United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
ELIZABETH COWAN WRIGHT UNITED STATES MAGISTRATE JUDGE
In
2014, Lori Wattawa filed an action against the Department of
Homeland Security (“DHS”), the Secretary of the
DHS, and several other defendants alleging that the DHS
discriminated against her during the course of her
employment. That action was eventually dismissed with
prejudice pursuant to a settlement agreement. See Wattawa
v. Johnson, No. 14-cv-4853, Dkt. No. 32 (D. Minn. Oct.
13, 2015) (order of dismissal). Wattawa brings this action
renewing those discrimination claims and further alleging
that employees of the DHS have harassed and assaulted her
during and following the conclusion of her employment.
Wattawa
did not pay the filing fee for this action, but instead
applied for in forma pauperis (“IFP”)
status. (See Dkt. No. 2.) That IFP application must
be considered before any other action may be taken in this
matter.
After
review, this Court concludes that Wattawa qualifies
financially for IFP status. That said, an IFP application
will be denied, and an action will be dismissed, when an IFP
applicant has filed a complaint that fails to state a cause
of action on which relief may be granted. See 28
U.S.C. § 1915(e)(2)(B)(ii); Atkinson v. Bohn,
91 F.3d 1127, 1128 (8th Cir. 1996) (per curiam); Carter
v. Schafer, 273 Fed.Appx. 581, 582 (8th Cir. 2008) (per
curiam) (“[C]ontrary to plaintiffs' arguments on
appeal, the provisions of 28 U.S.C. § 1915(e) apply to
all persons proceeding IFP and are not limited to prisoner
suits, and the provisions allow dismissal without
service.”). In reviewing whether a complaint states a
claim on which relief may be granted, this Court must accept
as true all of the factual allegations in the complaint and
draw all reasonable inferences in the plaintiff's favor.
Aten v. Scottsdale Ins. Co., 511 F.3d 818, 820 (8th
Cir. 2008). Although the factual allegations in the complaint
need not be detailed, they must be sufficient to “raise
a right to relief above the speculative level . . . .”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). The complaint must “state a claim to relief
that is plausible on its face.” Id. at 570. In
assessing the sufficiency of the complaint, the court may
disregard legal conclusions that are couched as factual
allegations. See Ashcroft v. Iqbal, 556 U.S. 662
(2009). Pro se complaints are to be construed liberally, but
they still must allege sufficient facts to support the claims
advanced. See Stone v. Harry, 364 F.3d 912, 914 (8th
Cir. 2004).
As
mentioned above, Wattawa's complaint in this matter
raises two categories of claims. The first category of claims
concerns alleged discrimination during the course of her
employment with the DHS. By separate order, this Court will
grant Wattawa's IFP application and allow this matter to
proceed with respect to her employment discrimination
claims.[1]
The
second category of claims raised by Wattawa in the complaint
concern allegedly tortious behavior (assault, harassment, and
the like) by agents of the DHS during her employment and
thereafter. Those claims should be dismissed without
prejudice at the outset of this proceeding. The Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 1346(b),
provides the exclusive remedy for “injury or loss of
property, or personal injury or death arising or resulting
from 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. § 2679(b)(1);
accord United States v. Smith, 499 U.S. 160, 162-63
(1991). A claim under the FTCA, however, must be brought
against the United States itself, not the agency or employee
at issue. See F.D.I.C. v. Meyer, 510 U.S. 471,
477-78 (1994). Insofar as Wattawa seeks relief from
defendants Kevin McAleenan and Mark Morgan for allegedly
tortious behavior committed during the course of their
employment, she must seek relief from the United States
government itself (after exhausting available administrative
remedies, see Mader v. United States, 654 F.3d 794,
800-01 (8th Cir. 2011)), not from those individuals. Further,
even if Wattawa were to argue that the allegedly tortious
behavior extended beyond the scope of the office or
employment of the agents who committed that misconduct (and
thus that the FTCA does not provide the exclusive judicial
remedy for the claims raised), Wattawa does not allege that
McAleenan or Morgan themselves were personally involved in
the allegedly tortious behavior, and thus she has not stated
a claim for relief against those individuals either under
state law or, to the extent that the conduct is alleged to
violate Wattawa's constitutional rights, under Bivens
v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971); see also Buford v.
Runyon, 160 F.3d 1199, 1203 n.7 (8th Cir. 1998).
Accordingly,
the tort claims raised by Wattawa in her complaint cannot
proceed at this time, and it is recommended that those claims
be dismissed without prejudice.[2]Wattawa's IFP application will
be granted by separate order with respect to her employment
discrimination claims.
RECOMMENDATION
Based
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS RECOMMENDED that
all claims raised by plaintiff Lori A. Wattawa not related to
alleged discrimination during the course of her employment be
DISMISSED WITHOUT PREJUDICE pursuant to 28
U.S.C. § 1915(e)(2)(B).
NOTICE
Filing
Objections:
This
Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to
the Eighth Circuit Court of Appeals.
Under
Local Rule 72.2(b)(1), “a party may file and serve
specific written objections to a magistrate judge's
proposed finding and recommendations within 14 days after
being served a copy” of the Report and Recommendation.
A party may respond to those objections within 14 days after
being served a copy of the objections. See Local
Rule ...