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Moyo v. United States

United States District Court, Fourth Circuit

June 6, 2013

NDABEZINHLE MOYO, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant

MEMORANDUM

Ellen Lipton Hollander United States District Judge

Ndabezinhle Moyo, the self-represented plaintiff, sued the United States Department of Health and Human Services (“HHS”), seeking relief for wrongs allegedly committed against him by federal agents in connection with his ownership of rental property in Baltimore, Maryland. Subsequently, the United States filed a motion to substitute itself as the defendant, in place of HHS, pursuant to the Federal Tort Claims Act (“FTCA”), [1] and to dismiss the suit for lack of subject matter jurisdiction. See Motion to Dismiss (ECF 7). In a Memorandum Opinion and Order issued on February 26, 2013 (ECF 17 & 18), I granted the United States’ Motion to Dismiss, in part. In particular, I substituted the United States as the sole defendant, and dismissed the suit for lack of subject matter jurisdiction to the extent that it sounded in defamation, pursuant to 28 U.S.C. § 2680(h) (preserving the United States’ sovereign immunity as to defamation claims, despite FTCA’s general waiver of sovereign immunity in tort).

The United States had also sought dismissal of the entire suit for failure to comply with the notice requirement of the FTCA, which imposes a requirement to present a tort claim to the “appropriate Federal agency” and for that agency to “finally den[y]” it, as a jurisdictional precondition to suit. 28 U.S.C. § 2675(a). However, I denied the government’s Motion to Dismiss on this ground because plaintiff had presented unrebutted evidence tending to show that he had provided notice of his claim to a federal agency and that the claim had been denied, although the record did not contain the actual notice plaintiff had provided; it only contained the agency’s response. On this basis, it was not clear whether plaintiff’s notice satisfied the FTCA’s jurisdictional requirements. Nevertheless, I directed plaintiff to show cause why his claims should not be dismissed for failure to state a claim upon which relief could be granted, because his complaint and information he submitted seemed to indicate that the alleged wrongs for which he sought redress had been performed by agents of a Maryland state agency, the Maryland Department of the Environment (“MDE”), and not by any federal agency.

Plaintiff’s time to show cause why his suit should not be dismissed was extended until May 28, 2013, see ECF 20, but he has not filed a response to the Court’s show cause order. Moreover, on April 2, 2013, the United States filed a Motion for Reconsideration (ECF 21), providing additional evidence in support of its argument that the Court lacks subject matter jurisdiction because plaintiff failed to satisfy the FTCA notice requirement. Plaintiff has not responded to the Motion for Reconsideration, and the time for him to do so has expired. See Local Rule 105.2(a); Fed.R.Civ.P. 6(a), (d).

No hearing is necessary to resolve the matters now pending. See Local Rule 105.6. For the reasons that follow, I will grant the Motion for Reconsideration and will dismiss the suit for lack of subject matter jurisdiction. In the alternative, dismissal is warranted based on plaintiff’s failure to show cause why his complaint should not be dismissed for failure to state a claim for relief.

Background

The factual background of plaintiff’s suit was discussed in my earlier Memorandum Opinion and need not be recapitulated here. Suffice it to say that plaintiff’s complaint (ECF 1) does not clearly articulate a legal claim. But, affording it the liberal construction to which the pleadings of self-represented litigants are entitled, it appears to allege that agents of the federal Environmental Protection Agency (“EPA”) wrongfully harmed the plaintiff in his rental property business by encouraging his tenants to withhold rent due to supposed violations of lead paint regulations at plaintiff’s rental properties, despite plaintiff’s claim that his properties were in full compliance with all lead paint requirements and other rental housing regulations. It is unclear why plaintiff initially sued HHS, which is not mentioned anywhere in his complaint. Moreover, additional documentation submitted by plaintiff seemed clearly to indicate that the environmental regulatory enforcement activity of which plaintiff complained had actually been conducted by MDE, and not by any instrumentality of the federal government.

In response to the government’s earlier Motion to Dismiss, which asserted that HHS had not received any pre-suit notice of plaintiff’s claims as required by the FTCA, plaintiff submitted two letters sent to him from the United States Department of Justice (“DOJ”). The first letter, dated April 21, 2011, acknowledged DOJ’s receipt from plaintiff of an “administrative tort claim dated March 25, 2011.” ECF 11-2 at 1. The second letter, dated January 24, 2012, stated that plaintiff’s claim was denied. See ECF 11-2 at 2. The second letter referred to plaintiff’s claim as having been submitted on February 15, 2011, although the first letter had referred to a claim submitted on March 25, 2011; the record does not contain an explanation for this discrepancy.

In any event, the United States did not file a reply to plaintiff’s response, so as to clarify the nature of the claim that plaintiff had submitted in early 2011 and whether it satisfied the FTCA’s notice requirement. I stated that “plaintiff has not submitted a copy of the actual claim that he submitted to DOJ, nor does either letter from DOJ disclose the precise nature of plaintiff’s claim, ” and so I could not “determine whether the claim submitted by plaintiff encompassed the allegations on which he now seeks to sue, or whether his claim was otherwise sufficient.” ECF 17 at 9. Accordingly, I ruled: “In the absence of a reply from the government clarifying the issue of FTCA notice in light of the letters to plaintiff from DOJ, I cannot conclude that plaintiff failed to administratively exhaust his claim.” Id. at 11.

The government has now submitted a copy of plaintiff’s administrative tort claim dated March 25, 2011, submitted to DOJ using the optional Standard Form 95 with an accompanying letter. The letter contains many vague and bizarre allegations of a variety of apparently unconnected wrongdoing against plaintiff by several agencies of the federal government. The only portions of the letter that seem to pertain to plaintiff’s property rental business are as follows, ECF 21-2 at 6-7:

Agencies like the EPA came after me like a witch hunt [and] harassed my tenants to default and jump ship.
As for Department of Defense employee so called soldiers allowed to come back from war and feel the right not to pay their rent, destroy property and local police let them go because of having a military Id. Sadly these soldiers will come and be the cause [sic] the USA to self implode from the power, respect, honor they are glorifying till they do not get their way and become the Timothy McVeigh’s [sic].
The HUD, division of the section 8 legal team fraudulently heed evidence of tenants records of payment and persuaded previous landlord to be ...

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