D'Amario v. United States of America

MOTION to Dismiss Case , or in the alternative, MOTION for More Definite Statement

D. Ariz.March 16, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELIZABETH A. STRANGE Acting United States Attorney District of Arizona KATHERINE V. FOSS Assistant U.S. Attorney Arizona State Bar No. 029124 405 W. Congress Street, Suite 4800 Tucson, Arizona 85701-5040 Telephone: (520) 620-7300 Civil fax: (520) 620-7138 e-mail: Katherine.foss@usdoj.gov Attorneys for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Arthur D’Amario III, Plaintiff, vs. United States of America, Defendant. 4:16-CV-00639-JR MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT Defendant United States of America, by and through undersigned counsel, moves to dismiss Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6), as Plaintiff’s Complaint is time-barred and fails to state an actionable claim. To the extent this Court permits Plaintiff’s Complaint to survive, Defendant moves this Court for a more definite statement of any claims that are not dismissed pursuant to Fed. R. Civ. P. 12(e). These Motions are supported by the attached Memorandum of Points and Authorities and all documents of record. MEMORANDUM OF POINTS AND AUTHORITIES I. PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED BASED ON STATUTE OF LIMITATIONS GROUNDS AND FAILURE TO EXHAUST TIMELY. A. SUBJECT MATTER JURISDICTION Federal courts are courts of limited jurisdiction and are presumed to lack jurisdiction Case 4:16-cv-00639-JR Document 8 Filed 03/16/17 Page 1 of 8 - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 until proven otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994); Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). The party invoking jurisdiction bears the burden of establishing the existence of subject matter jurisdiction. Kokkonen, 511 U.S. at 377. Furthermore, the United States’ sovereign immunity “is a question of the Court’s subject matter jurisdiction.” McMillan v. Dep’t of Interior, 907 F. Supp. 322, 325 (D. Nev. 1995) (citation omitted); see also Duval Ranching Co. v. Glickman, 965 F. Supp. 1427, 1444 (D. Nev. 1997) (“The absence of the United States’ consent to be sued is a ‘fundamental, jurisdictional defect’ which negates our subject matter jurisdiction.”). “Under the principle of sovereign immunity, the United States may only be sued where it has expressly consented to such suit by statute.” McMillan, 907 F. Supp. at 325 (citation omitted). The United States “may define the conditions under which it is willing to be sued.” Id. at 325 (citation omitted). “‘[L]imitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.’” Id. (citation omitted) (alteration in original). “The party suing the United States must point to an unequivocal waiver of sovereign immunity.” Id. (citation omitted). B. FAILURE TO STATE A CLAIM A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact are taken as true and construed in a light most favorable to the non-moving party. See Hicks v. Small, 69 F.3d 967, 969 (9th Cir. 1995). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Iqbal decision approved and reaffirmed the two working principles set forth in Twombly. First, the tenet that a court must accept as true all of the allegations in a complaint is inapplicable to legal conclusions. Second, only a complaint that states Case 4:16-cv-00639-JR Document 8 Filed 03/16/17 Page 2 of 8 - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a plausible claim for relief survives a motion to dismiss. Id. at 678. Per these principles, [a] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. at 679. Whether a complaint states a plausible claim for relief will be “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. Dismissal is appropriate where there is no cognizable legal theory, or insufficient facts alleged to support a cognizable legal theory. Navarro, 250 F.3d at 732. C. ARGUMENT Plaintiff’s claims are all barred based on the FTCA’s statute of limitations, as all the actions he complains of occurred long before January 12, 2014. 28 U.S.C. § 2401(b) has two requirements, both of which must be met: a claim must be presented to the agency within two years of the claim’s accrual, and the claimant must file suit within six months of the agency’s administrative denial. Dyniewicz v. United States, 742 F.2d 484, 485 (9th Cir. 1984). Presentment requires that the federal agency “receive[] from the claimant . . .an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident.” Bailey v. United States, 642 F.2d 344, 346 (9th Cir. 1981) (citing 28 C.F.R. § 14.2). Plaintiff claims he presented his administrative notice with U.S. Probation on January 12, 2016, but the lawsuit which he claims gives rise to this Complaint was dismissed on January 3, 2012. (Complaint ¶ 9). While Plaintiff claims that he was not aware of his injury until 2015, Plaintiff in fact filed a SF-95 against the Bureau of Prisons on October 11, 2013, claiming that the denial of his placement in Boston, Massachusetts caused his legal case against his sister-in-law for embezzlement to be dismissed-the very claim he is alleging here. (Exhibit A, Administrative Tort Claim TRT-NER-2014-0502). Case 4:16-cv-00639-JR Document 8 Filed 03/16/17 Page 3 of 8 - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Further, Plaintiff knew of his “injury” in not being able to transfer to Rhode Island long before 2015, as he has challenged this in courts across the United States. See, e.g., United States v. D'Amario, 593 F. App'x 97, 99 (3d Cir. 2014) (“Upon his release from custody, D'Amario sought to transfer his supervised release from New Jersey to Rhode Island. Rhode Island refused to accept his supervision. He appealed the denial of his transfer, and we affirmed.”); United States v. D'Amario, 513 F. App'x 128 (3d Cir. 2013) (finding District Court did not err in denying D’Amario’s motion seeking to have supervision transferred to District of Rhode Island where District of Rhode Island did not concur in the transfer); In re D'Amario, 509 F. App'x 132, 132-33 (3d Cir. 2013) (noting D’Amario’s civil rights complaint against a probation officer asking that he be restrained from “banishing” D’Amario from Rhode Island); D'Amario v. Weiner, No. CIV.A. 12- 6098, 2013 WL 5565773, at *3-4 (D.N.J. Oct. 8, 2013) (“the record does not establish that Defendants denied D'Amario permission to return to Rhode Island in a manner inconsistent with the Constitution.”); United States v. D'Amario, 412 F.3d 253, 257 (1st Cir. 2005) (“The record amply supports the district court's conclusion that D'Amario intended to violate the conditions of his release by returning to Rhode Island without permission and that such an action constituted a legitimate security concern.”)1 Accordingly, his Complaint should be dismissed based on statute of limitations grounds. Plaintiff’s Complaint also fails for failure to state a claim. First, Plaintiff’s Complaint contains several recitals alleging that it was his civil attorney’s negligence, if anything, that led to the dismissal of his lawsuit, and does not identify the negligent conduct of the United States that would lead to the same. Second, Plaintiff does not identify why his location out of Rhode Island would impede his ability to pursue his lawsuit whatsoever, as he continued to pursue lawsuits in many Courts throughout this period, including during his incarceration. D'Amario v. Weiner, No. CIV.A. 12-6098, 2013 WL 622110, at *5 n. 7 1 As many Courts have noted, D’Amario is a “prodigious litigant” (D’Amario v. Holder, 4:14-cv-2322-CKJ (D. Ariz.)) who has filed roughly 300 civil suits, habeas petitions, and appeals in various district courts, as available on PACER. Case 4:16-cv-00639-JR Document 8 Filed 03/16/17 Page 4 of 8 - 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (D.N.J. Feb. 19, 2013) (“Despite D’Amario’s assertion that equitable tolling saves his claims because he was ‘effectively banish[ed] ... from all courts until [the day he filed his Amended Complaint],’ it is apparent that he was capable of filing numerous petitions, motions, and lawsuits over the past three decades and that he was aware of, and raised, many of the same allegations asserted in his Amended Complaint.”)(internal citations omitted). Third, Plaintiff may not recover under the FTCA for false imprisonment given the intentional tort bar of Section 2680(h): whether his claim is couched in negligence is irrelevant. Snow-Erlin v. United States, 470 F.3d 804, 808-09 (9th Cir. 2006) (“Plaintiff cannot sidestep the FTCA's exclusion of false imprisonment claims by suing for the damage of false imprisonment under the label of negligence.”) Fourth, Plaintiff does not explain how this lawsuit is connected to Arizona, given that his convictions and the management of his supervised release were all on the East Coast. See United States v. D’Amario, Crim. A. No. 99-24 (D.R.I.); United States v. D’Amario, Crim. A. No. 99-30 (D.N.H.); United States v. D’Amario, Crim. A. No. 01-346 (D.N.J.); United States v. D’Amario, Crim. A. No. 06-112 (D.N.J.); United States v. D’Amario, Crim. A. No. 99-24 (D.R.I.) (ECF No. 494); United States v. D’Amario, Crim. A. No. 01-346 (D.N.J.) (ECF No. 181); United States v. D’Amario, Crim. A. No. 06-112 (D.N.J.) (ECF No. 214); United States v. D’Amario, Crim. A. No. 06-112 (D.N.J.) (ECF No. 483). Finally, the District of New Jersey decided this very issue in Plaintiff’s lawsuit against Barry Weiner (also referenced in the present Complaint), finding “[c]ourts have generally been hostile to claims of probationers, parolees, or persons on supervised release challenging the constitutionality of restrictions on where they can live or travel.” D'Amario v. Weiner, No. CIV.A. 12-6098, 2013 WL 5565773, at *3 (D.N.J. Oct. 8, 2013) (collecting cases). The court continued, It is inconsequential whether D'Amario was, during his most recent term of supervised release, subject to the special condition imposed by Judge Young in the District of Rhode Island, that he was “prohibited from returning [to] Rhode Island during the period of supervised release without the permission of the United States District Court and the Probation Office.” Weiner Decl. ¶ 10. That condition only requires D'Amario to obtain permission from the Court and Probation Office prior to returning to Rhode Island. As discussed Case 4:16-cv-00639-JR Document 8 Filed 03/16/17 Page 5 of 8 - 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 above, the record does not establish that Defendants denied D'Amario permission to return to Rhode Island in a manner inconsistent with the Constitution. Furthermore, D'Amario did not have a “right” to be released in Rhode Island pursuant to 18 U.S.C. § 3624(d)(3). Pl.'s Mem. at 1. Section 3624(d)(3) provides that, “[u]pon the release of a prisoner on the expiration of the prisoner's term of imprisonment, the Bureau of Prisons shall furnish the prisoner with ... transportation to the place of the prisoner's conviction, to the prisoner's bona fide residence within the United States, or to such other place within the United States as may be authorized by the Director.” 18 U.S.C. § 3624(d)(3). “[T]he BOP is bound by [that] statute to select the place where the prisoner is to be released” and “has full discretion to determine the location of [the] prisoner's release.” United States v. Hartshorn, 163 F. App'x 325, 329-30 (5th Cir.2006). It was, therefore, within the discretion of the BOP to release D'Amario in the District of New Jersey, the “place of [his] conviction.” 18 U.S.C. § 3624(d)(3). Id. at *4.2 Accordingly, this Complaint should be dismissed without leave to amend. II. SHOULD THIS COMPLAINT SURVIVE, THIS COURT SHOULD REQUIRE A MORE DEFINITE STATEMENT. A. LEGAL STANDARD Under Fed. R. Civ. P. 8(a)(2), a complaint must contain a “a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). Fed. R. Civ. P. 10(b) requires a party to state its claims in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A party may move for a more definite statement of any pleading that is “so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading.” Fed. R.Civ.P. 12(e). B. ARGUMENT To the extent this Court retains certain of Plaintiff’s claims, Plaintiff should be required to make a more definite statement to allow Defendant to respond properly. Plaintiff lists lettered (a) through (j) claims of negligence, without identifying the party 2 As this Order suggests, Plaintiff’s Complaint may also be moot because Plaintiff’s sentence “prohibited [him] from returning [to] Rhode Island during the period of supervised release without the permission of the United States District Court and the Probation Office.” United States v. D’Amario, Crim. A. No. 99-24 (D.R.I.). Case 4:16-cv-00639-JR Document 8 Filed 03/16/17 Page 6 of 8 - 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 who acted, what “policies” and “statutes” he claims to be misinterpreted, when the operative events took place, or what duties were breached to bring rise to a claim of negligence. This sort of pleading amounts to little more than “labels and conclusions” and “naked assertions devoid of further factual enhancement” condemned by Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding that Rule 8 “demands more than an unadorned, the- defendant-unlawfully-harmed-me accusation”). In sum, Plaintiff’s pleading-by-incorporation framework fails to satisfy Rule 8, by failing to provide Defendant with sufficient notice of the wrongs allegedly committed. See, e.g., Kostka v. U.S. Bank Nat. Ass'n, No. CV 11-00137, 2011 WL 5325708, *3 (D. Haw. Nov. 2, 2011). None of the claims are delineated according to the elements that comprise them or specify (see 28 U.S.C. § 1346(b)(1)) what negligent or wrongful acts or omissions of government employees allegedly gave rise to them, beyond unsubstantiated and unexplained numerical citations to factual averments. Plaintiff has “promulgated a ‘shotgun’ pleading that overwhelms Defendant with an unclear mass of allegations and makes it difficult or impossible for defendants to make informed responses to the plaintiff's allegations.” Sollberger v. Wachovia Sec., LLC, No. SACV 09-0766, 2010 WL 2674456, *4 (C.D. Cal. June 30, 2010) (“They are unacceptable. . . . plaintiffs must give the defendants a clear statement about what the defendants allegedly did wrong”). “Where, as here, the plaintiff asserts multiple claims for relief, a more definite statement, if properly drawn,” will present each claim “with such clarity and precision that the defendant will be able to discern what the plaintiff is claiming and to frame a responsive pleading.” Iqbal, 556 U.S. at 678. This will also relieve this Court of the task of sifting through myriad claims. Id. Consequently, this Court should dismiss Plaintiff’s Complaint, and should it be permitted to survive, compel Plaintiff to amend it in conformity with Federal Rules 8 and 10, such that Defendant may frame a proper response thereto. See Fed. R. Civ. P. 12(e). III. CONCLUSION For the foregoing reasons, this Court should dismiss Plaintiff’s Complaint without Case 4:16-cv-00639-JR Document 8 Filed 03/16/17 Page 7 of 8 - 8 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 leave to amend. RESPECTFULLY SUBMITTED this 16th day of March, 2017. ELIZABETH A. STRANGE Acting United States Attorney District of Arizona s/Katherine V. Foss KATHERINE V. FOSS Assistant U.S. Attorney Copy of the foregoing served electronically or by other means this 16th day of March, 2017, to: Arthur D’Amario III 52 Dayton Court North Kingstown, RI 02852 s/ P. Vavra Case 4:16-cv-00639-JR Document 8 Filed 03/16/17 Page 8 of 8