Opinion
DOCKET NO. 00-CV-0436E(Sc).
March 9, 2001.
Pro Se, Jamestown, N.Y. 14701, ATTORNEYS FOR THE PLAINTIFF.
Jane B. Wolfe, Esq., Asst. United States Attorney, 138 Delaware Ave., Buffalo, N.Y. 14202, ATTORNEYS FOR THE DEFENDANT:
MEMORANDUM and ORDER
Plaintiff filed suit May 23, 2000 against Special Agent Thomas Ferri of the Federal Bureau 0f Investigation ("FBI") and the United States of America under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and 2671-2680. The factual basis of his complaint, stated in its entirety is that:
Plaintiff named Thomas Fern, in his complaint; however defendants state that the real name of such defendant is Richard J. Fern. Mem. of Law in Supp. of Mat. to Dismiss at n. 1.
"On April 17, 2000, I [4 Anthony Samuel Tota, Plaintiff, entered the FBI office, 241 Federal Building, Jamestown, New York. I meat [ sic] Federal agent Thomas Ferri, and asked him if we could talk in his office. He denied my request. However agent Fern, told me to talk to him in the enterancway [ sic] of the office. The insuing [ sic] conversation was held in the entreancway [ sic] because he denied me access to his office. The conversation was held in front of two other people that were present at the office. My inquiries were reguarding [ sic] a possible illegal investigation by the FBI upon myself. During the course of that conversation Agent Ferri maliciously attacked my character and used obscene language directed at myself. Agent Ferri used the word "FUCK", directing that word to me. He also attacked my character by insulting phrases." Compl. ¶ 8.
Plaintiff alleges that based upon the above facts, "Defendant, FBI agent Thomas Ferri's illegal action is a direct violation [of] my basic Constitutional rights. Through the Federal Tort Claims Act, he is liable for his actions." Compl. ¶ 9. On August 7, 2000 defendants filed a motion seeking to substitute the United States as defendant for Agent Ferri and to dismiss him from the lawsuit pursuant to 28 U.S.C. § 2679 (b), to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure ("FRCvP") and for failure to state a claim pursuant to Rule 12(b)(6).
Plaintiff's sole response to defendant's motion is that he is entitled to a jury trial as of right because FRCvP 38 states that the "right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate" and, under the Administrative Procedure Act, 5 U.S.C. § 702, a "person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning 0f a relevant statute, is entitled to judicial review thereof." Mem. of law in Supp. of the P1.'s Resp. Against Dismissal. This argument is meritless, however, because the Supreme Court has expressly held that section 702 "does not afford an implied grant of subject-matter jurisdiction permitting federal judicial review agency action." Califano v. Sanders, 430 U.S. 99, 107 (1977).
Presently before this Court is defendants' motion to substitute the United States as defendant in place of Agent Fern and to dismiss.
Preliminarily, this Court notes that plaintiff does not state whether Agent Fern is being sued individually or in his official capacity and, while he states that he brings this action pursuant to the Federal Tort Claims Act, he then states that he does so to remedy a violation of his Constitutional rights. Accordingly for purposes of this motion, this Court will assume that plaintiff is suing Agent Ferri in both his individual and official capacities and that he is bringing this action based upon both the violation of his Constitutional rights and tort.
Plaintiff claims that the United States and Agent Ferri, in his official capacity, violated his Constitutional rights. "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit. Sovereign immunity is jurisdictional in nature." Federal Deposit Insurance Corporation v. Meyer, 510 U.S. 471, 475 (1994). To the extent that plaintiff couches his complaint in terms of a violation of his constitutional rights, such claim must be dismissed against the United States because it has not waived sovereign immunity for constitutional violations. Id. at 477-478. This claim must also be dismissed against Ferri in his official capacity because an action against a federal officer in his official capacity is in essence an action against the United States. Robinson v. Overseas Military Sales Corporation, 21 F.3d 502, 510 (2d Cir. 1994). Accordingly plaintiff's claims that the United States and Ferri — in his official capacity — violated his constitutional rights will be dismissed for lack of subject matter jurisdiction.
Internal citations omitted.
Plaintiff also claims that Agent Ferri, in his5 individual capacity, violated his constitutional rights. An action may be brought against a federal officer in his individual capacity for violating a plaintiff's Constitutional rights. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 397 (1971). "To state a Bivens claim, [a plaintiff] must specifically plead facts showing a constitutional violation." Berman v. Turecki, 885 F. Supp. 528, (S.D.N.Y. 1995) (citing Barbera v. Smith, 836 F.2d 96, 99 (2d Cir. 1987), cert. denied, 489 U.S. 1065 (1989). Defendant seeks to dismiss this claim on the ground that plaintiff fails to state a cause of action for violation of his Constitutional rights. In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the court must assume the facts alleged by plaintiff to be true and should not dismiss the complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Even with the greater laxity given to pro se pleadings — Haines v. Kerner, 404 U.S. 519, 520-521 (1972) —, plaintiff has failed to plead any facts which could constitute a violation of his Constitutional rights and accordingly plaintiff's claim that Agent Ferri, in his individual capacity, violated his Constitutional rights will be dismissed for failure to state a claim under FRCvP 12(b)(6).
During oral argument on this motion, plaintiff claimed that his constitutional right to enter the FBI office and his right to privacy were violated when Fern refused to allow him to enter his office and instead spoke with him in the entranceway.
Plaintiff also claims that the acts of Agent Ferri were tortious. A federal employee acting within the scope of his employment is immune from common law tort claims. Yalkut v. Gemignani, 873 F.2d 31, 34 (2d Cir. 1989). However, under the Federal Torts Claim Act, Congress waived the sovereign immunity of the United States for "certain torts committed by federal employees." Meyer, at 475. When a complaint is filed seeking monetary damages against an employee of the United States based upon a wrongful act done within the scope of such employee's employment, that employee must be dismissed from the action and the United States substituted as defendant in his stead. 28 U.S.C. § 2679(d); Robinson at 509. The United States Attorney has certified that Agent Fern was acting within the scope of his employment during his April 17, 2000 encounter with plaintiff and, accordingly, the United States must be substituted for Agent Ferri and Agent Ferri dismissed from this action. Mem. of Law in Supp. of Mot. to Dismiss Ex. B (Certification of Scope of Employment).
Plaintiff's only remaining cause of action is therefore against the United States based on alleged tortious conduct of Agent Ferri. The Federal Tart Claims Act is the exclusive mechanism to bring a common law tort claim against the United States. United States v. Smith, 499 U.S. 160, 166 (1991). Such Act "requires that a claimant against the federal government file an administrative claim with the appropriate agency prior to institution of suit." Keene Corporation v. United States, 700 F.2d 836, 840 (2d Cir.), cert. denied, 464 U.S. 864 (1983). The filing of a notice of claim is a jurisdictional requirement which cannot be waived. Id. at 841. If a plaintiff fails to file an administrative claim, the complaint must be dismissed for lack of subject matter jurisdiction. Robinson, at 510. Plaintiff did fail to file an administrative claim and, consequently, this Court lacks subject matter jurisdiction to hear this claim.
Accordingly, it is hereby ORDERED that defendants' motion to (1) dismiss the constitutional claims against the United States and Agent Ferri in his official capacity for lack of subject matter jurisdiction, (2) dismiss the constitutional claim against Agent Ferri in his individual capacity for failure to state a claim upon which relief can be granted, (3) substitute the United States for Agent Ferri as sole defendant in the tort claim and, then, (4) dismiss the tort claim for lack of subject matter jurisdiction is granted and that this case shall be closed in this Court.