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`**NOT FOR PRINTED PUBLICATION**
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`No. 4:15CV71-RC-CMC
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`CHARLES J. PATERNOSTRO
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`V.
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`JOE L. CUSTER, ET AL.
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`ORDER ADOPTING REPORT AND RECOMMENDATION
`OF UNITED STATES MAGISTRATE JUDGE
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`On February 16, 2016, the United States Magistrate Judge issued a Report and
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`Recommendation [Doc. #49], this matter having been referred to the United States Magistrate
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`Judge pursuant to 28 U.S.C. § 636. The Magistrate Judge recommended Defendants’ Motion to
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`Dismiss for Lack of Subject-Matter Jurisdiction, for Failure to State a Claim, and for Insufficient
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`Service of Process be granted and that Plaintiff’s claims against Defendants be dismissed with
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`prejudice.
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`BACKGROUND
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`This case involves the summary removal of an unpermitted dock and boathouse off of
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`Lake Texoma on February 4, 2013 by the United States Army Corps of Engineers (“Corps”). On
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`January 30, 2016, Charles J. Paternostro (“Plaintiff”), an attorney representing himself, filed this
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`takings case against four Corps employees: (1) Lake Texoma Manager Joe L. Custer; (2) District
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`Engineer of the Tulsa District Colonel Michael Teague; (3) Division Engineer for the
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`Southwestern Division Brigadier General Thomas Kula; and (4) Retired Deputy Chief of
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`Engineers Major General Meredith W. B. (Bo) Temple (collectively “Defendants”). Plaintiff
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`alleges the taking of his dock and boathouse was without just compensation, and he seeks
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`1
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`Case 4:15-cv-00071-RC-CMC Document 55 Filed 03/17/16 Page 2 of 12 PageID #: 419
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`damages under the Fifth Amendment of the U.S. Constitution. Plaintiff also claims a violation of
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`the Fourteenth Amendment, asserting his property was taken without due process and without his
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`having had his “day in court or exercising his right to a trial by jury of his peers.” (Doc. No. 1 at
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`4, ¶11). Plaintiff also asserts malicious prosecution against Defendant Custer. Id. at ¶¶ 37-40.
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`Defendants moved to dismiss Plaintiff’s case for lack of subject matter jurisdiction, for
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`failure to state a claim, and for insufficient service of process. In their motion, Defendants raised
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`four arguments, two of which relate to Plaintiff’s takings claim and two of which relate to
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`Plaintiff’s malicious prosecution claim against Custer. Regarding the takings claim, Defendants
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`first asserted Plaintiff has an adequate remedy to pursue the claim in the Court of Federal Claims
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`against the government itself, making this individual-capacity “Bivens” suit against Corps
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`employees inappropriate. Defendants further submitted Plaintiff has failed to state a
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`constitutional takings claim, and if so, any claim is time-barred.
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`Regarding the malicious prosecution claim against Custer, Defendants asserted it is not a
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`valid claim and is time-barred. Defendants further argued Plaintiff’s common-law claim for
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`malicious prosecution against Custer — which is really a claim against the United States — is
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`barred by sovereign immunity.
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`THE REPORT AND RECOMMENDATION
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`In her 26-page Report and Recommendation,
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`the Magistrate Judge provided
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`approximately nine pages of factual background before considering the various ways a federal
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`takings claim may be filed. As stated by the learned Magistrate Judge, there is no question
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`Plaintiff brought his takings claim against the individual defendants under Bivens v.Six
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`Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The
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`Magistrate Judge concluded no Bivens claim is available and recommended that Plaintiff’s
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`2
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`Case 4:15-cv-00071-RC-CMC Document 55 Filed 03/17/16 Page 3 of 12 PageID #: 420
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`Bivens claims against Defendants be dismissed with prejudice. However, to the extent any
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`claims asserted by Plaintiff would fall within the Tucker Act, the Magistrate Judge noted they
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`should have been filed in the United States Court of Federal Claims (“Federal Claims Court”)
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`and recommended those claims be dismissed without prejudice.
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`The Magistrate Judge then considered Plaintiff’s request that he be allowed to amend, in
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`lieu of outright dismissal, in the event the Court finds his complaint cannot be maintained as a
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`Bivens cause of action. The Magistrate Judge concluded that even without invoking Bivens,
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`Plaintiff’s takings claim under the Fifth Amendment fails because the facts alleged in Plaintiff’s
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`complaint, taken as true, do not establish a taking as a matter of law.1
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`Specifically, the Magistrate Judge noted Plaintiff does not allege in his complaint that the
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`removal of his boathouse and dock was for public use. However, according to the Magistrate
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`Judge, even if the complaint’s well-pled facts did give rise to a plausible inference that the
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`alleged “taking” of Plaintiff’s property was for “public use,” that inference alone would not
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`entitle Plaintiff to relief, especially considering Defendants’ assertion that Plaintiff does not have
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`a legitimate claim of entitlement to the permit for the removed boathouse and dock. (Doc. No.
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`49 at 18-19). The Magistrate Judge further noted Custer was the only defendant alleged to have
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`been involved with the physical removal of the boathouse and dock; thus, any takings claim
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`against defendants Teague, Kula, and Temple should be dismissed for the additional reason that
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`Plaintiff had not alleged facts showing they were personally involving with any “taking.”
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`1 In a footnote, the Magistrate Judge noted Plaintiff also alleges a violation of his Constitutional
`rights under the Fourteenth Amendment. (Doc. No. 1 at 4, ¶ 11). Because the Fourteenth
`Amendment, by definition, requires state action, and Plaintiff alleges actions taken by federal
`actors, not state ones, the Magistrate Judge recommended any claims based on the Fourteenth
`Amendment be dismissed.
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`3
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`Case 4:15-cv-00071-RC-CMC Document 55 Filed 03/17/16 Page 4 of 12 PageID #: 421
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`Finally, the Magistrate Judge held Plaintiff’s complaint, which fails to allege facts stating
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`a plausible claim of an objectively unreasonable violation of clearly established law, should be
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`dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) based on qualified immunity.
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`According to the Magistrate Judge, Plaintiff has not met his burden of establishing Defendants
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`violated his clearly established constitutional rights. Stated another way, the Magistrate Judge
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`found the allegations supporting Plaintiff’s takings claim under the Fifth Amendment are
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`insufficient to overcome Defendants’ entitlement to qualified immunity. The Magistrate Judge
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`further concluded amendment would be futile, as Plaintiff could not present a better case.
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`Regarding the malicious prosecution claim against Custer, arising out of Plaintiff’s
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`receipt of two notices requiring him to appear before Judge Bush for misdemeanor violations
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`related to his non-compliant boat dock, the Magistrate Judge first pointed out the trial before
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`Judge Bush and Judge Bush’s June 12, 2012 order finding Plaintiff not guilty both occurred more
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`than two years before Plaintiff filed this lawsuit on January 30, 2015. In his response to the
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`motion to dismiss, Plaintiff did not contest that a Bivens malicious prosecution claim is barred by
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`the two-year statute of limitations. Nor did he contest he has failed to state a constitutional
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`malicious prosecution claim as a matter of law.
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`Rather, Plaintiff attempted to assert a common law claim of malicious prosecution
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`against Custer. The Magistrate Judge found Plaintiff fails to state a plausible Fourth Amendment
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`claim against Custer as a matter of law; thus, any “common law civil tort” claim of malicious
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`prosecution would fail even if it was not barred by limitations. Specifically, the Magistrate
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`Judge stated Plaintiff does not allege he was restrained in his liberty other than being summoned
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`and having to appear in court. Having failed to allege any other deprivation of liberty in
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`4
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`Case 4:15-cv-00071-RC-CMC Document 55 Filed 03/17/16 Page 5 of 12 PageID #: 422
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`connection with his receipt of the summons, the Magistrate Judge concluded Plaintiff failed to
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`allege he was seized in violation of the Fourth Amendment.
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`Even if Plaintiff had a Bivens malicious prosecution claim, the Magistrate Judge stated
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`she would still need to address the additional and distinct question of whether Custer is entitled
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`to qualified immunity. According to the Magistrate Judge, under the facts of this case, Plaintiff
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`cannot meet the first prong of the qualified immunity analysis (violation of a clearly established
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`constitutional right). Relying in part on Evans v. Ball, 168 F.3d 856 (5th Cir. 1999), overruled
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`on other grounds by Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003), the Magistrate Judge
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`held Plaintiff cannot show that in March of 2012, when the citations were issued, it was clearly
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`established that the issuance of a notice to appear in court, alone, constituted a seizure of
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`constitutional significance.
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`Having recommended all of Plaintiff’s claims be dismissed, the Magistrate Judge did not
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`address Defendants’ argument that Plaintiff did not serve process correctly.
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`OBJECTIONS
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`On March 8, 2016, Plaintiff filed an Answer and Response to the Report and
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`Recommendation, which the Court construes as objections. (Doc. No. 53). After reiterating his
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`allegations, Plaintiff agrees the general rule is an individual has no legal right to a permit issued
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`by the government. Id. at 7. However, Plaintiff asserts the effect of the denial of the permit and
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`“grandfather” status for the boathouse and dock was “a loss of an overall economic value of the
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`owner’s house and land use which can be claimed to be a taking of private property without just
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`compensation.” Id. at 7-8. Plaintiff states he is justified in claiming a value of $100,000
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`property loss caused by Lake Manager Custer. Id. at 8.
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`5
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`Case 4:15-cv-00071-RC-CMC Document 55 Filed 03/17/16 Page 6 of 12 PageID #: 423
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`According to Plaintiff, the removed property need not actually be used by the public;
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`rather, it must be used or disposed of in such a manner as to benefit the public welfare or public
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`interest. Id. at 9. Plaintiff asserts the public use requirement only “requires that the government
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`rationally could have believed that its act would carry out the public purpose,” and the Corps
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`removed his dock and boathouse to eliminate some perceived public harm or danger. Id. at 11-
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`13.
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`Plaintiff contends the Corps used two federal regulations for the benefit of the public’s
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`health and safety, resulting in a “regulatory taking.” Id. According to Plaintiff, when the
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`government does not provide compensation to the property owner for the fair market value of the
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`property, there is a taking subject to Fifth Amendment protections. Id. at 11-12. Plaintiff also
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`relies on the affidavits he submitted from his friends stating that while the boathouse needed
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`repair, it was safe. Plaintiff states defendant Custer was aware the boathouse could be repaired,
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`but he forced Plaintiff off of the lake anyway, further evidencing “the intentional knowing
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`malicious conduct of Joe Custer.” Id. at 13-14. Finally, Plaintiff states he paid two welders
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`$500 to repair the substructure beneath the dock and boathouse (and he spent another $75 to
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`paint the repaired areas), and the Corps’ removal of the repaired structure amounted to a
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`wrongful taking. Id. at 14.
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`Plaintiff does not specifically object to any of the Magistrate Judge’s findings and
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`conclusions. According to Defendants, Plaintiff appears to “find no fault with them, conceding
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`on page 15 of his objections that he ‘cannot pursue’ Bivens claims against the individual
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`defendants he chose to sue in this case.” (Doc. No. 54 at 1) (quoting Doc. No. 53 at 15). Instead,
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`Plaintiff now seeks leave to amend to state a takings claim directly against the federal
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`government under the Tucker Act. (Doc. No. 53 at 15). According to Plaintiff, this amended
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`6
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`Case 4:15-cv-00071-RC-CMC Document 55 Filed 03/17/16 Page 7 of 12 PageID #: 424
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`complaint would be against the government, and he “will be eliminating all money claims
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`against the individual Defendants. . . .” Id.
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`DE NOVO REVIEW
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`Throughout the briefing on the motion to dismiss, Plaintiff made it abundantly clear he
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`seeks to hold Defendants liable for money damages in their individual capacities for alleged
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`constitutional violations pursuant to Bivens.2 In his response to Defendants’ motion to dismiss,
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`Plaintiff explicitly stated the “Tucker Act” was researched, but it excludes suits in which a claim
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`is based on a tort by the government. (Doc. No. 33 at 2). Plaintiff indicated he chose not to file
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`his takings claim under the Tucker Act or the Federal Tort Claims Act (“FTCA”).3 Having done
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`the research, Plaintiff did not want to be limited to only a claim for compensatory fair market
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`damages as would be the case if he had filed a claim against the government under the Tucker
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`Act for the removal of his boathouse and dock (Doc. No. 37 at 2).
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`Thus, the question before the Magistrate Judge was whether Plaintiff’s Bivens takings
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`claim against Defendants in their individual capacities was inappropriate in light of the Tucker
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`Act. In Bivens, the Supreme Court asserted its general remedial powers to imply a private cause
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`2 Plaintiff states he wanted the four defendants to be individually accountable in tort for their
`“intentional and malicious personal actions committed against [Plaintiff] personally,” and
`Plaintiff asserts the only way to bring such individual actions was through a Bivens cause of
`action showing “how each Corps member committed a separate action in tort against the
`Plaintiff.” (Doc. No. 33 at 2). According to Plaintiff, filing under the Tucker Act “limited
`Plaintiff’s full recovery for his damages and did not make the rightful parties accountable for the
`damages they intentionally and maliciously committed.” Id.
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`3 According to Plaintiff, the FTCA is less effective than a Bivens action as a deterrent to
`unconstitutional acts because punitive damages and a trial by jury are available in a Bivens
`suit. (Doc. No. 39 at 6). Therefore, Plaintiff chose to file a Bivens cause of action against each
`of the four defendants individually in tort rather than against the government under the FTCA.
`(Doc. No. 37 at 2).
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`7
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`Case 4:15-cv-00071-RC-CMC Document 55 Filed 03/17/16 Page 8 of 12 PageID #: 425
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`of action for damages against federal employees who violate a plaintiff’s constitutional rights
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`while acting under color of federal law. Wilkie v. Robinson, 551 U.S. 537, 549-50 (2007).
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`However, as noted by the Magistrate Judge, a Bivens remedy is not available for every alleged
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`constitutional violation by a federal employee. To imply a Bivens remedy, the court must first
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`decide “whether any alternative, existing process for protecting the interest amounts to a
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`convincing reason for the Judicial Branch to refrain from providing a new and freestanding
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`remedy in damages.” Id. at 550.
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`In their motion to dismiss, Defendants argued the Court lacked subject matter jurisdiction
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`over Plaintiff’s Bivens case against them in their individual capacities. According to Defendants,
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`the Court cannot imply a Bivens remedy for Plaintiff’s takings claim because Plaintiff has an
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`express cause of action for such a claim under the Tucker Act.4 See Reunion, Inc. v. F.A.A., 719
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`F.Supp.2d 700, 710 (S.D. Miss. 2010) (“Numerous cases have recognized that a plaintiff does
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`not have an implied cause of action under Bivens for a Fifth Amendment takings claim because
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`there is an express cause of action for such a claim under the Tucker Act.”). The court in
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`Reunion noted the Tucker Act, in coordination with the Fifth Amendment, provided an express
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`remedy for a plaintiff’s takings claim against a defendant federal officer; thus, courts have not
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`implied a cause of action for such claims under Bivens. Id. at 710 (citing Anoushiravani v.
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`Fishel, 2004 WL 1630240, *8-9 (D.Or. July 19, 2004)). The Reunion court dismissed the
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`plaintiff’s putative Bivens claim.
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`4 The Tucker Act, 28 U.S.C. §§ 1346(a)(2) and 1491(a), vests concurrent jurisdiction in the
`Federal Claims Court and the federal district court over any “claim against the United States, not
`exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or
`any regulation of an executive department, or upon any express or implied contract with the
`United States.” 28 U.S.C. § 1346 (a)(2). If the claim exceeds $10,000, the Tucker Act grants
`exclusive jurisdiction to the Federal Claims Court. 28 U.S.C. § 1491(a)(1).
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`8
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`Case 4:15-cv-00071-RC-CMC Document 55 Filed 03/17/16 Page 9 of 12 PageID #: 426
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`Persuaded by the reasoning of the Reunion court, the court in Estate of Redd v. Love,
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`2012 WL 2120446, *7 (D.Utah June 11,2012)(unreported) dismissed the plaintiffs’ takings claim
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`against two individual defendants on the same grounds, without prejudice to the refiling of a
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`Tucker Act claim in the Court of Federal Claims. Similarly, the Magistrate Judge would not
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`imply a damages remedy under Bivens with respect to Plaintiff’s takings claim under the Fifth
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`Amendment, finding an alternative remedy exists under the Tucker Act. She recommended
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`Plaintiff’s Bivens claims against Defendants be dismissed with prejudice, but to the extent any
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`claims asserted by Plaintiff could fall within the Tucker Act, the Magistrate Judge recommended
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`any such claims be dismissed without prejudice to refiling in the Federal Claims Court (rather
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`than transferred pursuant to 28 U.S.C. § 1631).5
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`The Magistrate Judge correctly found -- and Plaintiff has not objected to the finding –
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`that under the Tucker Act, 28 U.S.C. § 1491(a)(1), any claims seeking over $10,000 in damages
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`against the government for just compensation for public takings are required to be filed in the
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`Federal Claims Court. (Doc. No. 49 at 12). See Estate of Redd v. Love, 2012 WL 2120446, *7
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`(D.Utah June 11, 2012) (unreported). Nor has Plaintiff objected to the Magistrate Judge’s finding
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`that he is bringing a Bivens claim against the four defendants in their individual capacities, and
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`no Bivens claim is available to Plaintiff because of the Tucker Act. As noted by Defendants,
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`5 Jurisdiction is vested exclusively in the Federal Claims Court even if the United States is not
`named as a party if “any monetary judgment recovered” against a named federal agency or
`federal officials “would expend itself on the public treasury.” Amoco Prod. Co. v. Hodel, 815
`F.2d 352, 359 (5th Cir. 1987). As noted by the Magistrate Judge, Plaintiff has not asserted any
`claims against the United States through the Corps of Engineers. (Doc. No. 49 at 17 n. 7). Nor
`has Plaintiff sued Defendants in their official capacities as employees of the Corps. Rather,
`Plaintiff has sued Defendants in tort in their individual capacities. As this case cannot be
`characterized as an action primarily seeking monetary relief in excess of $10,000 from the
`United States, the Court does not construe this action to be one against the United States for
`purposes of the Tucker Act. Thus, no portion of this case as currently pled remains for transfer
`to the Federal Claims Court.
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`9
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`Case 4:15-cv-00071-RC-CMC Document 55 Filed 03/17/16 Page 10 of 12 PageID #: 427
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`Plaintiff concedes he “cannot pursue” Bivens claims against the individual defendants he chose
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`to sue in this case. (Doc. No. 53 at 15).
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`In his objections to the Report and Recommendation, Plaintiff states for the first time that
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`he wants to amend to eliminate his Bivens claim against the individual Defendants and instead
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`assert a Tucker Act takings claim against the government. He only does this because of the
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`findings contained in the Report and Recommendation. As pointed out by Defendants, Plaintiff
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`has never filed a motion for leave to amend his original complaint, nor has he presented the
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`Court with a copy of any proposed amendment as required by Local Rule CV-7(k).
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`Even if Plaintiff had properly sought leave to amend, the Court, in its discretion, would
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`deny any such motion because the Court would not have jurisdiction over any amended claim for
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`damages in excess of $10,000 (here, Plaintiff seeks $100,000) based on the government’s alleged
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`taking of his boathouse and dock. As noted above, that claim would fall within the exclusive
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`jurisdiction of the Federal Claims Court. See 28 U.S.C. § 1491 (1988).
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`In United States v. Foresome Entm’t Co., 318 F.Supp.2d 548 (N.D. Ohio 2002), a
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`landowner “briefly mentioned” in response to the government’s motion for summary judgment a
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`“Fifth Amendment takings” argument. The court found the argument was not substantively
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`relevant or procedurally appropriate because it did not speak to the issue before the court, namely
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`what an easement granted the government as it related to the structures at issue. Id. at 562, n.2.
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`According to the court, “if [the landowner] somehow believes that a viable takings claim will
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`arise from the forced removal of the structures here, such a claim can[not] . . . even be presented
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`to this Court; it must, instead, be brought before the U.S. Court of Federal Claims.” Id. Here, any
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`amendment would be futile as such a claim cannot even be presented to this Court. “Without
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`jurisdiction the court cannot proceed at all in any cause. Jurisdiction is the power to declare the
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`10
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`Case 4:15-cv-00071-RC-CMC Document 55 Filed 03/17/16 Page 11 of 12 PageID #: 428
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`law, and when it ceases to exist, the only function remaining to a court is that of announcing the
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`fact and dismissing the cause.”6 TXCAT v. Phoenix Group Metals, LLC, 2010 WL 5186824, *6
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`(S.D. Tex. Dec. 14, 2010)(unreported) (internal quotations and citations omitted).
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`CONCLUSION
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`The Court has conducted a de novo review of the objections in relation to the pleadings
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`and applicable law. The Magistrate Judge correctly recommended Plaintiff’s Bivens claim
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`brought against the four individual defendants Custer, Teague, Kula, and Temple and the
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`malicious prosecution claim against Custer (whether brought as a common-law tort claim or
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`under a Bivens theory) be dismissed with prejudice. Plaintiff has not objected to these findings.
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`And, as urged by Defendants, the Magistrate Judge correctly recommended that any
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`constitutional takings claim that could be asserted against the United States should be dismissed
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`without prejudice. As such, Plaintiff is not precluded from filing his constitutional takings claim
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`6 In TXCAT, the district court granted a defendant’s motion to dismiss based on the plaintiff’s
`lack of standing. The plaintiff sought to cure the standing defect by filing a motion for leave to
`file an amended complaint. The district court agreed with the defendants that if the plaintiff
`lacked standing, “the Court is not able to allow [plaintiff] to amend its complaint and to
`substitute a plaintiff with standing to create subject matter jurisdiction since the Court would
`have had no jurisdiction before the proposed amendment.” Id. at *3. As the district court
`recognized, “a plaintiff may not create jurisdiction by amendment where none currently exists.”
`Id.
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`Although it is not entirely clear, there is case law indicating the Court does not have
`subject matter jurisdiction over Plaintiff’s Bivens claims against Defendants. Compare Perez v.
`FBI, 71 F.3d 513, 515 (5th Cir. 1995) (finding the district court lacked subject matter jurisdiction
`to consider Bivens claims under the First and Fifth Amendments because Title VII was the
`exclusive remedy for such claims) with Zuspann v. Brown, 60 F.3d 1156, 1160-61 (5th Cir.
`1995) (Rule 12(b)(6) dismissal proper where Bivens remedy should not be implied). Either way,
`it is clear the Court would lack subject matter jurisdiction over any Tucker Act claim raised by
`Plaintiff in an amendment.
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`11
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`against the United States, which seeks over $10,000 in damages, in the United States Court of
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`Federal Claims. After careful consideration, the Court concludes Plaintiff’s objections are
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`without merit and are, therefore, overruled. It is therefore
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`ORDERED the Report and Recommendation of United States Magistrate Judge [Doc.
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`No. 49] is adopted. It is further
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`ORDERED that Defendants Joe L. Custer, Colonel Michael Teague, Brigadier General
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`Thomas Kula, and Major General Meredith W.B. Temple’s Motion to Dismiss for Lack of
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`Subject-Matter Jurisdiction, for Failure to State a Claim, and for Insufficient Service of Process
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`(Doc. No. 25) is GRANTED. It is further
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`ORDERED Plaintiff’s above-entitled and numbered Bivens cause of action is
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`DISMISSED WITH PREJUDICE. However, any constitutional takings claim that could be
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`asserted against the United States is dismissed without prejudice to filing in the Court of Federal
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`Claims, but with no inference that this court is of the opinion that any such claim would be
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`timely or meritorious.
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`12