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Clervrain v. United States

United States District Court, D. Kansas

December 8, 2017

UNITED STATES OF AMERICA, et al., Defendants.



         Plaintiff, a federal inmate incarcerated at the Reeves County Detention Center in Pecos, Texas, proceeds pro se in this matter seeking damages under the Federal Tort Claims Act (FTCA) and documents and information under the Freedom of Information Act (FOIA). Mr. Clervrain alleges he suffered injury as a result of the Federal Bureau of Prisons' (BOP) aggregation of his FOIA requests and denial of his fee waiver request. For the reasons discussed below, Plaintiff is ordered to show cause why a portion of his complaint should not be dismissed.


         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of such entity to determine whether summary dismissal is appropriate. 28 U.S.C. § 1915A(a). Additionally, with any litigant, such as Plaintiff, who is proceeding in forma pauperis, the Court has a duty to screen the complaint to determine its sufficiency. See 28 U.S.C. § 1915(e)(2). Upon completion of this screening, the Court must dismiss any claim that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B).

         To survive this review, the plaintiff must plead “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). In applying the Twombly standard, the Court must assume the truth of all well-pleaded factual allegations in the complaint and construe them in the light most favorable to the plaintiff. See Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011).

         While a pro se plaintiff's complaint must be liberally construed, Erickson v. Pardus, 551 U.S. 89, 94 (2007), pro se status does not relieve the plaintiff of “the burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court need not accept “mere conclusions characterizing pleaded facts.” Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990). “[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal quotation marks omitted).


         Mr. Clervrain asserts that he is an activist who is directing his efforts at ending the “apartheid” of non-citizen prisoners in the federal prison system. In furtherance of his goal, he submitted several FOIA requests to BOP in August of 2015. By letter dated October 15, 2015, BOP informed Mr. Clervrain that his requests had been aggregated. It then appears that in March of 2016, Plaintiff appealed the decision to aggregate to the Office of Information Policy (OIP) at the Department of Justice (DOJ), as directed. OIP denied his appeal by letter dated May 13, 2016, and remanded his request for a fee waiver to the BOP regional offices. The letter informed Mr. Clervrain that he could file suit if he wanted to appeal the aggregation further. It is not clear to the Court whether BOP subsequently responded to Plaintiff's request for a fee waiver. Apparently, Mr. Clervrain next filed a claim for injury with the BOP on September 9, 2016, alleging a breach of BOP's duty under FOIA. BOP referred the claim to its North Central Regional Office, which denied the claim on June 29, 2017, finding Mr. Clervrain had not suffered an injury. The denial informed Plaintiff he could file suit within six months. This action followed.


         I. Venue

         Under FOIA, venue is proper in the district where claimant resides, in the district where agency records are situated, or in the District of Columbia. 5 U.S.C. § 552(a)(4)(B). Under the FTCA, claims may be brought “only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred.” 28 U.S.C. § 1402(b). The Court was initially confused as to why Plaintiff filed this action in the District of Kansas since he currently resides in Texas. It appears he did so because the BOP North Central Regional office is located in Kansas City, Kansas, and at least some of the records Plaintiff requested are located there. In addition, the denial of Plaintiff's FTCA claim came from the same office.

         II. FTCA Claim

         Plaintiff fails to state a claim under the FTCA. The Federal Tort Claims Act (FTCA) allows plaintiffs to seek damages from the United States for certain torts committed by federal employees. Simmons v. Himmelreich, 136 S.Ct. 1843, 1845, 195 L.Ed.2d 106 (2016). Mr. Clervrain bases his FTCA claim on BOP's alleged violation of a duty imposed by FOIA. Whether or not such a breach occurred, “[t]he breach of a duty created by federal law is not, by itself, actionable under the FTCA.” Love v. U.S., 60 F.3d 642, 644 (9th Cir. 1995); see also Clark v U.S., 326 F.3d 911, 914 (7th Cir. 2003); Ochran v. U.S., 273 F.3d 1315, 1317 (11th Cir. 2001). To recover under the FTCA, Plaintiff must show the government's actions, if committed by a private party, would constitute a tort in Kansas. 28 U.S.C. § 2674. Plaintiff cannot show that the government's actions in aggregating his FOIA requests and denying him a fee waiver would constitute a tort in Kansas if taken by a private party. As a result, Plaintiff fails to state a claim upon which relief may be granted under the FTCA, and his FTCA claim is subject to dismissal.

         III. ...

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