United States District Court, E.D. Virginia, Alexandria Division
Anthony J. Trenga Judge.
Manley, a federal inmate proceeding pro se, has filed a civil
action pursuant to the Federal Tort Claims Act, 28 U.S.C.
§§1346, 2671 et seq., seeking damages for property
that was lost or stolen when he was transferred from FCI
Phoenix to FCI Petersburg. By Order dated July 7, 2016, the
complaint was deemed filed and the Clerk was directed to
"send by certified mail, pursuant to Fed.R.Civ.P. 4(i),
a copy of [that] Order and the complaint with exhibits (Dkt.
No. 1) to the United States Attorney for the Eastern District
of Virginia." Dkt. No. 11. Now before the Court are
plaintiffs Motion for Default Judgment, Dkt. No. 14, which
the United States opposes, Dkt. No. 19, and the United
States' Motion to Dismiss, which is accompanied by a
supporting memorandum and the notice required by Roseboro
v. Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule
7(K), Dkt. Nos. 16-17, and is objected to by plaintiff, Dkt.
No. 23. After consideration of these submissions, the United
States' Motion to Dismiss will be granted, plaintiffs
Motion for Default Judgment will be denied, and judgment will
be entered in favor of the United States.
Factual and Procedural History
about May 16, 2014, while confined in the FCI Phoenix
("PHX"), plaintiff was relocated from the medium
unit to the special housing unit ("SHU") and an
unknown PHX officer was tasked with "packing-out"
plaintiff s cell in the medium unit. Compl. ¶¶ 7-8.
According to plaintiff, he was never provided with "an
inventory of his personal or legal items, after thay [sic]
were packed-out." Id. ¶ 9. On or about
July 11, 2014, plaintiff was transferred out of PHX to FCI
Petersburg ("PEM"). Id. ¶ 10. On
approximately August 4, 2014, plaintiff received a delivery
at PEM that included "one (1) box of legal materials,
" but he was missing some of the other items
"packed-out" during his intra-facility transfer at
PHX. Id. ¶ 11.
states that on or about August 24, 2014, after he had not
received any further shipments from PHX, he contacted a
counselor at PEM who agreed to contact a property officer in
the Receiving and Discharge Department of PHX to inquire into
the whereabouts of plaintiff s missing property. Id.
¶ 12; Dkt. No. 1, Ex. 5. According to plaintiff, the PEM
counselor informed plaintiff that a PHX employee stated that
"approximately twenty (20) boxes of personal and legal
books" belonging to plaintiff had been left at PHX, and
those boxes would be sent to plaintiff "at a cost not to
exceed $300.00." Compl. ¶ 12. On or about September
4, 2014, plaintiff states that he contacted a unit manager at
PEM to discuss why he had not yet received his property from
PHX, and the PEM unit manager sent an email of similar effect
to an employee at PHX on plaintiff s behalf. Id.
¶ 15. According to plaintiff, the unit manager received
a response from PHX on approximately September 8, 2014, and
advised plaintiff that his property would be sent to PEM
"for an additional $ 188.32." Id. ¶
16. Plaintiff states that a counselor then accompanied him to
the commissary to purchase the additional postage, which
plaintiff gave to the counselor to send to PHX. Id.
¶ 17. On or about October 3, 2014, plaintiff received
two (2) additional boxes containing legal papers from PHX.
Id. ¶ 20.
November 4, 2015, plaintiff filed a "tort claim for $4,
794.34; for lost/stolem [sic] personal and legal
property" with the Federal Bureau of Prisons.
Id. ¶ 21. On November 19, 2015, plaintiff
received a response denying his claim (No.
TRT-WXR-2016-00850). Dkt. No. 1, Ex. 36. Plaintiff filed a
motion for reconsideration on November 30, 2015, which was
denied on December 8, 2015. Dkt. No. 1, Ex. 38. On February
29, 2016, plaintiff filed the instant complaint pursuant to
the Federal Tort Claims Act 28 U.S.C. §§ 1346(b),
2671 et seq.-but without reference to the substantive law of
Virginia under which he believed the United States to be
liable-seeking "no less than $4, 794.34, " plus
interest for his lost/stolen property. Compl. In the
complaint, plaintiff asserts that the unknown officers at PHX
"were NOT engaged, in any way ... in a law
enforcement activity" when they lost/stole his property.
Id. ¶ 5.
Order dated July 7, 2016, the complaint was deemed filed, the
clerk was "directed to send by certified mail, pursuant
to Fed.R.Civ.P. 4(i), a copy of [the] Order and the complaint
with exhibits (Dkt. No. 1) to the United States Attorney for
the Eastern District of Virginia, " and the United
States was "DIRECTED to file an answer or other
responsive pleading to the complaint within sixty (60) days
of the date of service, pursuant to Fed.R.Civ.P.
12(a)(3)(A)." Dkt. No. 11. According to the United
States Attorney's Office, the United States
"received a copy of [the] July 2016 order from the
clerk's office, [but] it has no knowledge of having
received - through certified mail or otherwise - a copy of
the complaint (or the exhibits to the same)." Dkt. No.
17 at 4. The Assistant United States Attorney assigned to
this case states that after a significant of time passed
without service of the complaint, he contacted the Staff
Attorney's Office for the United States District Court
for the Eastern District of Virginia, Alexandria Division, to
identify the apparent service issue in an "attempted
exercise of good-faith, " but he does not indicate
whether he was able to pinpoint the source of the issue.
Id. at 4.
August 8, 2016, plaintiff wrote the Clerk to inquire about
obtaining "proof of service" on the United States.
Dkt.No. 12. On August 17, 2016, the Staff Attorney's
Office responded to plaintiffs missive, advising him that the
"Order of July 7 constituted service of your complaint
upon the United States, and directed the United States to
file a response to the complaint within sixty (60) days,
" but that the response was not yet due. Dkt. No. 13. On
October 31, 2016, plaintiff moved for a default judgment
against the United States pursuant to Federal Rule of Civil
Procedure 55(a) on the grounds that it had failed to respond
to the complaint "some fourty-two (42) [sic] days past
the deadline set by the court." Dkt. No. 14. On November
29, 2016, the United States filed a Motion to Dismiss,
pursuant to Federal Rule of Civil Procedure 12(b)(1), for
lack of jurisdiction with accompanying memorandum in support
and an opposition to plaintiffs motion for default judgment.
Dkt. Nos. 16-17, 19.
Standard of Review
to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a
party may challenge a court's subject matter jurisdiction
in an action as an affirmative defense. A party may present a
Rule 12(b)(1) motion in two critically different ways: first,
it may contend that a complaint fails to allege facts upon
which subject matter jurisdiction can be based; and second,
it may contend that the jurisdictional allegations of the
complaint are not true. Adams v. Bain. 697 F.2d
1213, 1219 (4th Cir. 1982). When, as here, subject matter
jurisdiction is challenged on the basis that the complaint
fails to allege facts upon which subject matter jurisdiction
can exist, "all the facts alleged in the complaint are
assumed true and the plaintiff, in effect, is afforded the
same procedural protection as he would receive under a Rule
12(b)(6) consideration." Id. Once subject matter
jurisdiction has been challenged, plaintiff, as the party
asserting jurisdiction, has the burden of proving that
subject matter jurisdiction does in fact exist. Piney Run
Preservation Ass'n v. Cty. Comm'rs of Carroll
Cty., 523 F.3d 453, 459 (4th Cir. 2008). Also pertinent
here, pursuant to Federal Rule of Civil Procedure 55(d), no
default judgment may be entered against the United States
unless a "claimant establishes a claim or right to
relief by evidence that satisfies the court."
has moved for a default judgment, pursuant to Federal Rule of
Civil Procedure 55,  on the ground that the United States has
failed to respond to his complaint within sixty days, as
directed in this Court's July 7, 2016 Order. Dkt. No. 14.
Plaintiff contends that the United States has yet to comply
with this Court's July Order because its Rule 12(b)(1)
motion "is NOT a 'responsive pleading'"
within the meaning of Fed.R.Civ.P. 12(a)(3)(A). In plaintiffs
view, the United States' failure to file a responsive
pleading necessitates the entry of a default judgment on his
behalf. Dkt. No. 14.
United States contends that it was never "properly
served with a summons and complaint as required both by the
Federal Rules of Civil Procedure and this Court's July
2016 order." Dkt. No. 17 at 2. Therefore, it asserts,
the sixty day period during which it must respond "has
not yet begun, much less expired." Dkt. No. 17 at 2.
Alternatively, the United States argues, pursuant to Rule
55(d), that plaintiff is not entitled to a default judgment
because the court lacks subject matter jurisdiction over his
claim, and this forecloses his ability to "demonstrate
that he is otherwise entitled to relief on the merits."
Dkt. No. 17. More specifically, the United States contends
that 28 U.S.C. § 2680(c) "precludes jurisdiction
over a FTCA claim based upon the loss of an inmate's
property by BOP officials during a transfer of that inmate
between BOP facilities, " and therefore, plaintiffs
claim must be dismissed. Dkt. No. 17 at 6.
response, plaintiff appears to contend that the United States
was actually served with the complaint, citing a response he
received from the Staff Attorney's Office stating that
the "order of July 7  constituted service of your
complaint upon the United States and directed the United
States to file a response to the complaint within sixty (60)
days, " but nonetheless failed to file an answer by the
September 6, 2016 deadline. Dkt. No. 23. In addition,
plaintiff argues that the United States' 12(b)(1) motion
"ignores the statutory empowderment [sic] enacted by
congress in 28 U.S.C. § ...