King v. USA

RESPONSE to Motion re MOTION to Amend/Correct 1 Complaint

E.D. Ark.January 27, 2010

See Plaintiff’s Complaint, Doc. # 1 (“This is a complaint for compensatory damages1 brought under 28 U.S.C. 2671, Federal Tort Claims Act[.]”). 1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS HELENA DIVISION ALAN R. KING, JR. PLAINTIFF V. 2:09CV00163 JMM/HDY UNITED STATES OF AMERICA DEFENDANT DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFF’S REQUEST TO AMEND COMPLAINT NOW COMES the United States of America (“Defendant”), by and through Jane W. Duke, United States Attorney for the Eastern District of Arkansas, and Jeffrey P. LaVicka, Assistant United States Attorney for said District, and respectfully brings this Response, as follows: 1. On July 9, 2009, Plaintiff filed his Complaint in the Eastern District of Michigan. See Document Entry (“Doc.”) # 1. 2. On October 23, 2009, the United States District Court for the Eastern District of Michigan transferred the above-styled matter to the Eastern District of Arkansas. See Doc. # 7. 3. On January 8, 2010, Defendant filed a Motion to Dismiss and a Brief in Support of said Motion. See Doc. #s 17 and 18. Defendant’s Motion to Dismiss is based on the fact that Plaintiff improperly brought his claims under the Federal Tort Claims Act (“FTCA”), and the Court lacks subject matter jurisdiction over1 Plaintiff’s claims brought under the FTCA. Case 2:09-cv-00163-JMM-HDY Document 21 Filed 01/27/2010 Page 1 of 5 2 4. On January 19, 2010, Plaintiff, apparently realizing he can’t bring his allegations against the defendant under the FTCA, filed a Request to Amend Complaint. See Doc. # 20. In his Request, Plaintiff states he “now realize[s] that these sort of claims cannot be brought under the FTCA and that the proper avenue for these sort of claims would be a Bivens action[.]” Id. at pg. 1. 5. “A Bivens claim is a cause of action brought directly under the United States Constitution against a federal official acting in his or her individual capacity for violations of constitutionally protected rights.” Buford v. Runyon, 160 F.3d 1199, 1203 n.6 (8 Cir. 1998) (referring to Bivens v. Six Unknown Named Agents ofth Fed. Bureau of Narcotics, 403 U.S. 388 (1971)). 6. Defendant has already filed a motion to dismiss, based on subject matter jurisdiction, and now Plaintiff seeks to substitute his original FTCA complaint with a Bivens complaint. A Bivens action is a very different cause of action than an FTCA action for several reasons. One of the most important differences between an FTCA suit and a Bivens action regards service of process. In a Bivens action, unlike in an FTCA action, the Plaintiff must effect service on the federal employee. See Fed. R. Civ. P. 4(i)(3) (“a party must serve the United States and also serve the officer or employee”) (emphasis added). 7. When a federal employee (or former federal employee) is served with a complaint against him in his individual capacity, he may seek representation from the Department of Justice. See generally 28 C.F.R. § 50.15. Representation may or may not be granted following a thorough review of the complaint. See id. Case 2:09-cv-00163-JMM-HDY Document 21 Filed 01/27/2010 Page 2 of 5 After a responsive pleading has been filed “a party may amend its pleading only with the2 opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.” See Fed. R. Civ. P. 15(a)(1) and 15(a)(2). See Fed. R. Civ. P. 12(e) (requirements for a more definite statement). 3 3 8. Plaintiff is essentially attempting to convert his original complaint from an FTCA action into a Bivens suit, and his effort to do so would be, at the very least,2 untimely because he has not effected the requisite service for a Bivens action, supra. If Plaintiff intended to file a Bivens action, then his complaint is subject to dismissal for failure to effect service in a timely manner. His complaint was originally filed on July 9, 2009, and his Request to Amend Complaint was filed on January 19, 2010, more than 180 days later. Plaintiff’s Complaint is subject to dismissal for lack of proper service. See Fed. R. Civ. P. 4(m) (“If a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time.”) (underlining added). 9. If the Court allows Plaintiff to file an amended complaint, despite the untimeliness of Plaintiff’s request, Defendant respectfully requests the Court require Plaintiff to: 1) file an amended complaint which explicitly states it is being brought exclusively as a Bivens action and specifies the allegedly3 unconstitutional conduct and specifies which constitutional provision has been violated for each allegedly improper act, i.e., 8 Amendment, 14 Amendment,th th etc.; and 2) require Plaintiff to serve Defendant as required under Fed. R. Civ. P. Case 2:09-cv-00163-JMM-HDY Document 21 Filed 01/27/2010 Page 3 of 5 Should the Court allow Plaintiff to file a new complaint, as a Bivens action, Defendant’s4 responsive pleading will not be due for at least 60 days from the date of service on the federal employee being sued in his individual capacity. See Fed. R. Civ. P. 12(a)(3). 4 4(i)(3). 4 WHEREFORE, Defendant respectfully requests the Court deny Plaintiff’s motion to amend his complaint, as untimely, and grant Defendant’s previously filed Motion to Dismiss; however, if the Court denies such request for dismissal, then Defendant respectfully requests the Court order Plaintiff to file a new complaint, styled as a Bivens action, and providing the requisite specificity for the alleged unconstitutional conduct, effect proper service, and grant Defendant all appropriate relief to which it is entitled. Respectfully submitted, JANE W. DUKE UNITED STATES ATTORNEY By: /s/ Jeffrey P. LaVicka JEFFREY P. LA VICKA ASSISTANT U.S. ATTORNEY ABN 2002079 P.O. Box 1229 Little Rock, AR 72203 (501) 340-2600 jeff.lavicka@usdoj.gov ATTORNEY FOR DEFENDANT Case 2:09-cv-00163-JMM-HDY Document 21 Filed 01/27/2010 Page 4 of 5 5 CERTIFICATE OF SERVICE I hereby certify that on January 27, 2010, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system; and I hereby certify that on January 27, 2010, I mailed the document by United States Postal Service to the following non CM/ECF participant: Alan R. King, Jr., PRO SE Reg. # 08297-028 Milan Federal Correctional Institution Post Office Box 1000 Milan, MI 48160 /s/ Jeffrey P. LaVicka JEFFREY P. LA VICKA ASSISTANT U.S. ATTORNEY Case 2:09-cv-00163-JMM-HDY Document 21 Filed 01/27/2010 Page 5 of 5