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Gosnell v. Strommen

United States District Court, D. Montana, Missoula Division

June 21, 2017

DOUGLAS JAMES GOSNELL, Plaintiff,
v.
CHRIS STROMMEN, FOUR UNKNOWN MISSOULA COUNTY JAIL EMPLOYEES, MARSHALS SERVICE, OFFICIAL CAPACITY, Defendants.

          ORDER

          BRIAN MORRIS UNITED STATES DISTRICT COURT JUDGE.

         Plaintiff Douglas Gosnell (Gosnell) is a federal prisoner proceeding pro se. Gosnell filed an Amended Complaint on May 2, 2016. The named defendants are: the United States Marshals Service; Deputy United States Marshal Chris Strommen (Deputy Strommen); and four unknown John Doe Missoula County jail employees. (Doc. 18 at 1).

         Gosnell alleges unlawful activities by the Defendants on three separate occasions. Gosnell alleges that the John Doe defendants assaulted him at the Missoula County Detention Facility (MCDF) on August 10, 2015, while he was incarcerated there. (Doc. 18 at 5-6). Gosnell alleges that he suffered injuries and broken eye glasses during the assault. Id. Second, Gosnell alleges that one of the John Doe defendants punched him in the eye on December 5, 2015. (Doc. 18 at 6). Third, Gosnell alleges that while being transported to MCDF “on or about 2016, ” the United States Marshals Service lost his wheelchair and the United States Marshals Service and Deputy Strommen lost his legal papers. (Doc. 18 at 7).

         Gosnell asserts a claim against the United States Marshals Service under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-80, based on the loss of his wheelchair and legal papers. Gosnell asserts claims against the John Doe defendants under 42 U.S.C. § 1983. Gosnell alleges the John Does defendants violated his constitutional rights under the Fourteenth Amendment to the United States Constitution by using excessive force against him on August 10, 2015, and on December 5, 2015. Gosnell asserts claims against Deputy Strommen under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Gosnell alleges that Deputy Strommen violated his rights under the First, Fifth and Fourteenth Amendments to the United States Constitution by losing his legal papers on or about 2016, and by failing to action to protect him from the assaults by the John Doe defendants on August 10, 2015, and December 5, 2015.

         Judge Lynch conducted a preliminary screening of the Amended Complaint to determine whether any portion of the Amended Complaint was frivolous or failed to state a claim upon which relief may be granted. Judge Lynch entered Findings and Recommendations in this matter on December 21, 2016. (Doc. 19).

         Judge Lynch recommended that this Court dismiss all of the claims against the United States Marshals Service because Gosnell had failed to exhaust his administrative remedies as required under 28 U.S.C. § 2675(a). (Doc. 19 at 16). Judge Lynch recommended that this Court dismiss all of the claims against the John Doe defendants without prejudice, subject to the condition that Gosnell may re-file the claims should he discover the identities of the John Doe defendants in the future. Judge Lynch further recommended that this Court dismiss all of the claims against Deputy Strommen for failure to state a claim, except for one of the Fifth Amendment “failure to protect” claims. (Doc. 19 at 16).

         Gosnell filed objections to Judge Lynch's Findings and Recommendations on January 3, 2017. (Doc. 20). The Court reviews de novo findings and recommendations to which objections are made. 28 U.S.C. § 636(b)(1). The Court has reviewed de novo Judge Lynch's Findings and Recommendations. The Court finds no error in Judge Lynch's Findings and Recommendations, and adopts them in full.

         A. Claims Against United States Marshals Service

         Gosnell asserts claims against the United States Marshals Service under the FTCA. A claimant must exhaust his administrative remedies before filing a FTCA claim against the United States. See Jerves v. United States, 966 F.2d 517, 518-19 (9th Cir. 1992). The claim must be presented to the appropriate federal agency, and the claim must be denied by the agency. 28 U.S.C. § 2675(a). This administrative exhaustion requirement is jurisdictional. Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000). The exhaustion requirement “must be strictly adhered to.” Id.

         Judge Lynch informed Gosnell on April 6, 2016, that his original Complaint was inadequate because he had failed to allege compliance with the FTCA's exhaustion requirement. (Doc. 17 at 3). Judge Lynch gave Gosnell an opportunity to cure the deficiency in his Complaint by filing an Amended Complaint. (Doc. 17 at 9). Gosnell's Amended Complaint did not cure the deficiency described by Judge Lynch. The Amended Complaint provides no indication that Gosnell has complied with the exhaustion requirements of the FTCA. This Court therefore lacks jurisdiction over Gosnell's claim against the United States Marshals Service. Gosnell's claims against the United States Marshals Service will be dismissed for failure to exhaust administrative remedies under 28 U.S.C. § 2675(a).

         B. Claims Against the John Doe Defendants

         Gosnell's Amended Complaint, construed liberally, asserts a Fourteenth Amendment excessive use of force claim against the John Doe defendants based upon the assaults that allegedly occurred on August 10, 2015, and on December 5, 2015, at MCDF. The use of John Doe defendants is generally not favored in federal court. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). The claims against the John Doe defendants will be dismissed without prejudice. Gosnell will be afforded an opportunity, however, to identify the unknown defendants through discovery. Id. Should Gosnell learn the identities of the John Doe defendants in the future, he may file a Second Amended Complaint to add the identified persons as defendants.

         C. Claims Against Deputy Strommen

         Gosnell asserts the following claims against Deputy Strommen: 1) a First Amendment denial of access to court claim; 2) a Fifth Amendment denial of procedural due process claim; 3) a Fourteenth Amendment equal ...


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