                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                                              )
JAMES F. JOHNSON,                             )
                                              )
                       Plaintiff,             )
                                              )
       v.                                     )       Civil Action No. 07-1859 (RBW)
                                              )
UNITED STATES OF AMERICA, et al.,             )
                                              )
                       Defendants.            )
                                              )


                                    MEMORANDUM OPINION

       This matter is before the Court on the defendants’ motion to dismiss the complaint.1 For

the reasons set forth below, the motion will be granted.

                                        I. BACKGROUND

       At all times relevant to the complaint, the plaintiff was a prisoner incarcerated at the

Federal Correctional Institution in Fort Dix, New Jersey (“FCI Fort Dix”). On or about January

10, 2007, the plaintiff was taken by ambulance to the Saint Francis Medical Center for the

treatment of head injuries sustained in an altercation with a staff member. See Compl. at 2.

Because inmates were not allowed to take property with them when transported to a location

outside the correctional facility, the plaintiff’s property, including items purchased from the

prison commissary, a “Sony radio, head phones, Daisey typing wheel, typing ribbon, legal

documents [and an] inmate ID card, were immediately confiscated [by BOP staff] for ‘security



1
       The Court construes the plaintiff’s Petition for Suit in Equity (Pursuant to 42 [] U.S.C. §
1983) [Dkt. #1] as a civil complaint.

                                                  1
reasons[.]’” Id. Upon the plaintiff’s return to FCI Fort Dix, a property officer returned the

confiscated property to him. Id at 2-3. At that time, the plaintiff noted that his radio and other

items were missing. Id. at 3.

        The plaintiff submitted an administrative claim to the Federal Bureau of Prisons (“BOP”)

under the Federal Tort Claims Act (“FTCA”), see 28 U.S.C. § 1346 (2006), demanding $139.15

as compensation for the lost property. See Compl. at 3; see also id. at 4, Ex. 5 (August 28, 2007

Memorandum regarding Administrative Tort Claim No. TRT-NER-2007-02549). The BOP

denied the administrative claim, offering the plaintiff the following explanation:

                   You signed an Inmate Personal Property Release form on January 10,
                   2007 and January 23, 2007. Your signature indicates the accuracy of
                   the inventory on both dates. On January 10, 2007, a radio was the
                   only item you indicated was missing. You provided no evidence you
                   possessed a radio on this date. On January 23, 2007, you did not list
                   any items as missing. There is no evidence to suggest you
                   experienced a compensable loss as the result of negligence on the
                   part of any [BOP] employee.

Id. at 4, Ex. 5.

        The Court construes the complaint as bringing claims against the United States of

America under the FTCA and under 42 U.S.C. § 1983, and against the Director of the BOP in his

individual capacity under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics,

403 U.S. 388 (1971). The plaintiff demands compensatory and punitive damages totaling

$150,000. Compl. at 3. The defendants move to dismiss on two grounds: (1) that the Court

lacks subject matter jurisdiction over the FTCA claim, and (2) that the complaint fails to state a

civil rights claim. See Memorandum of Points and Authorities in Support of Defendant’s [sic]

Motion to Dismiss (“Defs.’ Mot.”) at 4-9.




                                                    2
                                         II. DISCUSSION 2

                                          A. FTCA Claim 3

       “It is axiomatic that the United States may not be sued without its consent and that the

existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206,

212 (1983). “Absent a waiver, sovereign immunity shields the Federal Government and its

agencies from suit.” Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). The FTCA

serves as a limited waiver of sovereign immunity, rendering the United States amenable to suit

for certain, but not all, tort claims. See Richards v. United States, 369 U.S. 1, 6 (1962); Scanwell

Lab., Inc., v. Thomas, 521 F.2d 941, 947 (D.C. Cir. 1975); Richardson v. United States Dep’t of

the Interior, 740 F. Supp. 15, 20 n.10 (D.D.C. 1990). Generally, the FTCA provides that the

“United States shall be liable [for tort claims] in the same manner and to the same extent as a

private individual under like circumstances.” 28 U.S.C. § 2674 (2006). Individuals may bring

“claims against the United States, for money damages . . . for injury or loss of property . . .

caused by the negligent or wrongful act or omission of any employee of the Government while

acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1) (2006).

       The FTCA exempts from its waiver provision certain types of claims, see 28 U.S.C. §§

2680(a)-(n) (2006), and the exemption relevant to this action bars “[a]ny claim arising in respect

of the assessment or collection of any tax or customs duty, or the detention of any goods,


2
       Insofar as the plaintiff brings this action against the BOP’s Director in his official
capacity, the suit is “treated as a suit against the [government] entity” itself. Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985).
3
        Only the United States is a proper defendant to a claim under the FTCA. See 28 U.S.C. §
2674 (2006) (providing for the United States’ liability for certain tort claims). Therefore, a claim
under the FTCA against the BOP’s Director in his individual capacity must be dismissed for lack
of subject matter jurisdiction. See Cox v. Sec’y of Labor, 739 F. Supp. 28, 29 (D.D.C. 1990).

                                                  3
merchandise, or other property by any officer of customs or excise or any other law enforcement

officer.” 28 U.S.C. § 2680(c) (emphasis added). This exception precludes a negligence claim

arising from the detention of goods as well as the “negligent handling or storage of detained

property.” Kosak v. United States, 465 U.S. 848, 854 (1984). In addition, the Supreme Court

has interpreted the phrase “any other law enforcement officer” to encompass BOP officers. Ali

v. Fed. Bureau of Prisons, 552 U.S. 214, __, 128 S. Ct. 831, 835-37 (2008).

       Here, the plaintiff alleges that BOP staff confiscated his property when he left FCI Fort

Dix for medical treatment and that certain items were lost. Because the plaintiff essentially

claims negligence in the handling of his detained property by BOP officers, his claim is

precluded under 28 U.S.C. § 2680(c). The FTCA claim, then, must be dismissed for lack of

subject matter jurisdiction. See McKinney v. United States, No. 05-344, 2009 WL 249366, at *2

(S.D. Ill. Feb. 3, 2009) (concluding that “the BOP detained McKinney’s books when they

confiscated them during McKinney’s move to the Special Housing Unit and thus McKinney’s

property claim is therefore barred by 28 U.S.C. § 2680(c)”); Corley v. United States, No.

5:08cv177, 2008 WL 5412422, at *4 (S.D. Miss. Dec. 23, 2008) (dismissing prisoner’s FTCA

claim for lack of subject matter jurisdiction because BOP staff members were “other law

enforcement” officers who “detained” plaintiff’s personal property under Section 2680(c)).

                                    B. Constitutional Claims

      1. Claims Against the United States and the BOP’s Director in his Official Capacity

       In relevant part, 42 U.S.C. § 1983 provides:

               Every person who, under color of any statute, ordinance, regulation,
               custom, or usage, of any State or Territory or the District of
               Columbia, subjects, or causes to be subjected, any citizen of the
               United States or other person within the jurisdiction thereof to the
               deprivation of any rights, privileges, or immunities secured by the

                                                 4
               Constitution and laws, shall be liable to the party injured in an action
               at law, suit in equity, or other proper proceeding for redress[.]

Id. (emphasis added). “To state a claim under § 1983, a plaintiff must allege the violation of a

right secured by the Constitution and laws of the United States, and must show that the alleged

deprivation was committed by a person acting under color of state law.” West v. Atkins, 487

U.S. 42, 48 (1988). “To constitute a state action, the [alleged] deprivation must be caused by the

exercise of some right or privilege created by the State . . . or by a person for whom the state is

responsible[.]” Id. at 49 (alterations added) (citation omitted). The party charged with the

deprivation must be a person who is “clothed with the authority of state law,” United States v.

Classic, 313 U.S. 299, 326 (1941), and “a person who may fairly be said to be a state actor,”

Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982). Thus, § 1983 only applies to state

actors; it does not apply to federal officials acting purely under the color of federal law. See

Williams v. United States, 396 F.3d 412, 414-15 (D.C. Cir. 2005) (holding that a federal official

making an arrest pursuant to state law cannot be sued under § 1983 because his authority to act

comes from federal law, not state law).

       The BOP is a federal agency, see Pub. L. No. 71-218, 46 Stat. 325 (1930) (establishing

the BOP’s responsibility to manage and regulate all federal penal and correctional institutions),

and its Director necessarily performs his duties pursuant to federal law. Because the plaintiff

does not allege that the defendants acted under color of state or District of Columbia law, the

plaintiff’s § 1983 claim must be dismissed against both the United States and against BOP’s

Director in his official capacity. See, e.g., Gabriel v. Corr. Corp. of Am., 211 F. Supp. 2d 132,

135-36 (D.D.C. 2002) (dismissing § 1983 claim against the BOP under Rule 12(b)(6) because

“BOP is not a state official acting under color of state law”).


                                                  5
                  2. Claims Against BOP’s Director in his Individual Capacity

       In Bivens, the Supreme Court “recognized for the first time an implied private action for

damages against federal officers alleged to have violated a citizen’s constitutional rights.” Corr.

Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). It appears that the plaintiff’s constitutional

rights claim against Director Lappin is based on the theory of respondeat superior, and thus

purports to hold him liable for the wrongful acts of an agency employee committed within the

scope of that employment. See generally Monell v. New York City Dep’t of Soc. Servs., 436 U.S.

658, 690-94 (1978).

       In order for a constitutional claim to succeed under Bivens, the plaintiff must show that

each defendant is directly responsible for the improper action. Cameron v. Thornburgh, 983

F.2d 253, 258 (D.C. Cir. 1993). Here, the plaintiff does not make any direct allegations against

BOP’s Director, or against any other BOP officer. Rather, the plaintiff merely asserts that, “if

the BOP were to answer [t]o any other type of authority, the Director would be the one person,

inclusive of others, [w]hom would be held to be accountable for any illegal actions accountable

to any BOP [e]mployee.” Plaintiff’s Response in Opposition to Defendants’ [sic] Motion to

Dismiss at 3-4. The plaintiff suggests, then, that his claim against BOP’s Director is based

solely on his position as the agency head and his perceived responsibility for the actions of all of

his subordinates. The Director’s supervisory role as the head of the BOP does not render him

personally liable for the alleged wrongful acts of the BOP’s employees. See Monell, 436 U.S. at

691 (concluding that respondeat superior liability cannot form the basis of liability for a § 1983

claim). Because a Bivens claim cannot be based on the theory of respondeat superior, and the

plaintiff fails to articulate the specific action the BOP’s Director or any other BOP officer took

in violation of his constitutional rights, the Bivens claim must be dismissed. See Cameron v.

                                                  6
Thornburgh, 983 F.2d at 258 (concluding that a complaint naming the Attorney General and the

BOP Director as defendants based on theory of respondeat superior, without allegations

specifying their involvement in the case, does not state Bivens claims against them); Epps v.

United States Attorney General, 575 F. Supp. 2d 232, 239 (D.D.C. 2008) (citing Marshall v.

Reno, 915 F. Supp. 426, 429-30 (D.D.C. 1996)) (“A superior official cannot be held liable under

Section 1983 or Bivens for the constitutional torts of employees under him or her; the common

law theory of respondeat superior does not pertain to the federal government in this context.”).

                                       III. CONCLUSION

       The Court concludes that it lacks subject matter jurisdiction over plaintiff’s FTCA claim

and that the complaint fails to state a civil rights claim under 42 U.S.C. § 1983. For these

reasons, the Court will grant defendants’ motion to dismiss. An Order consistent with this

opinion is issued separately.



                                                                 /s/
                                                     REGGIE B. WALTON
                                                     United States District Judge
DATE: August 11, 2009




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