United States District Court, D. Montana, Missoula Division
MORRIS UNITED STATES DISTRICT COURT JUDGE.
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).
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).
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.
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.
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).
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.
Claims Against United States Marshals
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
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).
Claims Against the John Doe Defendants
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
Claims Against Deputy Strommen
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 ...