional Institution in
Butner, North Carolina (“Butner”). Compl. at 5,
D.E. 1. The Butner commissary does not sell 22 cent postage
stamps. Id. Because he often sends out mail weighing
more than one ounce, Johnson contends that this policy forces
him to “pay more for postage than is actually
needed.” Id. at 5-6. Johnson argues that this
failure to provide a better selection of stamps violates the
Federal Bureau of Prisons' duty of care under 18 U.S.C.
§ 4042. Id. at 7. As relief, Johnson
seeks monetary damages and injunctive relief. Id. at
claim is not cognizable under the FTCA. Under the
discretionary function exception, the United States is not
liable under the FTCA for “[a]ny claim based upon . . .
the exercise or performance or the failure to exercise or
perform a discretionary function or duty on the part of a
federal agency or an employee of the Government, whether or
not the discretion involved be abused.” 28 U.S.C.
§ 2680(a). “The discretionary function exception
‘marks the boundary between Congress' willingness
to impose tort liability upon the United States and its
desire to protect certain governmental activities from
exposure to suit by private individuals.'”
Holbrook v. United States, 673 F.3d 341, 345 (4th
Cir. 2012) (quoting United States v. S.A. Empresa de
Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S.
797, 808 (1984)).
have uniformly held that while 18 U.S.C. § 4042 imposes
upon the BOP a general duty to provide for the safety and
care of federal prisoners, the statute does not require it to
do so in any specific manner. See Calderon v. United
States, 123 F.3d 947, 950 (7th Cir. 1997)
(“[w]hile it is true that [§ 4042] sets forth a
mandatory duty of care, it does not, however, direct the
manner by which the BOP must fulfill this duty.”).
Because the BOP has discretion over the best means to carry
out § 4042's mandate, the “discretionary
function” exception of the FTCA insulates its actions
from judicial “second guessing” through
prisoner-initiated litigation. Cohen v. United
States, 151 F.3d 1338, 1342 (11th Cir. 1998)
(“even if § 4042 imposes on the BOP a general duty
of care . . . the BOP retains sufficient discretion in the
means it may use to fulfill that duty to trigger the
discretionary function exception.”). Johnson's
claim that BOP inadequately stocks the commissary with stamps
is subject to the discretionary function exception. See
Janis v. United States, No. 1:06-CV-1613-SEB-JMS, 2009
WL 564207, at *12 (S.D. Ind. Mar. 4, 2009) (applying
discretionary function exception to claim relating to the
administration of an inmate commissary program). The
undersigned thus recommends that Johnson's complaint be
dismissed as frivolous.
plaintiff's motions (D.E. 11, 13) seek expedited
consideration of his claims as well as an update on the
status of his claims. These motions are DENIED as moot.
discussed above, Johnson's motions (D.E. 11, 13) are
DENIED. And the undersigned magistrate judge recommends that
the district court dismiss Johnson's claims as frivolous.
Clerk of Court must serve a copy of this Memorandum and
Recommendation (“M&R”) on each party who has
appeared here. Any party may file a written objection to the
M&R within 14 days from the date the Clerk serves it on
them. The objection must specifically note the portion of the
M&R that the party objects to and the reasons for their
objection. Any other party may respond to the objection
within 14 days from the date the objecting party serves it on
them. The district judge will review the objection and make
their own determination about the matter that is the subject
of the objection. If a party does not file a timely written
objection, the party will have forfeited their ability to
have the M&R (or a later decision based on the M&R)
reviewed by the Court of Appeals.