Linder v. Drug Enforcement Agency

          ORDER

          David G. Campbell Senior United States District Judge.

         On February 16, 2018, Plaintiff David W. Linder, who is confined in the Federal Correctional Institution-Pekin in Pekin, Illinois, filed a Complaint and an “Affidavit Accompanying Motion for Permission to Appeal In Forma Pauperis.” In a February 27, 2018 Order, the Court denied the Motion for Permission and dismissed the Complaint because neither the Motion nor Complaint was filed on a court-approved form, as required by Local Rule of Civil Procedure 3.4. The Court gave Plaintiff 30 days to (1) either pay the filing and administrative fees or file a complete Application to Proceed In Forma Pauperis, and (2) file a first amended complaint on a court-approved form.

         On March 26, 2018, Plaintiff paid the filing and administrative fees and filed an Affidavit in Support, a Request for Judicial Notice, and a First Amended Complaint. On April 11, 2018, he filed an Appendix. On April 30, 2018, Plaintiff filed a Motion for Order for Service by Marshal. . . . .

         In a June 18, 2018 Order, the Court dismissed the First Amended Complaint for failure to state a claim, gave Plaintiff 30 days to file a second amended complaint that cures the deficiencies identified in the Order, and denied without prejudice the Request for Judicial Notice and Motion for Order for Service by Marshal. That same day, Plaintiff filed a “Motion for Extension of Time Pursuant to Fed R Civ P 4(m), ” which the Court denied as premature in a July 3, 2018 Order.

         On July 23, 2018, Plaintiff filed his Second Amended Complaint. In a September 18, 2018 Order, the Court dismissed the Second Amended Complaint because Plaintiff had failed to comply with Rule 8 of the Federal Rules of Civil Procedure. The Court gave Plaintiff 30 days to file a third amended complaint that cured the deficiencies identified in the Order. In an October 31, 2018 Order, the Court denied Plaintiff's “Request for (5) Day Extension, but granted Plaintiff a 30-day extension of time to file his third amended complaint.

         On November 1, 2018, Plaintiff filed his Third Amended Complaint (Doc. 20). The Court will dismiss the Third Amended Complaint and this action.

         I. Statutory Screening of Prisoner Complaints

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2).

         A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

         “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other “more likely explanations” for a defendant's conduct. Id. at 681.

         But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards than formal pleadings drafted by lawyers.'” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

         II. Third Amended Complaint

         In his three-count Third Amended Complaint, Plaintiff asserts that the Court has jurisdiction over his claims under the Federal Tort Claims Act (FTCA). He seeks monetary damages from Defendants United States of America, Drug Enforcement Agency Officers Justin Schoeman and Timothy Jenkins, former Assistant United States Attorney Laura Pelatiro Tayman, and “NCIS” Officer Robert D. Cully, Jr.

         In Count One, Plaintiff asserts that there was a “conversion” of his automobile. He claims that in December 2003, his automobile was taken “without probable cause of any crime.” He claims no arrest was made, no contraband was discovered, and the vehicle had been purchased with “untainted funds.” He ...