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Jackson v. United States Customs and Border Protection

United States District Court, E.D. Michigan, Southern Division

January 31, 2018

DUBOIS L. JACKSON, Plaintiff,
v.
UNITED STATES CUSTOMS AND BORDER PROTECTION, et al. Defendants.

          Hon. Elizabeth A. Stafford, Judge.

          ORDER ADOPTING REPORT AND RECOMMENDATION (DKT. 22), GRANTING DEFENDANTS' MOTION TO DISMISS (DKT. 13)

          TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         Plaintiff Dubois L. Jackson (“Plaintiff”), acting in pro per filed this lawsuit against United States Border Protection, United States Office of Border Patrol as well as the U.S. Attorney General and the Commissioner of U.S. Customers and Border Patrol (USCBP) in their official capacities. Dkt. 1.

         This matter is before the Court on Magistrate Judge Elizabeth A. Stafford's December 5, 2017 Report and Recommendation (“R&R”), Dkt. 22, which recommends that Defendants' Motion to Dismiss, Dkt. 13, be granted, and all of Plaintiff's claims be dismissed.

         Plaintiff filed a single, timely objection to the R&R on December 19, 2017. Dkt. 23. Defendants filed a timely response to that objection on December 22, 2017. Dkt. 24.

         For the reasons discussed below the Court will ADOPT the holding of the Magistrate Judge's Report and Recommendation with the noted modifications.

         BACKGROUND

         The relevant facts about the underlying incident in this case are summarized in the Magistrate Judge's R&R. Dkt. 22, Pg. IDs 187-89. Those facts are adopted for purposes of this order.

         In quick summary, Plaintiff is challenging a search that USCBP agents conducted of him at the fixed border checkpoint in Detroit in August 2013. Dkt. 1 at Pg ID 198-99. After that search, Plaintiff submitted an SF-95-the form through which individuals can present claims against agencies under the Federal Tort Claims Act (FTCA) 28 U.S.C. §2671 et seq.-to the USCBP office in Detroit. Dkt. 13-2. Plaintiff states that he submitted his first SF-95 to USCBP on or around July 14, 2014, and did not receive any response. Dkt. 1 at Pg ID 9. Defendants respond in their Motion to Dismiss that Plaintiff filed an SF-95 with the agency on July 14, 2015, and that the agency responded with a denial letter on February 23, 2016. Dkt. 13 at Pg. ID 74. Defendants also submitted a copy of Plaintiff's July 14, 2015 SF-95 with their motion, in which Plaintiff requested $1, 000, 000 in damages. Dkt. 13-2.

         Parties agree that Defendants' first denial letter on February 23, 2016 was not an effective denial of Plaintiff's FTCA claims because Defendants sent it to the wrong address. Dkt. 24 at Pg ID 218; Dkt. 13 at Pg ID 74. Defendants sent a second denial letter by certified mail on March 9, 2016 to the correct PO Box address listed on Plaintiff's SF-95, which was delivered to the PO Box, but never picked up, and thus returned undelivered. Dkt. 13 at Pg ID 74.

         Plaintiff called the agency in May 2016 and stated he had not yet received a response to his July 14, 2015 SF-95. Dkt. 1 at Pg ID 9. Defendants state they told Plaintiff they would mail him a third copy of the denial letter, and did so, as a courtesy, by certified mail on May 2, 2016 to the same PO Box where the March 9, 2016 letter had been sent. Dkt. 13 at Pg ID 74. Plaintiff acknowledges receiving this May 2, 2016 denial letter on June 10, 2016. Dkt. 1 at Pg ID 9.

         Plaintiff filed this Complaint on November 26, 2016 against the USCBP, the U.S. Office of Border Patrol, Loretta Lynch in her official capacity as the United States Attorney General, and R. Gil Kerlikowske in his official capacity as the Commissioner of USCBP. Dkt. 1. In the Complaint, Plaintiff claims Defendants violated his Fourth Amendment rights by unlawfully searching and seizing him during the checkpoint stop, and his Fifth Amendment rights by placing him on a federal watch list after that search without affording him any sort of process. Dkt. 1 at Pg ID 11. Plaintiff also references claims under the FTCA against USCBP for false imprisonment, false arrest, assault, and battery. Dkt. 1 at Pg ID 10.

         On April 10, 2017, Defendants filed their Motion to Dismiss arguing that the Court should: 1) dismiss Plaintiff's constitutional claims because they were barred by sovereign immunity; 2) dismiss Plaintiff's FTCA claims for failure to state cognizable claims under the statute, and because any such claims-even if properly pleaded-are time-barred. Dkt. 13 at Pg ID 63, 68, 73.

         On December 5, 2017 the Magistrate Judge issued her R&R recommending: 1) dismissal of Plaintiff's constitutional claims against the federal government and federal government officials which are barred by sovereign immunity[1]; 2) dismissal ...


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