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Thomas L. Davis v. Ronald Nuci

August 9, 2011

THOMAS L. DAVIS,
PLAINTIFF,
v.
RONALD NUCI, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DISMISSING PLAINTIFF'S SECOND AMENDED COMPLAINT (ECF No. 21)

I. PROCEDURAL HISTORY

On August 2, 2010, Plaintiff Thomas L. Davis, a federal prisoner proceeding pro se and in forma pauperis, filed a civil rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for the violation of civil rights by federal actors.*fn1 (Compl., ECF No. 1.) The Court subsequently redesignated Plaintiff's action as a civil action rather than a Bivens civil rights action because the Complaint did not involve prison conditions of confinement. (Redesignation Order, ECF No. 11.) On November 17, 2010, the Court screened the Complaint, found that Plaintiff had not stated a cognizable claim, and gave him leave to amend. (Screening Order, ECF No. 17.) Plaintiff filed a First Amended Complaint on November 16, 2010. (First Am. Compl., ECF No. 19.) Shortly thereafter, and before the Court could screen the First Amended Complaint, Plaintiff filed a Motion to Amend the Complaint and a Second Amended Complaint. (Mot. to Amend., ECF Nos. 20-21.) The Court granted the motion, and gave notice it was proceeding with the Second Amended Complaint as the operative pleading in the case. (Order, ECF No. 22.) Plaintiff's Second Amended Complaint is before the Court for screening.

Plaintiff has consented to Magistrate Judge jurisdiction. (ECF No. 10.)

II. SCREENING REQUIREMENT

The Court is required to screen all complaints brought by plaintiffs proceeding in forma pauperis. 28 U.S.C. § 1915(e)(2); Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001). The Court must dismiss a complaint or portion thereof if the action has raised claims that are legally "frivolous or 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." 28 U.S.C. § 1915(e)(2)(B).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.

III. PLAINTIFF'S CLAIMS

The Second Amended Complaint names the following individuals as defendants: Ronald Nuci, Correctional Officer, United States Prison, Florence; Scott Davis, Chairman and Chief Executive Officer, United Parcel Services of America (UPS); and Michael L. Eskew, an employee of Courier Services.

The Second Amended Complaint contains fewer factual allegations than the previous two complaints. The Court instructed Plaintiff in the Screening Order to strike through the title of the form complaint as a "Bivens action," and replace it with the type of action he is pursuing should he pursue a different basis for relief. (Order at 3.) Plaintiff did so, and titled the Second Amended Complaint "Administrative adjustment of Claims 28 U.S.C. § 2672." Section 2672 is one of the sections of the Federal Tort Claims Act.

The federal courts have a duty to construe pro se pleadings liberally. Hamilton v. United States, 67 F.3d 761, 764 (9th Cir.1995) (citing Hughes v. Rowe, 449 U.S. 5, 9 (1980) (quotation omitted)). Consistent with such duty, the Court shall consider Plaintiffs claim based on the Federal Tort Claims Act (FCTA).

Specifically, Plaintiff alleges that on or about September 23, 2009, he was transferred to USP Atwater. (Compl. at 3.) Plaintiff's legal books and manuals, 480 pages of final appeals, and eye glasses were in ten boxes. (Id. at 2-3.) The legal books included a copy of the 2010 Federal Rules of Civil Procedure, a soft cover version of Black's Law Dictionary, and a Self-Help Litigation Manual. (Id.) Implicit in the Second Amended Complaint is the allegation that Defendants lost the property in the boxes. UPS issued a check to Plaintiff for $110.54. (Id. at 2.) Plaintiff alleges that the amount paid by UPS does not cover the actual loss. (Id.) Plaintiff further contends that the compensation provided by UPS was less than the value of the property because Defendant Nuci incorrectly represented to UPS that the boxes contained religious books. (Id.) Plaintiff is seeking damages in the amount of $91,483.15 from UPS and $25,000 from Defendant Nuci. (Compl. at 3.)

A. General Deficiencies

There are several deficiencies in Plaintiff's complaint. First, Plaintiff has not named a proper defendant. In a FTCA action, the United States is the only proper defendant. Hawkins v. USA, No. 1:04-cv-05771-LJO-SMS (PC), 2008 U.S. Dist. LEXIS 86231, 2008 WL 4492183, at *2 (E.D. Cal. Oct. 2, 2008) (citing Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995)). Second, although Plaintiff asserts that he was offered some compensation for his loss, he does not allege that he presented a claim to an appropriate federal agency. This Court lacks jurisdiction over an action brought under the FTCA unless the claim presentation requirement is satisfied. 28 U.S.C. § 2675(a). Third, it appears that Plaintiff's claim is barred by the FTCA's exception for detention of goods by a law enforcement officer. See 28 U.S.C. § 2680(c).*fn2 Instructive in this regard is the recent decision in Daley v. United States, No. CV 08-0261-TUC-CKJ, 2009 U.S. Dist. LEXIS 33798, 2009 WL 1047930, at *4 (D. Ariz. April 20, 2009), in which the court determined that the plaintiff's FTCA claim arising from the loss of his personal property when he was transferred to a federal correctional facility was barred by the exception for detention of goods by a law enforcement officer. Relying on the decision in Ali v. Federal Bureau of Prisons, 552 U.S. 214, 128 S. Ct. 831, 169 L. Ed. 2d 680 (2008), the court was not persuaded by the plaintiff's arguments that his loss was due to ...


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