MEMORANDUM OPINION AND ORDER
JAMES C. CACHERIS, District Judge.
Alexander Otis Matthews, a federal inmate proceeding pro se, has filed a civil rights action, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971) and the Federal Tort Claims Act ("FTCA"), alleging that defendants maliciously prosecuted him in a mortgage fraud case. He submitted an application to proceed in forma pauperis. Plaintiff then filed a motion to voluntarily dismiss the FTCA claims, because he had not exhausted his administrative remedies, which the Court granted in an Order dated January 10, 2013. Plaintiff then exhausted his administrative remedies and filed a Motion to Add his FTCA claims and voluntarily dismiss his Bivens claims, which the Court granted on July 8, 2013. Thus, plaintiff now brings this suit pursuant to the FTCA against a sole defendant, the United States Government. After reviewing plaintiffs complaint, his loss of consortium claim and intentional infliction of emotional distress claim against defendant must be dismissed pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim. Defendant will be directed to file an answer or other responsive pleadings regarding plaintiffs remaining claims.
Though plaintiff now brings his claim pursuant to the FTCA instead of Bivens, his allegations remain the same. Compare Am. Compl. ¶¶ 1-60, with Mot. Add FTCA Suit ¶¶ 14-42. Plaintiff alleges that the FBI agents and the Assistant United States Attorneys ("AUSAs") involved in his mortgage fraud case falsely prosecuted him when they failed to disclose and take action on an alleged conflict his original attorney had between himself and co-defendant, who later became a state's witness. Plaintiff argues that this denied him "conflict free counsel" in violation of his Sixth Amendment rights, which constitutes negligence and wrongful conduct. Mot. Add. FTCA Suit ¶ 19-21. Plaintiff alleges that "defendant United States of America is liable to the plaintiff for the unlawful action of AUSA Pauze and FBI Agent Alicia Wojtkonski." Id. at ¶ 21.
Plaintiff also claims that defendant is liable for the alleged false statements made during his sentencing by AUSA Faulconer that were "based on double hearsay alleging the claimant to have committed sexual assault and attempted rape against his ex-wife, when in fact it was an assault and battery case that had been dismissed." Id. at ¶ 32. Similarly, plaintiff alleges defendant is liable for AUSA Faulconer sending a victim impact statement that "falsely and maliciously portrayed [him] as a foreign national of Ethiopian origins who had been converted to Islam on the hands of a known radical Islamist preacher." Id. at 33. As discussed above, though these allegations are the same allegations plaintiff brought in his amended complaint, in which plaintiff brought Equal Protection Clause claims and false prosecution claims, here plaintiff labels his claims"negligence, wrongful conduct, negligent supervision, loss of consortium, and intentional infliction of emotional distress." As such, the Court will construe plaintiff's claims as such.
II. Standard of Review
In reviewing a complaint pursuant to § 1915A, a court must dismiss a prisoner complaint that is frivolous, malicious, or fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915A(b)(1). Whether a complaint states a claim upon which relief can be granted is determined by "the familiar standard for a motion to dismiss under Fed.R.Civ.P. 12(b)(6)." Sumner v. Tucker 9 F.Supp.2d 641 , 642 (E.D. Va. 1998). Thus, the alleged facts are presumed true, and the complaint should be dismissed only when "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding , 467 U.S. 69, 73 (1984). In reviewing a complaint pursuant to § 1915A, a court must dismiss a prisoner complaint that is frivolous, malicious, or fails to state a claim upon which relief can be granted. 28 U.S.C, § 1915A(b)(1). Whether a complaint states a claim upon which relief can be granted is determined by "the familiar standard for a motion to dismiss under Fed.R.Civ.P. 12(b)(6)." Sumner v. Tucker , 9 F.Supp.2d 641, 642 (E.D. Va. 1998). Thus the alleged facts are presumed true, and the complaint should be dismissed only when "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding , 467 U.S. 69, 73 (1984). To survive a 12(b)(6) motion, "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)).
A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678; Twombly, 555 U.S. at 556. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice[, ]" however, to meet this standard, and a plaintiffs "[f]actual allegations must be enough to raise a right to relief above the speculative level " Twombly , 550 U.S. at 555. Moreover, a court "is not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 129 S.Ct. at 1949-1950.
Generally, the United States and its agencies enjoy sovereign immunity from suit unless Congress has explicitly abrogated such immunity. United States v. Sherwood , 312 U.S. 584, 586 (1941). The FTCA provides a limited waiver of that immunity insofar as it allows the United States to be held liable "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government... under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred, " 28 U.S.C. § 1346(b)(2); see Suter v. United States , 441 F.3d 306, 310 (4th Cir.), cert, denied, 127 S.Ct. 272 (2006). Because it appears that the alleged events upon which plaintiffs claim is based all took place in Virginia, Virginia law applies.
Loss of Consortium
Virginia no longer recognizes a loss of consortium cause of action. The United States Court of Appeals for the Fourth Circuit held that a wife could not bring a claim for loss of consortium under Virginia Code $55-36. See Carey v. Foster , 345 F.2d 772 (4th Cir. 1965). Thus, this claim will be dismissed, for failure to state a claim pursuant to § 1915A.
Intentional Infliction of Emotional Distress
"The tort of intentional infliction of emotional distress is not favored' in the law, because there are inherent problems in proving a claim alleging injury to the mind or emotions in the absence of accompanying physical injury." Supervalu, Inc. v. Johnson , 276 Va. 356, 370 (2008) (quoting Almy v. Grisham , 273 Va. 68, 77 (2007)). A plaintiff alleging intentional infliction of emotional distress "must prove his case by clear and convincing evidence." Id . In Virginia, to state a claim for intentional infliction of emotional distress, a plaintiff must allege that: (1) the defendant acted intentionally or recklessly; (2) the behavior was outrageous or intolerable; (3) a causal connection exists between the behavior and the emotional distress; and (4) the resulting emotional distress was severe. Harris v. Kreutzer , 271 Va. 188, 203 (2006); Supervalu. Inc. , 276 Va. at 370. "With respect to the first element, a plaintiff must show that the wrongdoer had the specific purpose of inflicting emotional distress or where he intended his specific conduct and knew or should have known that emotional distress would likely result.'" Taylor v. CNA Corp. , 782 F.Supp.2d 182, 205 (E.D. Va. 2010) (quoting Womack v. Eldridge , 215 Va. 338, 342 (1974.) Plaintiffs own allegations admit that ...