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Maxten v. United States

United States District Court, N.D. West Virginia

February 26, 2018

THERON JOHNNY MAXTEN, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          STAMP JUDGE

          REPORT AND RECOMMENDATION

          JAMES E. SEIBERT UNITED STATES MAGISTRATE JUDGE

         On April 24, 2017, the Plaintiff filed this complaint pursuant to the Federal Tort Claim Act (“FTCA”) against the United States of America, containing allegations regarding his incarceration at USP Hazelton, which is located in Bruceton Mills, West Virginia. On that same date, the Plaintiff filed a Motion for Leave to proceed in forma pauperis, together with a Prisoner Trust Account Report and a Consent to Collection. This matter is before the undersigned for an initial review and report and recommendation pursuant to LR PL P 2, et seq., and 28 U.S.C. § 1915(A).

         I. THE COMPLAINT

         In his complaint, the Plaintiff alleges that the Attorney General continues to allow the Warden at USP Hazelton to keep putting inmates “back on the yard, ” who keep getting caught with knives and drugs. The Plaintiff further alleges that since January of 2017, at least six inmates have been stabbed or hit with locks. The Plaintiff alleges that the Attorney General is aware of the problem and appears to allege that the staff at USP Hazelton is racist and allows problem inmates out of the special housing unit within seven days. He further alleges that they then get knives and drugs again, hurt somebody, and consequently, the prison is put on lock-down. The Plaintiff maintains that he personally talked to the Regional Director of the BOP and wrote Internal Affairs, the Attorney General and the President, who were all put on notice regarding the situation at USP Hazelton. In addition, the Plaintiff alleges that Internal Affairs conspired with the Regional Director to cover up crimes committed by SIS officials, the captain and the warden. The Plaintiff alleges that he has had outside medical appointments cancelled because of these issues. For relief, he seeks an order sending him to a medical institution in North Carolina, Springfield, or Atlanta until he is “healed” and $300, 00 for the pain and suffering he has endured.

         II. Standard of Review

         Because the Plaintiff is a prisoner seeking redress from a governmental entity or employee, the Court must review the complaint to determine whether it is frivolous or malicious. Pursuant to 28 U.S.C. § 1915A(b), the Court is required to perform a judicial review of certain suits brought by prisoners and must dismiss a case at any time if the Court determines that the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief.

         A complaint is frivolous if it is without arguable merit either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). However, the Court must read pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 520 (1972). A complaint which fails to state a claim under Fed.R.Civ.P. 12(b)(6) is not automatically frivolous. See Neitzke at 328. Frivolity dismissals should only be ordered when the legal theories are “indisputably meritless, ”[1] or when the claims rely on factual allegations which are “clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). This includes claims in which the plaintiff has little or no chance of success. See Estelle v. Gamble, 429 U.S. 97, 106 (1976).

         III. ANALYSIS

         The Federal Tort Claims Act (FTCA) is a comprehensive legislative scheme through which the United States has waived its sovereign immunity to allow civil suits for actions arising out of negligent acts of agents of the United States. The United States cannot be sued in a tort action unless it is clear that Congress has waived the government's sovereign immunity and authorized suit under the FTCA. Dalehite v. United States, 346 U.S. 15, 30-31 (1953). The provisions of the FTCA are found in Title 28 of the United States Code. 28 U.S.C. § 1346(b), § 1402(b), § 2401(b), and §§ 2671-2680.

         Pursuant to the provisions of the FTCA, the administrative process must be fully exhausted before claims may be brought in federal court. 28 U.S.C. § 2675(a). Administrative exhaustion under the FTCA requires an inmate to submit written notification of the incident, accompanied by a sum certain claim for monetary damages, to the federal agency responsible for the activities giving rise to the claim. See 28 C.F.R. §§ 14.2(a) and (b). The inmate may file an FTCA suit in federal court only after the agency denies the inmate's claim, and must do so within six months of the mailing of the denial. 28 C.F.R. § 14.9. An administrative tort claim is statutorily presumed denied if six months pass without action on a properly filed administrative claim. 28 C.F.R. § 2675(a).

         In the instant case, the Plaintiff acknowledges on the face of the complaint that he did not pursue his FTCA administrative remedies by filing an FTCA Claim Form (SF- 95). ECF No. 1 at 4. Therefore, because he has not exhausted his administrative remedies, this case is due to be dismissed for lack of jurisdiction. Moreover, as discussed below, even if the Plaintiff had exhausted his administrative tort remedies, this case is still subject to dismissal.

         The FTCA waiver of sovereign immunity is subject to several requirements and limitations. One of those is found in § 1346(b)(2), which provides as follows:

No person convicted of a felony who is incarcerated while awaiting sentencing or while serving a sentence may bring a civil action against the United States or an agency, officer, or employee of the Government, for mental or emotional injuries suffered ...

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