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McMann v. United States

United States District Court, D. Massachusetts

June 18, 2014

PAUL J. McMANN, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

MEMORANDUM AND ORDER

PATTI B. SARIS, Chief District Judge.

For the reasons set forth below, the Court denies plaintiff's motion to stay and grants defendants' motion to dismiss.

BACKGROUND

Plaintiff initiated this Bivens action[1] in 2012 while he was a pretrial detainee at Wyatt Detention Center. His complaint raises several challenges concerning his pretrial detention, including (1) the denial of his request for bail in his federal criminal proceeding; (2) the failure to the judge in the criminal matter to adequately specify in the record the reasons for detaining plaintiff McMann; (3) the violation of his right to a speedy trial; and (4) a challenge to the Bail Reform Act of 1984.

The complaint also challenges the conditions of plaintiff's pre-trial detention at the Wyatt Detention Center. Specifically, McMann alleges that he had a vitamin D deficiency that led to depression that was not properly treated. The complaint includes several other allegations related to (1) concerns over being detained in a maximum security prison with convicted felons; (2) concerns over the failure to be appointed counsel to defend himself in a civil suit where he was named a defendant; (3) concerns that prior to filing the instant complaint, Wyatt staff conspired with the government to confiscate the complaint; and (4) the government failed to make available photocopying, postage and telephone calls at a reasonable price.

On November 1, 2013, the government moved to dismiss the case pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. See Docket No. 42. Several days later, on November 5, 2013, McMann filed a pro se motion seeking "a stay of all deadlines." See Docket No. 45.

In support of his motion to stay, McMann explains that he is being moved into the custody of the Federal Bureau of Prisons and does not know which prison facility he will be sent to serve his sentence. Id. at ¶¶ 1-2. McMann asks that all correspondence to the Wyatt Detention Facility "immediately cease until he reaches his final BOP destination and is able to notify the Court of his location and mailing address." Id. at ¶ 6.

Since seeking a stay in November 2013, McMann has not kept this court apprised of his address. He was released from BOP custody on March 14, 2014. See Federal Bureau of Prisons Inmate Locator, http://www.bop.gov/inmateloc. (last visited June 16, 2014). Plaintiff clearly failed to timely oppose the motion to dismiss or otherwise litigate this case. However, even if plaintiff had informed the court of his new address, his claims fail substantially for the reasons set forth in the defendants' memorandum in support of the motion to dismiss.

REVIEW

Because the issues analyzed here arise in the context of a motion to dismiss, this Court presents the facts as they are related in plaintiff's complaint, Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc. , 524 F.3d 315, 321 (1st Cir. 2008), and construes those facts in the light most favorable to plaintiff, see Pettengill v. Curtis , 584 F.Supp.2d 348, 362 (D.Mass. 2008) (quoting Rodriguez-Ortiz v. Margo Caribe, Inc. , 490 F.3d 92, 96 (1st Cir. 2007)).

When examining the sufficiency of the pleadings, the court considers whether the plaintiff has pled "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citation omitted). Legal conclusions couched as facts and "threadbare recitals of the elements of a cause of action" will not suffice. Id .; see also Ocasio-Hernandez v. Fortuno-Burset , 640 F.3d 1, 12 (1st Cir. 2011).

DISCUSSION

To the extent McMann brings this action pursuant to the Federal Tort claims Act (FTCA), such a claim is subject to dismissal. The FTCA provides for a waiver of sovereign immunity for monetary damages against the federal government or a federal employer, under certain circumstances. 28 U.S.C. §§ 2674. The Supreme Court has held that "... Congress views FTCA and Bivens as parallel, complementary causes of action." Carlson v. Green , 446 U.S. 14, 20-21, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). This has been interpreted to mean that Bivens is the method by which constitutional tort claims are brought, while claims for negligence and certain intentional (but not constitutional) torts are brought under the FTCA. Washington v. Drug Enforcement Admin. , 183 F.3d 868, 873-74 (8th Cir. 1999).

To the extent McMann brings this action pursuant to the FTCA, this Court is without subject matter jurisdiction because plaintiff's failure to allege presentation is fatal to his complaint. See e.g., United States v. Kubrick , 444 U.S. 111, 113 (1979) (action brought against the United States under the FTCA must be dismissed if a plaintiff has failed to file a timely administrative claim with the appropriate federal agency); accord Gonzalez-Bernal v. United States , 907 F.2d 246, 248 (1st Cir. 1990) (same). ...


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