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Manivannan v. Bochenek

United States District Court, N.D. West Virginia

February 21, 2018

AYYAKKANNU MANIVANNAN, Plaintiff,
v.
DR. GRACE BOCHENEK Director, National Energy Technology Laboratory

          Keeley, Judge

          ORDER GRANTING MOTION TO SUBSTITUTE THE UNITED STATES (ECF NO. 2) AND REPORT AND RECOMMENDATION RECOMMENDING DISMISSAL OF PLAINTIFF'S COMPLAINT

          MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE JUDGE

         This matter before the Court is pursuant to the United States of America's “Motion to Dismiss” (ECF No. 6) filed on December 27, 2017. District Court Judge Irene M. Keeley entered an order on December 14, 2017, referring to the undersigned, any motions filed in this case for written orders or report and recommendations. (ECF No. 4).

         I. Procedural/Relevant History

         On April 5, 2017, Plaintiff Ayyakkannu Manivannan, filed a pro se Complaint in the Magistrate Court of Mongolian County, West Virginia, against Defendant, Dr. Grace Bochenek, Director of National Energy Technology Laboratory. In the Complaint, Plaintiff solely requests the Court to “[h]elp [him] retrieve [his] personal belongings in [his] former office. (ECF No. 1-1). Believing Plaintiff was alleging tortious conduct on behalf of an employee of the United States, the Attorney General for the Northern District of West Virginia, provided the Court with a copy of the Certification of Scope of Employment, certifying that Dr. Bochenek was acting within the scope of her employment at the time of the incident alleged in the Complaint, and filed a Notice of Removal to the Northern District of West Virginia. (ECF No. 1). On the same date the United States filed a motion to substitute the United States as Defendant.

         Approximately two weeks after filing the Notice of Removal, the United States filed the pending motion to dismiss (ECF No. 6). The undersigned held a hearing on the pending motion to dismiss on February 8, 2018.

         II. Defendant's Motion to Dismiss

         Defendant moved that Plaintiffs Complaint be dismissed asserting that claims against the United States for money damages or for loss of property caused by the negligent or wrongful act or omission of any federal employee comes within the provisions of the Federal Torts Claim Act (hereinafter “FTCA”), which requires a plaintiff to exhaust his administrative remedies prior to filing suit. Defendant argues that because Plaintiff failed to exhaust his administrative remedies, this Court lacks subject matter jurisdiction and Plaintiffs case should be dismissed.

         III. Plaintiffs Response

         In response, Plaintiff asserts that from the middle of June 2016, the time when he initially requested the return of his personal belongings, to date, the Department of Energy (DOE), National Energy Technology Laboratory (NETL) has failed to return his property, and at no point in time did the DOE/NETL inform him that his request required him to complete a SF-95 form (the government's standard form for a claim for damage, injury, or death). Plaintiff further asserts that although the DOE/NETL has claimed to have returned his property, DOE/NETL has failed to provide any evidence that the requested property was in fact returned, explaining NETL failed to respond to Plaintiffs former attorney's requests for return of Plaintiff s property, NETL failed to inform Plaintiffs attorney that it inventoried Plaintiffs office on August 31, 2016, and NETL failed to answer Plaintiff's FOIA request regarding his belongings. Based on these facts, Plaintiff requests the Court not to dismiss his case.

         IV. Discussion

         A. Substitution of the United States

         As an initial matter, On December 14, 2017, the United States Attorney for the Northern District of West Virginia removed this action from the Magistrate Court of Monongalia County, West Virginia, under the provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 1346; 2672-80. Pursuant to the FTCA, the United States is the only proper Defendant in an FTCA action, not a government agency or government employee. “[O]nce the United States Attorney certifies that the federal employee acted within the scope of his employment, the plaintiff properly can proceed only against the United States as a defendant.” Osborne v. Haley, 549 U.S. 225, 238 (2007) (quoting 28 U.S.C. § 2679(d)(2)). On December 14, 2017, the United States provided to the court certification that Defendant Bochenek was acting within the scope of her employment at the time of the incident alleged in the Complaint. Accordingly, pursuant to the provisions of the FTCA, it is

         ORDERED that the United States is substituted as the Defendant in place of ...


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