Smith v. U.S. Dep't of Veteran Affairs

KEVIN MICHAEL SMITH, Plaintiff,

v. U.S. DEPARTMENT OF VETERAN AFFAIRS; CITY OF CONCORD, NC;CABARRUS COUNTY, NC; STATE OF NORTH CAROLINA; U.S GOVERNMENT;U.S. MARSHAL SERVICE; U.S ADMINISTRATIVE OFFICES;OFFICES OF THE COURTS OF THE U.S.; ATTORNEY GENERAL;CLERK OF DISTRICT COURT; CABARRUS COUNTY REGISTER OF DEEDS;CABARRUS COUNTY SHERIFF; CABARRUS COUNTY TAX COLLECTOR;CITY MUNICIPALITY OF CONCORD POLICE CHIEF; CITY MUNICIPALITY OF CONCORDTAX COLLECTOR; THE STATE OF NORTH CAROLINA; N.C. DEPARTMENT OF SECRETARY OF STATE, Defendants.

1:12CV38

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

Dated: June 14, 2013

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This is a pro se action by Plaintiff Kevin Michael Smith,¹ who, in a handwritten complaint, alleges broadly that the numerous Defendants in this case committed torts against him and violated his constitutional rights. Before the court now are Defendants'motions to dismiss. (Docket Entries 8, 12, 19, 23, and 28.) Plaintiff filed a "Response to Motion to Dismissal of Action by Defendants (Wrongful Death and Emotional Distress) (Docket Entry 31) on April 9, 2012. The matter is thus ripe for disposition. For the reasons that follow, this court will recommend that all five motions to dismiss be granted.

I. BACKGROUND

On December 2, 2011, Plaintiff filed the present complaint in the United States District Court for the Western District of North Carolina. (Docket Entry 1.) The action was transferred to the Middle District of North Carolina by order of United States District Judge Robert J. Conrad, Jr. on January 11, 2012. (Docket Entry 6.) Plaintiff names multiple Defendants that can be grouped into four separate categories: (1) "Federal Defendants": U.S. Department of Veterans Affairs, U.S. Government, U.S. Marshal Service, U.S. Administrative Offices, Offices of the Courts of the U.S., Attorney General, and Clerk of District Court; (2) "State Defendants": State of North Carolina, NC Secretary of State and NC Attorney General² ; (3) "Concord Defendants": City Municipality of Concord Police Chief, City Municipality of Concord Tax Collector, and City of Concord, NC; and (4) "County Defendants": Cabarrus County, NC, Cabarrus County Register of Deeds, Cabarrus County Sheriff, and Cabarrus County Tax Collector.

The basis of Plaintiff's claims against all Defendants is completely indecipherable. The complaint itself lists the jurisdictional bases as 42 U.S.C. § 1983, 42 U.S.C. § 1985, theFederal Tort Claims Act ("FTCA"), the Veterans Benefit Act, and N.C. Gen. Stat. § 4-1. Plaintiff's complaint vaguely alleges violations of his constitutional rights in the following way:

The Defendants have on regular patterns, and continual contemplated thoughts and acts, stalked, assaulted physically, stolen Property of Money, Papers, Personal effects, the Defendants have done this for a period of Five Annual Periods to the Plaintiffs.

(Compl. at 3, Docket Entry 1.) With regard to the alleged section 1985 claim, the complaint states:

Defendants Unlawfully and Feloniously in Violation of the Common Law of the State of North Carolina Chapter 4 Section 1 enter, assault, Harass, and Pilfer Plaintiffs and Property during Daytime and Nighttime hours, claiming to be Police of City, County, State or Federal.

(Id.) Plaintiff states his injury as:

Plaintiffs are injured in both Person and Property of Well-Being; Safety and Security; Privacy; Character Defamated [sic]; Financial Frauded [sic]; Obstructed in Obtaining Justice to Present, Correct the Injury or Wrong; Economic Expenses Actual, Constructive, or Exemplary, including Physical Body Traumas; Quiet Use and Enjoyment; DeFraudia [sic] - Fraud and Deception by Obtaining Money or Property by False Pretense and Confidence; False Impersonation of Police or Government Agent or Employee . . . .

(Id.) Finally, in his demand for relief, Plaintiff states:

To have Judgement entered on Plaintiffs Smith behalf based upon Obstruction of Justice; Intimidating a Witness or Party to Court Action; Failure to Respond to Complaint Action filed; Delay, denial of Healthcare in Emergency or Prolonged Illnesses; Failure to Trust Account for Property Received in a Fraudulent Receivership of Trusteeship; Supervisors-Coworkers Denial to Assist Plaintiffs and Governments Denial for Transfer proximately resulting in and Compounding Plaintiffs Safety or Security by Egregious Flagrant Conduct and Conspiracy; Recompense for Conversion, Conspiracy, Bodily Injury; Emotional Distress and Mental Anguish.

(Id. at 5.)

On January 31, 2012, Plaintiff filed what arguably could be considered an amended complaint.³ (Am. Compl., Docket Entry 16.) This handwritten pleading, entitled "Refiling of Complaint and Supplemental Informations of Civil Conspiracy after Dereliction of Law Impedement [sic] against Plaintiffs," contains language similar to that of the original complaint which is difficult to follow or understand. It also contains an addendum, listing 19 "Legal Maxims," all in Latin. (Id. at 9.)

All Defendants now move to dismiss the action.

II. ANALYSIS

A. The Federal Defendants

The Federal Defendants have moved to dismiss this action for lack of subject matter jurisdiction, for failure to state a claim upon which relief may be granted, and for insufficiency of service of process. The court finds that each of these bases provides sufficient grounds to dismiss the complaint against the Federal Defendants.

Because Plaintiff's action is against the federal government and its agencies, sovereign immunity is presumed and cannot be overcome without an express statutory waiver. Research Triangle v. Bd. Of Gov. of Fed. Reserve Sys., 132 F. 3d 985, 987 (4th Cir. 1997). "Under settled principles of sovereign immunity, the United States as sovereign, is immune from suit save as it consents to be sued . . ." United States v. Dalm, 494 U.S. 596, 608 (1990). Through the FTCA, Congress has waived sovereign immunity for certain tort claims against the United States. See 28 U.S.C. § 1346(b)(1). In order for a district court to have jurisdiction overFTCA claims, however, the claimant must first present the claim to the appropriate federal agency, and the agency must have denied the claim. 28 U.S.C. § 2675(a); 28 C.F.R. § 14.2(b)(1). "[T]he requirement of filing an administrative claim is jurisdictional and may not be waived." Ahmed v. United States, 30 F.3d 514, 516 (4th Cir. 1994).

A plaintiff bears the burden of proving compliance with the administrative requirements. Kielwien v. United States, 540 F.2d 676, 679 n. 6 (4th Cir. 1976). In this case, Plaintiff makes no allegation in his complaint (or amended complaint) that the purported tort claims he is asserting were ever presented to the federal agencies he is suing. Because the record contains no indication that Plaintiff filed an administrative claim, Plaintiffs' claim against the Federal Defendants must be dismissed for lack of subject matter jurisdiction. See Whedbee v. United States, 352 F. Supp. 2d 618, 628 (M.D.N.C. 2005)

Similarly, under the FTCA, any constitutional claims asserted by Plaintiff arising out of the same facts are also barred:

The judgment in an action under section 1346(b) of this title shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omissions gave rise to the claim.

28 U.S.C. § 2676. This "judgment bar" accords a judgment on an FTCA claim preclusive effect as to any action on the same underlying facts. See Freeze v. United States, 343 F. Supp.2d 477, 481 (M.D.N.C. 2004), aff'd, 131 Fed. App'x 950 (4th Cir. 2005). Accordingly, because Plaintiff's tort claims are subject to dismissal under the FTCA, he is precluded from asserting any constitutional claims against the Federal Defendants.

Dismissal is also appropriate pursuant to Federal Rule of Civil Procedure 12(b)(6). A complaint that does not "contain sufficient factual matter, accepted as true, to 'state a claimto relief that is plausible on its face'" must be dismissed. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). Pro se complaints are to be liberally construed in assessing sufficiency under the Federal Rules of Civil Procedure. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even under this liberal construction, "generosity is not a fantasy," and the court is not expected to plead a plaintiff's claim for him. Bender v. Suburban Hosp., Inc., 159 F.3d 186, 192 (4th Cir 1998).

Plaintiff checked the box on his complaint indicating that he was bringing this action pursuant to 42 U.S.C. §§ 1983 and 1985. In order to successfully state a cause of action under § 1983, a plaintiff must allege sufficient facts to establish: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the conduct complained of was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). The most liberal reading of the complaint here quite simply reveals no allegations of official acts committed by the Federal Defendants, nor that any alleged acts were committed under color of state law as required for a section 1983 claim. Section 1985 provides for three causes of actions for conspiracies that interfere with a plaintiffs civil rights. 42 U.S.C. § 1985(1)-(3). Plaintiff does not specify which cause of action he is bringing, but he has clearly failed to plead elements of any claim under section 1985.

The complaint and the amended complaint here contain no factual allegations to support an action against the Federal Defendants under 42 U.S.C. §§ 1983 and 1985 (or anyother statute). Therefore, the Federal Defendants' motion to dismiss for failure to state a claim should be granted.⁴

B. The State Defendants

The State Defendants move to dismiss Plaintiff's claims on the grounds of insufficiency of service of process, the...