United States District Court, E.D. Texas, Sherman Division
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
L. MAZZANT & UNITED STATES DISTRICT JUDGE.
for consideration the report of the United States Magistrate
Judge in this action, this matter having been heretofore
referred to the Magistrate Judge pursuant to 28 U.S.C. §
636. On August 2, 2019, the report of the Magistrate Judge
(Dkt. #14) was entered containing proposed findings of fact
and recommendations that Defendant United States' Motion
to Dismiss (Dkt. #11) be granted. Having received the report
of the Magistrate Judge, having considered Plaintiff's
Objections (Dkts. #15; #19), and having conducted a de novo
review, the Court is of the opinion that the Magistrate
Judge's report should be adopted.
was previously convicted by a jury on two counts of tax
evasion in 2006. United States v. James Van Meter,
No. 4:06-CR-00066-001 (E.D. Tex. Sept. 22, 2006).
Plaintiff's conviction was affirmed by the Fifth Circuit
in 2008. United States v. Van Meter, 280 Fed.Appx.
394 (5th Cir. 2008). More than a decade later, Plaintiff
filed the instant action against Shamoil Shipchandler-the
federal prosecutor in Plaintiff's criminal suit (Dkt.
#1). Plaintiff alleges that Shipchandler maliciously
prosecuted Plaintiff's criminal case, in violation of the
Federal Tort Claims Act (“FTCA”). After
substituting as the proper defendant in the case, the United
States moved to dismiss Plaintiff's FTCA claim for lack
of jurisdiction (Dkt. #11). The United States argued, in
pertinent part, that the Court lacks subject-matter
jurisdiction over the instant matter because Plaintiff failed
to exhaust his administrative remedies and because the United
States has not waived its sovereign immunity. On August 2,
2019, the Magistrate Judge recommended that Defendant's
Motion to Dismiss be granted for lack of jurisdiction (Dkt.
#14). Specifically, the Magistrate Judge's report agreed
that Plaintiff did not properly exhaust his administrative
remedies, and that, even if he had, Plaintiff's claims
would still be barred by sovereign immunity, and lastly, that
as the party asserting jurisdiction, Plaintiff bore the
burden to establish that his administrative remedies were
TO REPORT AND RECOMMENDATION
who files timely written objections to a magistrate
judge's report and recommendation is entitled to a de
novo review of those findings or recommendations to which the
party specifically objects. 28 U.S.C. § 636(b)(1)(C);
Fed.R.Civ.P. 72(b)(2)-(3). On August 19, 2019, Plaintiff
filed his “Order for Non-Response of Jurisdictional
Issues and Release of Any/All Property Demand for
Ruling” which the Court construes as objections to the
Magistrate Judge's report (Dkt. #15). On September 18,
2019, Plaintiff further filed his “Claimant's
Response to United States Motion to Dismiss and Request for
Article III Court” (Dkt. #19). In his filings,
Plaintiff maintains the Court's jurisdiction is proper,
and further asserts that he has properly demonstrated
exhaustion and that no immunity exists here.
initial matter, the burden to establish exhaustion of
remedies falls upon Plaintiff, not the United States. See
Frost v. Young, No. 2:12-cv-1985, 2012 WL 6043031, at *8
(W.D. La. Dec. 3, 2012). The Court agrees with the Magistrate
Judge that Plaintiff has not carried that burden. To properly
invoke the Court's jurisdiction under the FTCA, Plaintiff
must comply with 28 U.S.C. § 2675(a). See Price v.
United States, 69 F.3d 46, 54 (5th Cir. 1995); 28 U.S.C.
§ 2675(a). There is no record of an administrative claim
being presented by Plaintiff within two years of his
claim's accrual; rather, Plaintiff relies on letters he
alleges were sent both to United States District Judge
Richard A. Schell and Shamoil Shipchandler in May 2018 (Dkt.
#1-2)- nearly ten years after the affirmance of his
conviction. These letters do not satisfy the requirements of
§ 2675 (Dkt. #1-2). “[Al]though the requirements
of § 2675 are minimal, an FTCA claimant must nonetheless
provide facts sufficient to allow his claim to be
investigated and must do so in a timely manner.”
Cook v. U.S. on Behalf of U.S. Dep't of Labor,
978 F.2d 164, 166 (5th Cir. 1992). Here, even if as Plaintiff
claims, his cited valuation of “$25, 000.00 PER 23
MINUTES PERIOD, I.E. $65, 217.91 PER HOUR, PLUS PUNITIVE
DAMAGES IN AMOUNT DECIDED SOLELY BY SECURED PARTY S HEIRS OR
ASSIGNS” was sufficiently detailed to put Defendant on
notice,  it is only one of two requirements of
§ 2675. “A tort claim against the United States
must be presented to the appropriate federal agency within
two years after the claim accrues or it is forever
barred.” Williams v. United States, 693 F.2d
555, 557 (5th Cir. 1982) (citing 28 U.S.C. §
2401(b)). It is undeniable that neither
Plaintiff's referenced letters, nor any of
Plaintiff's other attachments to his January 2019
Complaint satisfy § 2675. As such Plaintiff has not
exhausted his administrative remedies.
also makes various arguments regarding the alleged waiver of
immunity by Defendant United States, namely that “[a]ny
claim of ‘immunity' is a fraud, ” and that
the United States is in fact a corporation and therefore not
entitled to sovereign immunity (Dkt. #19). The United States
government is immune from suit absent an express waiver of
its sovereign immunity by federal statute. See In re FEMA
Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281,
287 (5th Cir. 2001). The FTCA is an explicit waiver of such
immunity “for tort claims against the United States [or
its agencies.]” Willoughby v. United States ex rel.
United States Dep't of the Army, 730 F.3d 476, 479
(5th Cir. 2013). However, the FTCA expressly excludes from
its waiver of sovereign immunity any claim for malicious
prosecution. Partain v. Isgur, 390 Fed.Appx. 326,
328 (5th Cir. 2010). Moreover, “the FTCA [is] the
exclusive mode of recovery for the tort of a Government
employee even when the FTCA itself precludes Government
liability.” United States v. Smith, 499 U.S.
160, 166 (1991). Because the FTCA is Plaintiffs exclusive
remedy for tort claims against Defendant and claims for
malicious prosecution are expressly excluded from the FTCA,
Plaintiff s claims in addition to being unexhausted would be
barred by sovereign immunity. For these reasons, Plaintiffs
Objections are overruled.
considered Plaintiffs Objections (Dkts. #15, #19), and having
conducted a de novo review, the Court adopts the Magistrate
Judge's report (Dkt. #14) as the findings and conclusions
of the Court.
therefore, ORDERED that Defendant United
States' Motion to Dismiss (Dkt. #11) is
GRANTED and Plaintiffs claims are dismissed
IS SO ORDERED.