United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS, UNITED STATES MAGISTRATE JUDGE
incarcerated at Federal Correctional Institution in
Bennettsville, South Carolina, is proceeding pro se and in
forma pauperis (“IFP”). Because he is proceeding
IFP, Plaintiff's complaint must be screened to protect
potential defendants. Phillips v. Mashburn, 746 F.2d
782, 785 (11th Cir. 1984); Al-Amin v. Donald, 165
Fed.Appx. 733, 736 (11th Cir. 2006).
SCREENING OF THE COMPLAINT
names as Defendant the United States of America. (Doc. no. 1,
p. 1.) Taking all of Plaintiff's factual allegations as
true, as the Court must for purposes of the present
screening, the facts are as follows.
March 22, 2016, Plaintiff, a federal prisoner, was being
transported by Irwin County Detention Center
(“ICDC”) officers from Mecklenburg County Jail to
a holding facility in Irwin County, Georgia, pursuant to the
terms of an Intergovernmental Service Agreement with the
United States Marshal Service (“USMS”) to
transport federal detainees from facility to facility.
(Id. at 2-4.) During the trip, the van stopped at a
local county jail in Jefferson County, Georgia.
(Id.) Transport officers told Plaintiff to exit the
van. (Id.) Plaintiff told the officers he could not
because of leg cramps. (Id.) Officers still demanded
Plaintiff exit the van. (Id.) As he attempted to
exit the van, Plaintiff fell and hit his face on the
concrete, which caused his tooth to break and become lodged
in his bottom lip. (Id.) An officer moved out of the
way and allowed Plaintiff to fall without any assistance.
(Id.) The officer later stated, “we're
going to have to pay for that.” (Id.) While at
Jefferson County Hospital for treatment, unspecified officers
represented themselves as United States Marshals.
(Id. at 4.) Plaintiff did not receive follow up
treatment. (Id. at 2.) Plaintiff requests $80, 000
in compensatory damages. (Id. at 4.)
Legal Standard for Screening
complaint or any portion thereof may be dismissed if it is
frivolous, malicious, or fails to state a claim upon which
relief may be granted, or if it seeks monetary relief from a
defendant who is immune to such relief. See 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b). A claim is frivolous
if it “lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 327
(1989). “Failure to state a claim under §
1915(e)(2)(B)(ii) is governed by the same standard as
dismissal for failure to state a claim under Fed.R.Civ.P.
12(b)(6).” Wilkerson v. H & S, Inc., 366
Fed.Appx. 49, 51 (11th Cir. 2010) (per curiam) (citing
Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir.
avoid dismissal for failure to state a claim upon which
relief can be granted, the allegations in the complaint must
“state a claim for 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). That is,
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.”
Twombly, 550 U.S. at 555. While Rule 8(a) of the
Federal Rules of Civil Procedure does not require detailed
factual allegations, “it demands more than an
unadorned, the defendant unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678. A
complaint is insufficient if it “offers ‘labels
and conclusions' or ‘a formulaic recitation of the
elements of a cause of action, '” or if it
“tenders ‘naked assertions' devoid of
‘further factual enhancement.'” Id.
(quoting Twombly, 550 U.S. at 555, 557). In short,
the complaint must provide a “‘plain
statement' possess[ing] enough heft to ‘sho[w] that
the pleader is entitled to relief.'”
Twombly, 550 U.S. at 557 (quoting Fed.R.Civ.P.
the court affords a liberal construction to a pro se
litigant's pleadings, holding them to a more lenient
standard than those drafted by an attorney. Haines v.
Kerner, 404 U.S. 519, 520 (1972) (per curiam);
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). However, this liberal construction does not mean
that the court has a duty to re-write the complaint. Snow
v. DirecTV, Inc., 450 F.3d 1314, 1320 (11th Cir. 2006).
The Court Lacks Subject Matter Jurisdiction of
Plaintiff's FTCA Claim for Negligence
Federal Tort Claims Act (“FTCA”) is a limited
waiver of the federal government's sovereign immunity
that permits private parties to bring suit in federal court
against the United States for injuries “caused by the
negligent or wrongful act or omission of any employee of the
Government.” 28 U.S.C. § 1346(b)(1); see also 28
U.S.C. § 2674; Ali v. Fed. Bureau of Prisons,
552 U.S. 214, 217-18 (2005) (“In the FTCA, Congress
waived the United States' sovereign immunity for claims
arising out of torts committed by federal employees.”).
Courts use the control test to determine whether the
tortfeasor is an “employee of the government” by
examining the degree of physical control the government
exercised over the tortfeasor. See Logue v. United
States, 412 U.S. 521, 528 (1973) (holding control test
applies to FTCA's independent contractor exception).
“An individual cannot be an employee of the government
under the FTCA absent governmental authority to supervise or
control that person's daily activities.” Means
v. United States, 176 F.3d 1376, 1379-80 (11th Cir.
the FTCA, government employees are defined as including
officers and employees of any federal agency but excludes
“any contractor with the United States.”
28 U.S.C. § 2671; see United States v. Orleans,425 U.S. 807, 813-14 (1976) (describing scope of FTCA
claims). In applying the independent contractor exception to
the waiver of immunity, “a critical element in
distinguishing an agency from a contractor is the power of
the Federal Government ‘to control the detailed
physical performance of the contractor.'” Orleans,
425 U.S. at 14 (quoting Logue, 412 U.S. at 528); see
also Lipsey v. United States,879 F.3d 249, 253-54
(7th Cir. 2018) (finding county jail was immune from
liability under independent contractor exception where county
jail had intergovernmental agreement with USMS providing
medical care). The independent contractor exception