Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Johnson v. United States

United States District Court, E.D. North Carolina, Western Division

January 28, 2019

Alan Wade Johnson, Plaintiff,
v.
United States of America, Defendant.

          ORDER AND MEMORANDUM & RECOMMENDATION

          ROBERT T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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 claims.

         The 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).

         The 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, 32-33 (1992).

         Under 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. § 1346(b)(1))).

         Johnson 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.[1] Id. at 7. As relief, Johnson seeks monetary damages and injunctive relief.[2] Id. at 10.

         Johnson's 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)).

         Courts 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.

         Finally, 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.

         Conclusion

         As 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.

         The 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.

---------


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.